The dismissal of an appeal against a work health and safety conviction in Queensland shows the need to demonstrate correct procedures have been followed if an accident happens, law firm Clyde & Co says.

“What matters most is evidence that the system was functioning on the day in question,” said partner Luke O’Kane, who acts for insurers in public liability claims.

“Missing witness accounts, particularly from supervisors or operators, significantly weaken defence prospects. For insurers and in-house legal teams, the judgment underscores the evidentiary challenges in WHS matters.”

Even if a company has detailed safety systems, training and site rules, there must be proof they are applied and enforced, he says.

Last month, the District Court of Queensland dismissed BMD Constructions’ appeal against its conviction over a 2020 incident in which a worker was hit by a grader.

Clyde & Co says the court’s reasons “reinforce a trend of judicial scrutiny” on how effectively safety systems are implemented, supervised and enforced.

The worker suffered a serious ankle injury after an incorrect “thumbs up” signal. No controllers or spotters were assigned, even though BMD’s documents identified this as a standard risk control.

BMD had extensive documented systems, training and site rules. But the court found key controls were not implemented on the day.  

The absence of testimony from the site supervisor and grader operator meant it was impossible to establish what instructions were given or not given.

“This evidentiary gap was decisive against BMD,” Clyde & Co said. “Deficiencies in supervision and communication were sufficient to establish the breach.”  

Businesses are expected to anticipate human error and maintain active oversight to prevent it, and the court’s approach highlights that “worker inadvertence or miscommunication will rarely break the chain of causation”.

Clyde & Co added: “The decision is a reminder that WHS risk, claims defensibility and incident response are tightly linked. Organisations must ensure their paperwork, supervision, communication protocols and exclusion zones are not only established but verifiably implemented during rapidly changing tasks. 

“In high-risk settings where people and plant interact, courts will continue to expect a proactive supervisory presence.”