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Director jailed over workplace death "Are you potentially liable"?

MT Sheds (WA) director Mark Thomas Withers was sentenced to two years and two months’ imprisonment in the Esperance Magistrates Court after pleading guilty to gross negligence leading to the death of a 25-year-old worker and the serious injury of another.

Therefore, under the Occupational Safety and Health Act 1984 (WA) (OSH) liability maybe held personal as evidence by the period of incarceration imposed on Mr Withers.

The Government of Western Australia is committed to repealing OSH and replacing same with the Work Health and Safety Act (WHS) on January 1, 2022. It will introduce a new offence, amongst other things, industrial manslaughter, with fines of up to $10 million and jail terms of up to 20 years.

 

Industrial manslaughter is extremely serious however that is not to say it is the only serious offence within WHS. As a general comment, the WHS Act places a higher burden for safety and health upon all who undertake workplace activities.

An underlying cornerstone principal of the WHS is proactivity. It is no longer possible for business owners, directors, or officers to ‘sit on their hands and hope that others within the organisation have safety and health issues under control so to speak’. The WHS imposes a non-delegable duty of care on Persons Conducting a Business or Undertaking (PCBU), directors and or officers. Indemnification or insurance for breach of the WHS provisions is statutorily prohibited.

 

A person or organisation who can demonstrate proactivity from the concept of ‘so far as is reasonably practicable’ may mitigate risk whilst at the same time promote a defendable position, should, for whatever reason a serious injury and or death occur.

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Company director jailed for a year and fined $1m over workplace death

A Brisbane director has been sentenced to one year in jail, and fined $1 million, in a Queensland-first Workplace Health and Safety trial.

Yesterday Gary Lavin, and his company Multi-Run Roofing, were found guilty of reckless conduct, after a 62-year-old roofer died at a worksite in 2014.

Whareheera Keepa Te Amo died after falling almost six metres off a roof at Wimmers soft drinks' Cooroy factory in 2014.

'Motivated by money'

After a week-long trial, Judge Glen Cash told the Maroochydore District Court, Mr Lavin had been motivated by money, in choosing not to erect safety rails at the site, which would have saved Mr Te Amo's life.

Wimmers soft drinks co-owner, Peter Lavin, also of Lavin Constructions, contracted the roofing job to Multi-Run Roofing.

As a result both brothers and their companies faced the charges.

The verdict

After two days of deliberation, the jury delivered majority verdicts of guilty for Gary Lavin and his company's charges, but were hung on Peter Lavin and Lavin Constructions' involvement in the incident.

In handing down Gary Lavin's sentence, the judge told the court Mr Lavin had been trying to maximise profits by not paying for the rails, despite being paid by his brother Peter Lavin $284,000 to complete the roofing job, inclusive of the cost of safety rails.

During the trial, two witnesses gave testimony that Mr Lavin said the rails would have been too expensive.

It was estimated the price of the safety rails would have been about $5,000.

"You've shown a flagrant disregard for proper safety methods, and were motivated by the desire to improve your and your company's financial position," Judge Cash told the court.

"Your conduct was so serious you must serve a period of time in custody.

"The risk was significant to those on the live edge (edge of the roof), the margin for error was narrow, and any fall would have had tragic consequences."

Mr Lavin and his workers had agreed on using safety harnesses and two scissor lifts instead, however they were not used by the workers on the day of the incident.