DPP v L Arthur Pty Ltd [2013] VCC 1051

3 Both counsel for the Crown and Arthur's agreed in the particular circumstances of this case, that it was appropriate to treat each of Counts 1 and 2 in the same manner. That neither count assumed a greater significance than the other.

4 Tendered as Exhibit A on the plea and annexed to these reasons was an "Amended Summary of Opening for Plea". This was not the subject of dispute, accordingly I briefly refer to the circumstances of the offending. CCTV footage depicting the offences and the operation of the gantry crane was also played on the plea hearing and tendered as Exhibit C, as well as still photos comprising Exhibit B.

5 On 14 July 2010 at Appleton Dock employees of both Arthur's and P & O Automotive and General Stevedoring ("POAG") were engaged in the loading of a "ball mill" weighing 27 tonnes. The gantry crane used to effect the loading was owned by Arthur's.

6 At the time of the incident Gregory Howell, employed by NRM. Aust Pty Ltd, was performing the role of driver of the truck used to transport the mill to the site. Mr Howell had manoeuvred the trailer of the truck on which the mill was situated to underneath the gantry crane and had alighted from the truck. Two employees of Arthur's were on the site, Mr Rick James and Mr Bob Impey.

Mr James had taken up a position on the back of the trailer on which the ball mill was situated and was acting in the role of spotter. Mr Impey was operating the controls for the gantry crane.

7 Two employees of POAG were on site, Mr Steven Piper the deceased man, and Mr Shane Stevens. Mr Stevens was proximate to the gantry crane and Mr Piper had taken up a position underneath one of the two gantry arms of the crane, gantry A. Mr Piper was waiting for gantry A to be lowered to a height that would enable the attaching of lifting chains to one end of the ball mill. Due to the failure of lifting unit 2 to retract while lifting unit 1 was retracting, the header beam on top of lifting units 1 and 2 slipped off the header plates and hit the ball mill fatally crushing Mr Piper. At the time the header beam fell,

Mr Impey, Mr Stevens, and Mr Howell were all within close proximity to gantry A and at risk of injury or death.

8 Between approximately January to July 2010 Arthur's gantry crane had been situated at the POAG's worksite at Appleton Dock, and had been deployed to transfer loads from road transport vehicles to ships and from ships to road transports.

9 Earlier on the morning of 14 July 2010 the gantry crane had been successfully deployed in the loading of a yacht. After the completion of that load,

Mr. James removed the hydraulic hoses connected to the power unit for lifting unit 2 of the gantry crane. This was done so the truck driven by Mr Howell would have access to the underneath area of the gantry crane without damage to the hydraulic hoses.

10 The disconnection and reconnection of the hydraulic hoses of the gantry crane was a normal part of the system of work involving the use of the gantry crane.

11 The hoses were not reconnected and thus there was no power supplied to unit 2 of the gantry crane enabling the retraction of this unit. The two units connected to a beam are to operate in synchronisation. Only unit 1 retracted causing the header beam to slip.

12 The operating manual of the gantry crane makes reference inter alia to:**

"The need to assign personnel to specific tasks at a pre lift safety meeting, whilst there was a "toolbox" meeting between the two Arthur's employees and the two POAG employees prior to the commencement of work on the day of the incident, it is apparent that this aspect of operating procedure so far as it related to the reconnection of the hydraulic hoses was not complied with.

The need to check to ensure that hydraulic hoses had been re connected after any disconnection, it is apparent that no particular employee had been assigned this task.

The need for the operator of the gantry crane when unable to have a clear view to have a signalman who can alert the operator to hazards which he can't see, this was not adequately complied with."

13 In assessing the seriousness of the breaches in this matter I was referred to DPP v Amcor [2005] VSCA 219 (06.09.05), (2005) 11 VR 557, 565 [35]. The Court stated as follows:

"35 When determining the appropriate penalty in a case of the breach of a statutory duty imposed for the purpose of protecting the lives and well being of those who may be affected by the breach, the foreseeable potential consequences must be taken into account as it is the avoidance of those consequences which, when considering the objective seriousness of the offence, constitutes the raison d'être for the establishment of the legislated regime in the first place. To a substantial extent the seriousness of a breach must be assessed by reference to those potential consequences and the measure of evidenced disregard concerning the safety of employees in the circumstances..."

**14 It was submitted on behalf of the Crown and little argument was directed against the proposition that the gantry crane and the task to which its use was directed, namely the lifting of potentially very heavy objects, were activities that carried with them obvious risk of serious harm or death. The failure to have a system in place to prevent operation of the gantry crane before the hydraulic hoses were connected was an obvious hazard. The death of

Mr Piper and the proximity of the other men to the falling gantry arm are evidence of the risk involved. I accept that a causal nexus exists between the death of Mr Piper and the breach by Arthur's.

15 The risk involved could have been mitigated by the implementation of an adequate system of hydraulic hose connection prior to operation of the gantry crane. It was submitted and I accept that this could fairly easily have been put in place by mechanisms such as the assignment of work tasks incorporating the disconnection and reconnection of hydraulic hoses.

16 Reference was made on the plea to the fact that Arthur's had, as of 10 June 2010, completed a risk assessment for the gantry work at Appleton Dock. The hazards identified included the disconnection of hydraulic hoses. The suggested risk control measure was that gantry operators check all hydraulic hoses and connections before starting work.

17 Mr James was one of several personnel who signed off on this risk assessment. Mr James was referred to in the Crown opening as being in charge of the worksite on the day of the breach and being the person who disconnected the two hydraulic hoses in question. To the extent to which risk assessment identified hydraulic hose disconnection and reconnection as a risk, the risk was not mitigated by the implementation of a system which adequately ameliorated the risk.

18 In The Queen v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321, at 331 [48 - 49]. The court stated:**

"... the formal adoption of a satisfactory safety management system will not have the beneficial effects intended unless it is accompanied by the employer's active implementation of the system in the workplace. The employer's duty will not be discharged simply by creating a safe system of work. The obligation requires the employer to ensure 'that procedures and instructions are actively and positively complied with by employees'. Not only must employees be appropriately trained but there must be ongoing supervision and compliance audits, to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer.

An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste through foolish disregard of personal safety to deliberate non-compliance with the prescribed safe system of work. In R v Australian Char Pty Ltd and DPP v Amcor Packaging Pty Ltd, this court has referred with approval to the observations of Harper, J in Holmes v R.E. Spence & Co Pty Ltd that an employer's responsibility for the safety of its workers will not be discharged unless the employer takes 'an active imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality'." (citations omitted)

**19 In mitigation it was put on behalf of Arthur's, and I accept that Arthur's was appropriately described as a good corporate citizen. This was evidenced by its lack of prior or subsequent criminal history, its charitable works and its efforts to implement appropriate safety and management systems after the incident of 14 July 2010.

20 I was told and accept that following the offences, Arthur's had decommissioned the gantry system which has not been used since, and had retrained every employee involved in operating cranes or lifting equipment. In addition Arthur's had had its safety management system externally audited three times, including a full accreditation audit in 2011, and provided particular support to its employees involved in this incident.

21 I was told and accept that Arthur's pleaded guilty at an early stage, that this carried with it a significant utilitarian benefit, there being no need for contested committal proceedings and none of the witnesses involved in the incident were required to be cross-examined. Further, I accept that Arthur's by its plea of guilty and related matters, has demonstrated its remorse for the offending which occurred.

22 I accept that Arthur's has improved its health and safety record significantly since 2003 to the present. This is evidenced by a reduction in the company's lost time injury rates, WorkCover claims and insurance premium rates (which, I am told, run at about one-third of the industry average).

23 These offences occurred nearly three years ago, and I accept the submission made that the primary mitigating feature of that delay has been the manner in which the company has used that time to proactively improve its work safety systems.

24 In light of the above, I accept the submission made on behalf of Arthur's that specific deterrence ought be accorded less weight in the sentencing equation. It was accepted however, that general deterrence has an important role to play in the sentencing of offences of this nature.

25 I was referred to a variety of sentencing decisions by both the Crown and counsel for Arthur's and I have had regard to these decisions. I note that absent from Arthur's offending is a history of previous incidents of a similar nature to the offences in question or an adverse attitude to the implementation of safety strategies.[1] Each case must of course be decided on its own particular circumstances.

26 A sentencing range was provided by the Crown of a fine with conviction of between $350,000 - $450,000. Counsel for Arthur's accepted that the appropriate range extended to the lower reaches of the crown range but submitted that a fine not exceeding $300,000 ought be imposed.

27 Balancing all matters, I convict and sentence Arthur's as follows:

On Charge 1, I fine the company with conviction $165,000.

On Charge 2, I fine the company with conviction $165,000.

28 I indicate but for the plea of guilty of the company, I would have fined the company a total of $450,000 equally divided as between the two charges.

30 MR CROUCHER: Yes, could we seek a stay of three months.

31 HIS HONOUR: Yes, I'll grant that, and are there any other orders that counsel are of a view that need to be made?

34 HIS HONOUR: Could I thank all counsel who've participated in the matter for their assistance, and the way in which they've approached the matter, and the helpful submissions that I was provided with.

[1] See DPP v Airroad Proprietary Ltd [2013] VCC 1960, at [21 - 25],[34 - 35], DPP v Nationwide Towing & Transport Pty Ltd [2011] VSCA 291, at [5 - 7], [16], [23 - 24], DPP v Coates Hire Operations Pty Ltd [2012] VSCA 131, at [18], [60 - 63].