A construction company’s attempt to argue its own safety procedures weren’t necessarily practical has been labelled “illogical” by a Queensland court upholding workplace safety penalties.
District Court Judge Dominique Grigg rejected BMD Constructions Pty Ltd’s appeal against its conviction, finding the company had adequate safety systems but failed to properly enforce them.
The case stemmed from a June 2020 incident at a railway construction site in Belyando, where BMD was working on infrastructure for the Carmichael Coal Mine project as a contractor to Adani Australia subsidiary Carmichael Rail Network Pty Ltd.
A labour-hire worker suffered a fractured ankle and 15-centimetre calf laceration when a grader drove over his ankle while he was laying geofabric in an excavation.
BMD was convicted of breaching sections 19(1) and 32 of Queensland’s Work Health and Safety Act 2011 for exposing pedestrian workers to risks from moving plant, resulting in a $100,000 fine. The grader operator, separately charged with breaching worker duties, was acquitted.
Brisbane Magistrate Mark Nolan’s 2024 ruling identified a critical communication breakdown before the collision. A second worker had given the grader operator a “thumbs up” signal indicating both workers were clear, but evidence showed the injured worker was unaware of this signal.
The Magistrate determined BMD failed to implement multiple control measures that could have prevented the incident, including:
Directing mobile plant operators to halt work until pedestrian workers relocated to safe positions;
Establishing exclusion zones between pedestrian workers and operating machinery;
Deploying spotters to monitor interactions between workers and plant;
Providing adequate instruction, training and supervision on safe work systems for mobile plant operations as outlined in relevant codes and safety documentation.
“The issue is not one of the absence of appropriate health and safety procedures and training, but rather it is one of what the Court finds on the evidence to be an insufficient compliance and enforcement of those procedures,” Magistrate Nolan stated.
BMD’s appeal contended that although the specified control measures appeared in its safety procedures, they weren’t reasonably practicable requirements under the WHS Act. The company emphasised that the grader operator had only resumed work after receiving a signal from a pedestrian worker, and argued the legislation doesn’t mandate every conceivable safety step.
The Work Health and Safety Prosecutor countered that Magistrate Nolan properly inferred BMD’s own safety management systems demonstrated these measures were both available and reasonably practicable to implement when needed.
Judge Grigg highlighted that BMD’s safety documentation explicitly recognised people-plant interaction as high-risk construction work with potentially “major” consequences without proper controls.
“Comprehensive attention was paid by BMD in its safety and training materials to workers’ awareness of hazards, the risks those hazards posed, and the steps which could be implemented to eliminate or minimise the identified risk,” she noted.
The evidence confirmed BMD was familiar with the prosecutor’s nominated control measures, which were prescribed in company documents for eliminating or minimising these specific risks.
“If these risk minimisation measures are nominated in BMD’s own safety system material, it is reasonable to infer that these measures were reasonably practicable to have been implemented at the time,” Judge Grigg said.
“It would be illogical to decide that the control steps identified within BMD’s own manuals were never genuinely intended to be implemented. It is reasonable to infer that these identified measures were not listed merely to pay lip service to safety measures but were listed so that they would be implemented.”
The Judge acknowledged some prosecution claims weren’t proven beyond reasonable doubt—specifically whether BMD failed to instruct the workers that grading should cease until pedestrians reached safety, whether exclusion zones were absent, or whether flags and witches hats would have been reasonable risk controls.
However, Judge Grigg found no error in the Magistrate’s conclusion that BMD failed to adequately supervise workers in safe mobile plant operation systems and didn’t implement spotters to monitor pedestrian and plant activities.
These measures were “within the power of BMD to control, supervise and manage,” she ruled, dismissing the appeal and ordering the company to cover legal costs.
