DPP v Benalla Health [2025] VCC 1909

(a) assessed for safe functionality prior to first use with the assessment for that chair recorded; and

(b) thereafter listed for preventative maintenance on a regular basis with each subsequent assessment recorded; and

(c) tagged or stickered with the frequency of assessment and the date of the last assessment to enable any employees to identify whether a further assessment was required.

iv. Benalla Health failed to provide and maintain the above system.

v. Persons other than Benalla Health's employees were exposed to risk including but not limited to Lorna Exton.

1. Turning to the facts of the case. At all relevant times Benalla Health was a public hospital pursuant to the Health Services Act 1988__[2] and was an employee pursuant to s5 of the Occupational Health and Safety Act 2004[3]. Benalla Health provides public healthcare services in the Benalla district including operating the Morrie Evans aged care facility located at 45-61 Coster Street, Benalla in Victoria. Mrs Lorna Exton had been a resident of the aged care facility since approximately late in 2019. At the time of her death in October 2021, she was 93 years of age.
2. Mrs Exton had been transferred to the aged care facility in 2019 after falling in her private residence and sustaining a head injury and a fractured hip. She never regained independent walking and was reliant on the staff to her around the facility, initially in a wheelchair and subsequently in a reclining chair. At times during the COVID-19 pandemic, the aged care facility did not allow residents to receive visitors but instead facilitated what were called 'fence visits' whereby visitors would meet residents through the external boundary fence on Samaria Road.
3. On 21 October of 2021, a fence visit was arranged between Mrs Exton, her

96-year-old husband Bernie who was also a resident at the aged care facility, with her son, Greg and his wife, Jenny. When Greg and Jenny Exton arrived at the facility, Lorna and Bernie were positioned in their chairs under the shade of a tree on a section of fake grass next to the fence. A staff member, Maria Cook, had positioned Mrs Exton for the fence visit in a reclining chair. The chair was from the acute ward in the Benalla Hospital. The chair had been at the facility for at least a couple of weeks and had been obtained because Mrs Exton had recently declined in her abilities. 4. At the conclusion of the hour-long visit, Greg Exton indicated to the staff that the visit was concluded. A staff member came over to both Mr and Mrs Exton to move them back inside the facility. The staff member stood behind Mrs Exton's chair and attempted to pull it back onto the paved walkway, however the chair did not move. The staff member inspected the front of the chair before returning to the back and pulling on the chair again. Another staff member pulled on the back of the chair. It completely separated from the base of the chair, causing Mrs Exton to fall backwards into the broken back section of the chair, which at this stage was on the ground. 5. There were two metal rods protruding vertically from the chair and they hit Mrs Exton's back. This made her visibly and audibly distressed, resulting in more staff arriving to assist her. A manual lifting device was used to lift her from the ground, and she was taken back inside the facility for assessment. An x-ray revealed a displaced fracture of the axillary portion of her right ninth rib and compression fractures of L1 and L3. Those later injuries are perhaps associated with osteoporosis and not the fall. 6. Over the next 48 hours, Mrs Exton was in significant pain and her mobility was restricted. She was prescribed opioids to reduce the pain and she was placed in palliative care on an end-of-life pathway on about 23 October and passed away on 27 October. 7. The facility notified WorkSafe of the incident. WorkSafe inspectors determined that the chair involved was a Montego air cool high care mobile battered powered chair purchased on 31 October 2014. The chair was decommissioned and disposed of after the incident. It appeared that the tension screws had loosened in it. Mexop is an online system used to schedule maintenance requests and inspections of the aged care facility. No maintenance, maintenance request or service history were located in that system relating to the chair. 8. The maintenance of equipment was the responsibility of Benalla Health, its engineering department. Equipment coming into the facility should have been put on a maintenance schedule, but there was no tagging system to let staff know when an item of equipment had been last assessed. Staff in the acute ward of the Benalla Hospital undertake a two-day orientation process to familiarise themselves with policies, processes and undertake buddy shifts at the commencement of their employment. They know to check the tension screws prior to using the chair. However, the aged care facility staff had borrowed the chair from the acute ward and had not undergone that training process. 9. On inspection by staff, it appeared that the tension screws and rod had worn on the chair. Inspectors were also supplied with email correspondence between Benalla Health and Fresenius Medical Care that noted that the chair was originally supplied with a strap with a clip lock around the back and seat frames to stop the back coming completely free. No strap-like device was on the chair on the day of the incident. If the screws were not sufficiently tight, there was nothing to prevent the backrest from being pulled free if force was applied to it, especially if the screws had worn and they were not tight enough. 10. It was reasonably practicable for Benalla Health to implement measures to eliminate or reduce the risk including the implementation of a system for the assessment of ongoing inspection and maintenance or all chairs used to transport residents. It was reasonably practical to ensure that each chair used to transport residents was:

a) assessed for safety functionality prior to use and the assessment of that chair being recorded; > > b) thereafter, listed for preventative maintenance on a regular basis and each subsequent assessment recorded; and > > c) a tag or stickering process with frequency of assessment, date of last assessment, listed to enable the employees to identify whether further assessment was requested.

11. The offence to which the company has pleaded guilty contrary to s23 of the Occupational Health and Safety Act carries a 9,000 penalty unit fine which translates to $1,635,660. Benalla Health does not have any prior convictions. An assessment of the objective gravity of Benalla Health's breach of the law is the primary factor in determining the appropriate sentence in this case. Subjective mitigating factors such as plea of guilty and previous good character play a subsidiary role although are not irrelevant.
12. In DPP v Frewstal Pty Ltd[5], the Court of Appeal outlined the principles by which a sentencing court should be guided when assessing objective seriousness for offences against the Occupational Health and Safety Act. Significantly, an offender is to be punished according to the gravity of the breach of duty owed under the Act, not according to the result or consequences of that breach. The gravity of the breach is measured by two factors. Firstly, the seriousness of the breach itself. That is, the extent to which the offender has departed from its statutory and, secondly, the extent of the risk of death or serious injury which might result from the breach.
13. An assessment of the extent of risk itself involves considerations of two factors. Firstly, the likelihood of the occurrence of an event as a result of the breach such as the incident that occurred here endangering the safety of others. Secondly, the potential gravity of the consequences of such an event and particularly where there is a risk of death or serious injury. Mrs Exton's death is relevant to this task as it demonstrates the degree of seriousness of the relevant threat to health and safety resulting from the breach.
14. The extent of the Benalla Health failure to meet its statutory duty will be informed by:
    1. The extent of the departure from the duty owed. That is, the measure of evidence disregarded concerning safety;
    2. The extent of the risk to health and safety created;
    3. The likelihood of potential harm occurring.
15. Section 20(2) of the Occupational Health and Safety Act[6] mandates that regard must be had to the following matters in determining what was reasonably practical in relation to ensuring health and safety:
    1. The likelihood of the hazard or risk concern eventuating;
    2. The risk of harm that would result if the hazard or risk eventuated;
    3. What the person concerned knows or ought to reasonably have known about the hazard or risk and ways of eliminating or reducing the hazard or risk; and
    4. The availability and suitability of ways to eliminate the potential risk and finally the cost of eliminating or reducing the hazard or risk.
16. The court received helpful submissions from both the prosecution and from Benalla Health. Mr Mandy of Senior Counsel on behalf of the Director submitted that the conduct of Benalla Health involved a clear departure from acceptable safety standards. He submitted that the law is clear, a duty holder is expected to be alert to risks in their industry and be proactive in identifying and responding to those risks. In doing so, the duty holder must adopt an active, imaginative and flexible approach to potential dangers. Mr Mandy submitted that in this instance, Benalla was (a) aware of the risk and (b) aware of the suitable and available measures to control the risks.
17. Mr Mandy submitted that despite being aware of the risk in measures, Benalla Health failed to maintain a relatively simple available measures which would have eliminated or reduced the risk. Mr Mandy submitted that the foreseeable potential consequences of Benalla Health's conduct included serious injury or death, particularly given the fragility of those who used the chair. He submitted that the likelihood of the risk eventuating was real.
18. In relation to the factors listed in s20(2) of the Occupational Health and Safety Act to which I have just referred, Mr Mandy submitted the likelihood of the hazard or risk concern eventuating was real. The degree of harm that could result if the hazard or risk eventuated including serious injury or death. In this instance the cohort of persons exposed to the risk were inherently vulnerable due to their age and infirmity. Plainly it was foreseeable, he submitted, that such persons were at risk of serious injury and death should the chair fail.
19. Thirdly, Benalla knew or reasonably ought to have known about the hazard or risk and the ways of eliminating that risk. Benalla Health was aware of the risk and measure. Further, as a matter of simple common sense, the failing to perform preventative maintenance on the chair at periodic intervals posed a serious risk of injury or death.
20. Fourthly, the measure that was available suitable that would have reduced the hazard or risk, the measures alleged are not novel, and are not idiosyncratic to the task. Rather, the measures are generic and available prior to the incident.
21. Fifthly, Mr Mandy submitted, the cost of reducing the hazard or risk was not an issue.
22. Mr Mandy correctly submitted that general deterrence has considerable importance in offences of this type. He submitted that the penalties under the Act served as a deterrent role in communicating to all employers the importance of workplace safety. The level of penalty imposed must compel attention to occupational health and safety risks in order to ensure that persons are not exposed to risks at their workplace, and I accept that submission.
23. Ms Beech acknowledged that by its plea, Benalla Health accepts that the potential consequences of the risk were serious injury or death and accepts that the risk was created by the failure to maintain a system for inspection and/or servicing of the chair in question. Benalla Health also accepted by its plea that the reasonable practical measures available to it reduce or eliminate the risk to ensure that chairs were assessed, maintained and tagged and stickered.
24. Ms Beech submitted that the following features of the evidence are relevant to the accused's moral culpability, and she submitted reduced that moral culpability considerably. Firstly, the chair came with no manufacturer's recommendation as to either frequency of inspection and/or servicing, nor the nature of servicing that should be provided. Secondly, there was no evidence as to industry standards identified by the prosecution such as what inspection and servicing regimes exist within other healthcare providers and, thirdly, there had never been any previous accidents of the kind with this particular chair nor type of chair.
25. Ms Beech submitted that the question of knowledge is relevant in assessing the extent to which the accused, the company, has departed from its duty and therefore the seriousness of the breach. In relation to the question of knowledge, Benalla Health was not aware of the non-compliance prior to December 2021. Ms Beech argued that it was not the case that the accused was on notice of all its non-compliance or of prior incidents and had taken no steps to address it. There is no evidence she submitted to say how long or briefly the non-compliance had been present.
26. Therefore, under the circumstances, there was not only no actual knowledge of non-compliance, but there is certainly no allegation or evidence that it was long-standing or that had been wilfully ignored while others were put at risk. Finally, Ms Beech submitted that this is not a case where there were no measures in place to reduce the risk, but rather the measures in place fell short of the particularised measures. I consider the culpability of Benalla Health falls at a mid-level for offences of this type. The aged care facility had only possessed the chair for a short period of time. The chair was borrowed from another section of the Benalla Health operations that did know of the risks associated with the chair, however this knowledge was not shared with the aged care facility. It clearly should have been.
27. The role the COVID-19 pandemic played in this tragedy is in my view also relevant to my assessment of Benalla Health's moral culpability. The lockdown had serious consequences for the health and wellbeing of the aged care facility residents. The use of fence visits was designed to promote the welfare of the residents. The use of the chair was in furtherance of that aim. The disruption of the normal operations of Benalla Health in my view contributed to the failure of Benalla Health to implement the steps that would have eliminated or reduced the acknowledged risk. This is not a case in my view of wilful ignoring of an obvious risk.
28. That said, the breach is serious and general deterrence assumes great significance. The frailty and age of the residents makes any risk more obvious and significant. I take into account the matters in mitigation urged by Ms Beech. The company pleaded guilty, thereby sparing the community the cost of a criminal trial and the family and witnesses involved the stress of such a trial. The company has no prior convictions despite operating in healthcare now for 90 years. These mitigating factors have some relevance to sentencing despite the importance of general deterrence.
29. I take into account Benalla Health's compliance with WorkSafe improvement notices and steps it's taken to eliminate the risk that existed from the use of the chair. In assessing the amount of any fine, I am obliged to consider the means and ability of Benalla Health to pay such a fine and its financial circumstances. The company is a fully government-funded entity. It is not a profit-driven large company. It provides health and welfare services to rural communities in the Benalla area.
30. As a not-for-profit entity, I believe it is relevant for this court to take into account that any fine imposed will reduce the company's ability to provide services to the Benalla area. Ordinary members of the community will suffer as a result of the fine I impose. I also accept and take into account the genuine expression of remorse expressed by the company for the loss and brief suffered by the Exton family. I have read all the cases referred to by both Mr Mandy and Ms Beech. There are similarities and differences to this case in each of them. Ultimately, each case must turn on its own unique circumstances.
31. Balancing the importance of general deterrence with the mitigating factors to which I have referred, the company, Benalla Health, is convicted and fined the sum of $230,000. But for the plea, I would have imposed a fine of $330,000.
32. Are there any other matters required, Mr Chisholm?
33. MR CHISHOLM: No, Your Honour.
34. HIS HONOUR: Anything?
35. MS GREEVES: I have instructions to seek a stay of that fine for two months.
36. HIS HONOUR: All right. Thank you, I will adjourn now until tomorrow.

[1] s23(1) Occupational Health and Safety Act 2004

[2] Health Services Act 1988

[3] s5 Occupational Health and Safety Act 20044.

[5] DPP v Frewstal Pty Ltd [2015] VSCA 266 - 47 VR 660

[6] s20(2) of the Occupational Health and Safety Act