Construction giant‘s $250k fine after metal chain ‘propelled’ into worker’s head

Queensland’s largest privately owned and operated building supplies company has been fined $250,000 after its “completely inadequate procedure” resulted in a forklift operator’s horrific death.

Shay Kennedy, 38, was killed in a workplace accident at Pinkenba on February 8, 2023. Photo: Supplied.

Queensland’s largest privately-owned and operated building supplies company has been fined $250,000 after its “completely inadequate procedure” resulted in a worker’s horrific death.

Lyndons Pty Ltd pleaded guilty, through its chief executive Troy McDowell, in Brisbane Magistrates Court on Wednesday to one count of failing to comply with its health and safety duty. Mr McDowell was not personally facing any charges.

From December 2021 to February 2023, the company used an unsafe method to unload steel mesh frames from shipping containers at its Pinkenba base in Brisbane’s east.

Troy McDowell, chief executive of major Queensland construction supplies company Lyndons, leaves court. Picture: John Gass

During this 14-month period, workers towed the steel cages from the container using a forklift with a sling and metal chain attachment, instead of lifting them using a mobile crane with a dogman on the ground directing the qualified crane operator.

Workplace Health and Safety Queensland principal prosecutor Stipe Drinovac said Lyndons “failed to develop and implement a safe procedure” for the work, and the risk this created was realised on February 8, 2023.

Forklift operator Shay Kennedy, 38, suffered “catastrophic injuries” at the Pinkenba site and spent 16 days in intensive care in hospital before he died.

“Mr Kennedy was driving a forklift removing steel mesh from that shipping container held by a metal chain, which was attached to slings,” Mr Drinovac told the court.

“The sling snapped and the metal chain was propelled into his head while he was in the forklift.”

In their victim impact statement, Mr Kennedy’s family, who were in court on Wednesday, said he was working his “dream job” when he died.

“Shay had Asperger’s, but this didn’t stop him from going out there and living life to the fullest … he was warm and friendly and his mates called him a gentle giant,” Mr Kennedy’s aunty Susan Garry wrote.

“His sudden death has impacted this family on many levels. His parents’ health has rapidly declined … so much so they had to be put into full time care. They cannot come to terms with the loss of Shay.”

Shay Kennedy. Photo: Facebook.

Mr Drinovac also revealed the slings had broken multiple times during those 14 months, and “the steps to eliminate the risk were available to the defendant” but sadly “their way of completing the task was not changed until after that worker was killed”.

“This is something the defendant could have and should have foreseen,” he told the court.

“The defendants’ workers followed a completely inadequate procedure.”

Mr Drinovac said Lyndons was a large company capable of generating $120 million in a financial year, and described the offending as “extremely serious”.

The charge carried a maximum penalty of a $1.5 million fine, but Mr Drinovac told the court that a penalty of $250,000-$350,000 was appropriate in this case.

Mr Drinovac also asked for a conviction to be recorded, and that Lyndons pay up to $35,000 to fund the Office of Industrial Relations undertaking an education and awareness campaign on the safe use of forklifts in the industry and the misuse of forklifts in towing operations.

Defence barrister Alastair Smith, representing Lyndons, said that following the accident, the company had provided support to those involved and affected, changed its processes, and ceased doing this kind of work.

He asked that no conviction be recorded, Lyndons not have to fund the industry safety education campaign, and a fine of $180,000-$250,000 be imposed instead.

“Here the risk wasn’t so obvious, the statement of facts accepts that when the sling broke in the past the chain just fell onto the ground … this suggests it wasn’t an extremely high risk,” Mr Smith told the court.

“Part of the reason why my client has pleaded guilty is that we had a different method available to us, and we didn’t use it … there were attempts to comply with the obligation but we fell short, and we accept that.”

Mr Smith said Lyndons did not have any prior convictions.

In handing down his sentence, Magistrate Joseph Pinder said the punishment he imposed “in no way reflects the tragic and unfathomable loss” felt by Mr Kennedy’s friends and family.

He acknowledged that Lyndons was “a sophisticated defendant who had not been oblivious or slapdash in its approach to workplace health and safety” previously.

But the magistrate did categorise this offending as “objectively serious”.

Magistrate Pinder fined the company $250,000 and ordered they pay the workplace health and safety watchdog’s $1601 court costs.

But he did not record a conviction, and decided against ordering that an industry safety campaign be undertaken by the Office of Industrial Relations and funded by Lyndons.