The first individual prosecuted under the Northern Territory’s workplace heath and safety laws has been fined $20,000 for his role in the death of a father “in the prime of his life”, but advocates fear the penalty will fail to deter others from shirking safety responsibilities.
- It is believed Daniel Bradshaw died of drowning and blunt force trauma in 2017 after falling while exiting a barge
- Barge master Nicholas Mitchell has been fined $20,000 as he did not ensure access from the barge was safe
- It marks the first time an individual has been prosecuted under the NT’s workplace health and safety laws
In Darwin Local Court on Monday, former barge master Nicholas Mitchell was fined after pleading guilty for his role in the death of 37-year-old deckhand Daniel Bradshaw.
On January 8, 2017, Mr Bradshaw is believed to have fallen while disembarking the Sammy Express barge and died of drowning and blunt force trauma.
Judge Elisabeth Armitage found Mr Mitchell failed in his duty to ensure the workplace was safe, as he had not used an available gangway to provide safe access between the wharf and the barge.
The court heard workers leaving the barge were instead forced to jump across a gap onto a tyre and then climb ropes and chains onto the wharf.
It became even more difficult at low tide, as the gap that required jumping was wider.
Judge Armitage found this failure was a significant contributing factor in Mr Bradshaw’s death.
‘He allowed the risk to continue’
During sentencing, Judge Armitage highlighted the need to send a clear message to Territory workplaces and others around Australia that safety breaches would not be tolerated.
She said this case warranted particular attention, as since Mr Bradshaw’s death in 2017 there had been two other similar cases involving falls from vessels in the Northern Territory.
In her opinion, the access from the barge posed an “obvious risk”.
Even though the circumstances were unusual, as the barge could not anchor at its usual spot, she said the risk of injury should have been “entirely foreseeable”.
“I consider that Mr Mitchell’s breach in this case was significant and he should be charged at the mid to upper level of this type of offending,” she told the court.”Reasonable decisions were not made by the master and he allowed the risk to continue throughout that night.”
The judge read part of a victim impact statement written by Mr Bradshaw’s mother, Patricia Baird, who described the “devastating impact” his death had on their family and friends.
She said he was “in the prime of his life” when he was killed and was “the most loving and compassionate son”.
Mr Bradshaw’s partner of 16 years, Tanya Louth, also provided a statement, saying their two children were bereft after the loss of their dad.”Nothing can replace the loss of their warm and loving father,” it read.
She said she was horrified to learn of the conditions and that such dangerous practices can go on.
But Judge Armitage also said other factors played a role in Mr Bradshaw’s death, including his own decision to drink excessively and not sleep in the hours beforehand.
Last year, the barge’s owner, Conlon Murphy, which trades as Barge Express, pleaded guilty and was fined $190,000 after failing to ensure safe access to the barge, failing to hold regular safety meetings and failing to ensure workers refrained from alcohol and were not fatigued.
Judge Armitage said she considered Mr Mitchell’s annual income, his poor mental health since the incident, his remorse and the fact he had pleaded guilty, before fining him $20,000 and ordering a conviction be recorded.
The maximum penalty for the breach under the act was $150,000.
Calls for more serious penalty
Speaking to the ABC, Ms Louth said there was no closure in today’s sentencing for her family.
She was appalled by the penalty, particularly as it would set a precedent for other cases going forward.
“It’s disgusting, to be honest,” she said.”Today for us should be a time of relief and closure after these last couple of years. But it just isn’t because there’s no justice in it.
“Seeing as this is a precedent case of a worker in the Northern Territory being prosecuted, it’s very disheartening.
“The bar should have been set a lot higher than this. Because every case that comes after this is taken into account.”
In her opinion, the case should highlight the need for the Northern Territory to bring in industrial manslaughter laws, which a recent review also recommended.
These would open the door for workers to be sent to jail under workplace health and safety laws.
“There is no deterrent in this for other companies or other workers or bosses or duty holders because the penalty is too small,” she said.
“In most cases insurance companies pick up for larger companies to pay off their fines.
“With industrial manslaughter there is jail time. It will show that there is a significant penalty.
“They get a conviction, they get sent to jail and life is a bit tougher.”
Maurice Blackburn lawyer Melissa Meyers echoed her sentiments.
While she said the judge made a reasoned argument, she believed a tougher penalty was needed in this case.
She was also concerned that two similar incidents had occurred since Mr Bradshaw’s death and said it showed boat safety was not taken as seriously as safety on land.
“We accept that this is the first prosecution of an individual worker in the Territory,” she said.
“And we applaud the fact that this prosecution has gone ahead.”However, we would like to see a more serious penalty imposed for these kinds of circumstances.
“There have been suggestions about bringing in industrial manslaughter laws, which are a lot tougher and the penalties are a lot tougher in circumstances exactly like this, and we would call for the Government to be looking at that very carefully, especially in light of this decision”
April 6, 2019