Prosecution Details

Being an employer, failed so far as was practicable to ensure that the safety or health of a person not being his employee, was not adversely affected in part as a result of the work in which he was engaged in contravention of section 21(1)(b) Occupational Safety and Health Act 1984 and by that contravention caused the death of that person; contrary to section 21(3) of the Act.

The defendant is the owner and operator of a business in Esperance which, amongst other things, sells and fits 4-wheel drive accessories. An area of the business premises is dedicated to the retail display of accessories including roof racks, spotlights, side rails and water tanks.

At the time the defendant employed a part-time secretary, a contract mechanic and, on a casual basis, his wife.

On 23 December 2002 the defendant was displaying a GQ Nissan Patrol coil sprung bull bar in the retail showroom. The bull bar was later determined to weigh 47.9 kilograms. The bull bar was resting on a display stand, which in turn was resting on the floor.The bull bar was not fixed to the display stand and the display stand was not fixed to the floor.

The bull bar and stand had been in the same position on the shop floor of the showroom for about 2 months before the date of the offence. The stand had been constructed by the defendant 2 or 3 years before the date of the offence. The defendant had made the stand himself for the express purpose of displaying bull bars and it had been used by the defendant for that purpose continuously since its construction. The GQ Nissan Patrol coil sprung bull bar had been on the display stand for about 18 months prior to the accident.

As at the date of offence the defendant estimated that about 100 people visited the showroom each week and that about 20 or 30 children came into the showroom with their parents.

On 23 December 2002 the deceased's father visited the defendant's business premises. He had his daughter, the deceased (aged 2 years and 5 months), with him. The father first attended at the showroom where he spoke to the defendant's secretary. The defendant was not at the premises at the time. The father wished to speak to the mechanic employed at the premises and he was directed to the workshop by the secretary and he went there and spoke with the mechanic.

The defendant arrived at the premises at about 10.30am and the defendant, the father and the deceased went back to the showroom so that the father could inspect some roof bars for a vehicle he owned.

The father had hold of the deceased's hand as they entered the showroom and the father says the deceased tried to draw him toward the bull bar display, he thinks because it had tinsel on it. The father let go of the deceased's hand so that he could talk with the defendant at the roof bar display which was about 2 metres from the bull bar.

No-one saw what happened next but within a very short time span a crashing sound was heard. The deceased was lying on her back on the ground. The bull bar was face down on the ground and the stand had been upended. There was a gap of about 30cm between the deceased's head and the bull bar.

The deceased was unconscious and not breathing. She had a mark on her forehead. Although she did begin breathing again the deceased never regained consciousness and was declared dead at Princess Margaret Hospital at about 5.00pm on Christmas Eve 2002.

The stand was extremely badly designed for its purpose. The toe of the stand extended to the front only 7.5cm past the perpendicular legs of the stand. This meant that the bull bar and stand could be toppled forwards by a child pulling upon the bull bar. An independent engineering report into the stability of the stand was commissioned by WorkSafe. The consultant engineer concluded his report in this way:

"In summary, it is my opinion that a child having the physical stature and weight of the subject child could easily have pulled over the display stand by grasping the lower bar, leaning back or swinging on it."

The defendant initially pleaded not guilty but changed his plea to guilty before the trial commenced.

In his reasons for his decision the Magistrate stated;
"[This is] clearly a case in which there must be a penalty which at least makes it clear to others who may not be as concerned as the defendant clearly is, that they must really sit up and take notice to ensure that events like this simply do not happen. For that reason its not a question of imposing a nominal penalty. The maximum fine is $200,000. The court must take account of the fact that the defendant in this case is not a large corporation. He's a small businessman, an individual, who is going to have to meet this penalty personally. So as I say and repeat, the penalty which I believe is appropriate is not in any way intended to in any way reflect the value of the child's life."