Severity of injury only one factor when determining penalty

Thursday, 02 July, 2009

In the court case of Adam Low and Manchester Roofing, the Industrial Court of Queensland held that when determining a penalty to impose for an OHS breach, the severity of an injury suffered to an employee is only one factor to be considered.

Workplace Health and Safety Queensland opposed a $35,000 penalty to the employer, suggesting the fine was disproportionate to the injury suffered to an employee who fell 3 m and fractured his skull, bruised his brain and lost hearing in his right ear. It was argued that the fines imposed were too low when compared to the types of injuries suffered in other cases and, given the injuries, the fine should have been higher.

Industrial Court President DR Hall held that, based on the facts of the case, the penalty handed down was appropriate and fell within the same cluster of cases where similar fines were imposed.

Andrew Douglas, principal of Douglas Workplace & Litigation advises: “While the injury sustained to an employee will have an impact on the fine imposed, it is not the only factor to be taken into account. Other factors include the employer's cooperation, early plea of guilty, prior breaches, mitigatory circumstances and the type of corporate citizen the employer is. The key to prosecutions is the willingness of the business to correct its safety management system.”

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