DPP v Yarra Valley Water Ltd; DPP v Blaxland Pacific Pty Ltd [2006] VSCA 279

DPP v Yarra Valley Water Ltd; DPP v Blaxland Pacific Pty Ltd [2006] VSCA 279 - VSCA 2006 case summary — Zoe

1 I have had the advantage of reading in draft the reasons for judgment of King, A.J.A. and I agree with her Honour that the appeals should be dismissed.

2 As is so often the case, the question of whether a sentence is manifestly inadequate does not permit of much discussion. Accordingly, I do not propose to set out at length the reasons for my conclusion. It suffices to say that I agree in substance with the reasoning expressed in her Honour's thorough and careful analysis. I wish, however, to add some brief observations on three matters.

3 First, this case results from a tragedy. The victim of the offences lost his life in the course of his work through no fault of his own. That could have been avoided if the respondents had known more about the techniques employed in their operations. It is because of their failure to know and to take appropriate action that they fall to be punished.

4 Secondly, this case is a long way from Amcor,[1] to which King, A.J.A. refers in her reasons; for there was here no attempt to cut corners for the sake of supposed economies or any calculated disregard of the safety of men. To the contrary, and despite the fact of the offending, the evidence bespeaks two organisations committed to the safety of their workforce and whose modus operandi was to do and pay for what they understood to be necessary to achieve it. The tragedy here came about because of a lack of knowledge and ultimately human error.

5 Thirdly, in Amcor the court dealt at some length with the concept of double jeopardy in Crown appeals against sentence involving corporate respondents.[2] What was said there was largely referable to public corporations, of which the respondent in that case was one. Of course, similar considerations may apply to private companies. But in the case of small or family private companies the consequences

may more closely resemble the effects on a natural person. And in this case, as the evidence disclosed, that is so for the second respondent.

6 No one denies that the nature and gravity of these offences was serious and therefore that they warranted substantial penalties. General deterrence is the pre-eminent sentencing consideration in matters of this kind and therefore any contravention of s.21 of the Occupational Health and Safety Act 1985 which results in death or serious injury is liable to be visited with heavy penalties.[3] But for the reasons essayed by King, A.J.A. in her judgment, the level of culpability in this case was not high and it is apparent from improvements made to the respondents' systems since the offences were committed that there is no need for specific deterrence.[4] It should also be understood that both respondents were without any prior convictions and according to the evidence each had a well deserved reputation for safety in the workplace.

7 In the circumstances, I share with King, A.J.A. the view that the penalties imposed below were within the range. But, even if that were not so, I add that having regard to the principle of double jeopardy as it applies in Crown appeals against sentence, I would be disposed in the exercise of discretion not to intervene.

[13]

18 Hydrostatic pressure testing is testing by the use of water not by the use of high pressure air. It was frankly conceded by Mr. Priest for Blaxland that the pipe in question was longer than three pipe lengths. What caused the endplate and the other pieces of debris to be blasted from the end of the mains water pipe was the use of air pressure testing of up to 100 lb per square inch or as it is referred to 100 psi.

19 Several experts had provided statements for the brief and reference was made to those statements in the summary of the prosecution case. Their evidence was to the effect that high pressure testing of water mains using other fluids such as air is not permitted anywhere in Australia. Low pressure air testing is permitted for testing non-pressure pipelines, that is sewers, in which case the maximum air pressure used is generally 50 kPa.

20 There were then a series of statements as to the knowledge of certain persons as to the type of testing that was being performed. In brief they indicate that Michael Doherty, the director of Blaxland, was aware of precisely what was going to be done in the way of testing. He had, instructed his sub-contractor how to set up the end cap on the pipe, discussed the dangers of air pressure testing, checked the packing and given directions that the air pressure testing be carried out on the particular day. As part of the general safety issues when testing in this manner he had stated that no workers should be standing in front of the end cap while testing was in progress. Mr Doherty equally had knowledge of the terms of the specifications of Blaxland's contract with Yarra Valley Water.

21 Robert Batley, Yarra Valley Water's site auditor, was informed by Mr Doherty on the day of the incident that he was going to expose the collars of the pipes to try and find any air leaks. He was advised that the testing would be done to a pressure of 100 kPa. He stated to investigators that to his knowledge there was no detailed procedure for testing with air or water for Yarra Valley Water. He said all testing was performed by contractors, most used hydrostatic testing, although air testing was not unusual. He passed on information to Laurie Harris, who was the project manager for Yarra Valley Water, that air pressure testing had been used by this contractor in testing the bridge.

22 Mr Batley took no steps to halt the testing nor did he refer Mr. Doherty to any of the requirements of the specifications within the contracts, the codes or the Australian Standards.

23 Laurie Harris was the project manager at Yarra Valley Water, she had not visited the site at the time of the incident. She was unaware that air pressure testing was only recommended for low pressure tests and, more particularly, for sewers. She was unaware of the type of pressure required to properly test the water mains as they were being laid.

24 Joanna Siles was Yarra Valley Water's team leader and superintendent of the project. She led a team of eight project managers and one field auditor in delivering the Yarra Valley Water capital works programme. She was aware that it was industry practice for testing of high pressure water mains to occur by hydrostatic testing. She knew that air pressure testing did occur but that was, in her understanding, at low pressure and she knew that the air pressure testing should not exceed 50 kPa.

25 The last paragraph of the summary produced by the appellant to the Court stated:

[17]

28 It has been made clear in numerous cases[9] that this Court does not interfere with the sentencing discretion of sentencing judges merely because it disagrees with the sentence imposed or thinks it is a sentence less than the Court itself would have imposed. The inadequacy of the sentence must be clear and egregious. The sentence must be so disproportionate to the seriousness of the crime as to shock the public conscious and undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.

The Appeal

Ground 2

29 In relation to ground 2 of the appeal it was submitted that his Honour erred in characterising the circumstances of the offence as a tragic miscalculation arising out of a failure by officers of the respective companies to appreciate the difference between lower pressure testing of sewers as compared to high pressure testing of water mains.

30 The appellant submitted that several of the respondents officers, namely Sam Austin, Neil Rickard and Joanna Siles, were aware that high pressure air testing was inappropriate, and that hydrostatic pressure testing should have been used on the pipeline. Equally, however, they submitted that several of the respondent's officers, namely Robert Batley and Laurie Harris were not aware that high pressure air testing was not permitted. It should be noted that the two officers of the companies that were either informed of the situation or present and making decisions, if any, on the day were the two officers of the first respondent who were unaware that high pressure air testing was not permitted.

31 It was submitted in argument in this court that the true failure on the part of Yarra Valley Water was the failure to ensure that the knowledge and information relating to testing was communicated effectively and efficiently to those working in the field. That appears to me to be a correct characterisation of the problem that occurred within Yarra Valley Water. But unfortunately that submission was not put before the learned sentencing Judge.

32 Equally, in respect of the other respondent Blaxland, the appellant submitted that Michael Doherty was aware that air pressure testing was dangerous, knew that there were risks associated with the method of testing adopted, and knew that in using the form of testing he was exposing the employees to a grave risk. The appellant submitted in oral argument that Blaxland, through its employee Michael Doherty, was aware that high pressure air testing was not permitted to be used in pipes of this type and thereby knew that he was exposing the employees to grave risk. In support of this argument the appellant relied upon what is contained in the summary ,which reads in the relevant part;

[25]

37 In this court, counsel for the appellant referred the court to various aspects of the materials contained in the depositions, which included the Australian standards, the contract specifications, the statements of the expert witnesses and the statement of the respondent's employee Michael Doherty. Nowhere within that material is there anything that discloses his knowledge, and ergo that of the respondent, of the dangers of testing these particular pipes in this manner. There is within those documents material that demonstrates his knowledge that air pressure testing is generally potentially dangerous, and evidence that the respondent's employee took steps to deal with what Michael Doherty perceived to be the dangerous aspects of that type of testing. There is certainly evidence that the respondent was in breach of his contractual obligations to perform hydrostatic testing. But in my view there is no evidence that he was aware that high pressure air testing of PVC water mains pipes was absolutely not permitted, nor that he was aware that he was placing employees in a grave position of danger by performing testing in this manner.

38 In relation to the findings His Honour made it is clear that the learned sentencing Judge was not determining that all officers of the respondents were unaware of the differences of the testing procedures, but stating, in my view correctly, that what caused the actual blast was a failure by the relevant, immediately present officers of the two respondent companies to appreciate the difference between the two forms of testing on the different types of pipes that had been tested previously and were tested on that day.

39 I am of the view that it was clearly open to the learned sentencing judge to characterise the circumstances of the offence in the manner that he did, and no identifiable error has been demonstrated in relation to ground 2.

Ground 1

40 Ground 1 is that the sentence was manifestly inadequate. This ground does not permit of a great deal of argument and counsel for the appellant has enumerated a number of factors upon which he relies being the particulars marked (a) through (f) noting that there are two particulars marked (b).

41 Particular reliance was placed on the decision of DPP v Amcor Packaging Australia Pty. Ltd.[12] by counsel for the appellant. In that case an employee operating a paper manufacturing machine with large unguarded rollers was caught and drawn into the rollers of the machine and died. The use of the machine required employees to sometimes work in extremely close proximity to the open rollers. Two risk assessments had been undertaken regarding this particular part of the machine, both in 1998, which identified risks of entanglement, crushing, shearing and others. In July 2002 an incident occurred which was of a similar nature to the incident that caused the death of the employee in 2004, in that, he was sucked towards and into the rollers of the machine whilst performing his duties of guiding the paper. The company had assessed the risk of a serious incident as low, but there was certainly an awareness of the potential dangers of the machine in question.

42 In the joint judgment of Vincent, Eames and Nettle JJA, it was submitted, the Court indicated the approach that ought to be considered in the assessment of the appropriate penalty for offences of this nature when it referred with approval to the decision of Workcover Authority of New South Wales v Profab Industries Pty Ltd[13] which stated:

At a glance

Court

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Judgment (30 paragraphs)

Legislation Cited (2)

Cases Cited (6)