The ACT Industrial Court case of B. McKie v Kenoss Contractors Pty Ltd, which concluded on Wednesday with the defendant being fined $1.1 million over the death of truck driver Michael Booth in 2012, is a milestone in the territory's hitherto blighted workplace safety landscape.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
Mr Booth was delivering a load of gravel to a road resurfacing project run by Kenoss Contractors when his tip tray contacted overhead electric wires. Mr Booth jumped from his truck, collapsed, and later died. The court determined that a number of basic safety breaches led to Mr Booth's death.
There were no safety signs or flags to warn of the live power lines, access to the work site was poorly managed, with no locks, and it appeared as if it was designed for dumping material.
The power lines had not been turned off during the work, and no spotter was used.
As a result of the electrocution, Kenoss Contractors was charged with two breaches of the Work Health and Safety Act of 2011, one intended to ensure the health and safety of workers and the other ensuring they are not exposed to risk of death, serious or illness.
Industrial Magistrate Lorraine Walker handed down her guilty verdict against Kenoss last June, reserving her sentence. She said the risks had been known to Kenoss and simple and affordable methods could have avoided the death.
A separate case brought against a Kenoss officer, Munir al-Hassani, for breaches of the WHS Act was unsuccessful, however,with Magistrate Walker finding the prosecution had not proved beyond reasonable doubt that Hassani's control or influence was sufficient to meet the definition of an "officer" under the Corporations Act.
Mr Booth's death was one of three which happened in short order in Canberra's construction industry – prompting the government to commission the Getting Home Safely report. Among the findings was that the ACT's serious injury rate was 31 per cent higher than the national average. The industry's long-term injury performance was found to be 50 per cent worse than most other jurisdictions and double the national average. The government quickly accepted all 28 of the report's recommendations.
The Kenoss prosecution is also noteworthy for being one of the first brought under the WHS Act, the main object of which was to provide for a balanced and nationally consistent framework for securing the health and safety of workers and workplaces.
The prospect that the fine will go unpaid has removed some of the gloss of ACT WorkSafe's court victory, however. Kenoss Contractors went into voluntary liquidation in October 2013.
No representatives of the company or its liquidators attended court to hear the landmark decision.
Nonetheless, the Kenoss Contractors fine (allied with the government's decision to ensure that WorkSafe ACT can employ more inspectors) sends a strong and clear message to the construction sector and employers everywhere. Breach workplace safety obligations and you will be found out, charged, prosecuted and punished.
