The Victorian Supreme Court has delivered its first sentence under Workplace Manslaughter provisions of the Victorian Occupational Health and Safety Act 2004 (OHSA) since they were introduced in July 2020.

The offender, a stonemasonry business LH Holding Management Pty Ltd, was sentenced in the Victorian Supreme Court on 19 February 2024. The Court recorded a conviction and issued a $1.3 million fine to the company after it entered a guilty plea to a charge of workplace manslaughter.

The sole director of the company, Laith Hanna, was convicted of lesser charges and sentenced to a community corrections order for 2 years, with conditions to complete 200 hours of unpaid community work and to complete a forklift course.

In addition, both Mr Hanna and the company were ordered to jointly pay $120,000 in restitution to the family of the deceased worker.

What is Workplace Manslaughter?

An employer or person commits the offence of ‘workplace manslaughter’ when it/they engage in conduct which is negligent and breaches an existing duty owed under the OHSA and that breach causes the death of a person. Conduct (both positive acts and omissions) will be negligent if it involves both a great falling short of the standard of care that a reasonable person would take in the circumstances and there was a high risk of death, serious injury or illness.

What happened?

On 21 October 2021, Mr Hanna was operating a forklift at a company factory in Somerton. Mr Hanna loaded an overhead crane with an A frame, and then drove across a sloped driveway with the load. A nearby subcontractor tried to assist with stabilising the load, however the forklift tipped, crushing the worker who subsequently died as a result of the injuries sustained from the incident.

Mr Hanna’s evidence was that he had told the worker to move prior to the incident, and that he believed the worker was out of the way when the forklift was operating.

What were the charges?

It appears that following an investigation by WorkSafe Victoria, Mr Hanna himself was initially issued with charges against him in his role as an officer (it is unclear from the information available whether this was a workplace manslaughter charge). However, following a negotiated plea, the charges were amended and a charge of workplace manslaughter was added against the company.

The charges against LH Holding alleged that it:

• owed a duty to the deceased under s.26 of the OHSA to ensure a safe workplace, and breached that duty by failing to take the following reasonably practicable steps:
• ensuring that the forklift was driven with the load as low to the ground as possible;
• ensuring that the forklift was driven in reverse down a slope or incline;
• ensuring that the forklift was only operated when other people were at a safe distance; and
• ensuring that the forklift was not driven across or turned on a slope or incline;
• had engaged in negligent conduct because, by failing to take the above reasonably practicable steps, it fell well short of the standard care taken by a reasonable person in the circumstances; and

• the conduct caused the death of the worker.

Owing to LH Holding’s guilty plea, the Court did not have to consider whether its conduct met the threshold of ‘negligent’, that is ‘a great falling short of the standard of care that a reasonable person would take in the circumstances’. It therefore remains to be seen how a court might apply this test in such matters.

Mr Hanna did not himself avoid personal liability, entering a guilty plea to charges that, as an officer of the company, LH Holding’s failure to discharge its duties to ensure a safe workplace (s.26) were attributable to him in circumstances where:

• he was the sole Director and shareholder of LH Holding, and was therefore able to make decisions about safety measures;

• he operated the forklift and thereby caused the death of the deceased; and

• he knew of the risks at the workplace; and

• LH Holding's contravention was not attributable to an act or omission of any other person.

What were the sentencing considerations?

The offence of workplace manslaughter carries significant penalties – 100,000 penalty units for a body corporate (approximately $19.2 million currently), and up to 25 years’ imprisonment for a natural person.

In issuing his sentence, Justice Michael Croucher made a number of observations in mitigation that contributed to the penalties issued to LH Holdings and Mr Hanna:

• Mr Hanna (both personally and on behalf of LH Holdings) cooperated with the investigation, and made a number of early admissions;

• Mr Hanna had already provided substantial financial assistance to the family of the deceased worker;

• Mr Hanna showed genuine remorse;

• there were no prior convictions;

• the incident had severely impacted Mr Hanna’s mental health; and

• the guilty pleas avoided a costly and lengthy trial.

Notably, Justice Croucher confirmed that, but for the plea of guilty, LH Holdings would have been convicted and fined $2 million.

What does this mean for high risk industries?

Whilst the penalties issued in this matter are still well short of the maximum available, they are nevertheless significant and potentially crippling for the company and Mr Hanna. The fact that WorkSafe is actively pursuing workplace manslaughter charges where the potential consequences are so significant provides a timely reminder for employers to undertake a thorough review of your approach to health and safety.

Employers should:

	Understand those operations of your business that could result in a fatality and that you have an up-to-date knowledge of current best practice in addressing those risks, including being across the safety alerts issued by peak bodies to ensure your operations are compliant with industry standards/best practice.
	Have robust assurance systems so that you are confident that the control measures are implemented and policies, procedures and training are implemented.
	Ensure you have appropriate systems in place for staff to report health and safety issues including near misses or hazards that have not yet resulted in any injury.
	Make sure you have robust incident response systems in place to address serious workplace incidents, including how to deal with Regulator investigations to avoid inadvertent admissions.
	Take the time to refresh your staff OHS training, including making sure your Board and other Executive staff are aware of their potential obligations under the ‘officer liability’ provisions of the OHSA.