[2016] ACTSC 13

A conviction is recorded and the defendant is fined $82,500.

OCCUPATIONAL HEALTH AND SAFETY - Prosecution under s 31(1) of the Work Safety Act 2008 (ACT) - failure to comply with safety protocols - foreseeability - early guilty plea - financial assistance to deceased's family - remorse - no evidence of systemic failure on the defendant's part - general deterrence - penalty imposed.

Inspector James v Terra Civil Pty Ltd [2011] NSWIRComm 31

Inspector Patton and Star Track Express Pty Ltd [2007] NSWIRComm 192

Inspector Peter Newman v Mainland Civil Pty Ltd [2003] NSWIRComm 288

Inspector Andrew Rowe v Roads Maritime Services of New South Wales [2012] NSWIRComm 43

1. The defendant company has pleaded guilty to one offence contrary to s 31 (1) of the Work Safety Act 2008 (ACT) alleging that it, on 12 December 2011, being a person who had a safety duty, failed to comply with that duty and that failure exposed someone, namely Wayne Vickery, to a substantial risk of serious harm and was negligent about whether that failure would expose anyone to a substantial risk of serious harm.

2. The maximum penalty for this offence as at 12 December 2011, if the offence was committed by a natural person, was a fine of 1000 penalty units, imprisonment for two years or both. As the defendant is a corporate entity it is only subject to the imposition of a fine. The maximum penalty that may be imposed is, therefore, a fine of 1000 penalty units which equates to $550,000.

3. An Agreed Statement of Facts was tendered at the sentence hearing and I do not propose reciting the facts in detail. It is sufficient to note that the offence relates to a fatal accident where Wayne Vickery, who for convenience I will refer to as the deceased, was struck by a reversing road grader on a site controlled by the defendant in Macgregor in the Australian Capital Territory. The deceased was a very experienced construction worker who had been employed by the defendant on a full time basis since November 2001.

4. By December 2011 he was nominally employed as a plant operator but in reality performed the duties of a leading hand which involved being a grade checker and a plant operator. He was a union representative and also the company's occupational health and safety representative.

5. The deceased, as I have noted, was fatally injured when struck by a reversing road grader. The effective cause of the accident was a failure by both the deceased and the driver of the road grader to comply with established safety protocols on the worksite. The deceased was working in an area where he should not have been working at the time that the grader reversed. The grader did not reverse in a straight line, as was clearly anticipated by the deceased, but changed directions, thereby placing him in the line of travel of the grader. The deceased and the driver of the grader did not establish eye contact before the grader began to reverse.

6. The defendant has accepted that it failed to provide and to maintain a safe workplace and safe system of work. A number of particulars are set out in the Statement of Facts but they essentially allege a failure to implement controls, protocols or rules which were in place and which were designed to avoid such an accident.

7. The director of the defendant, Paul Macor, gave evidence at the sentence hearing and described this as an unnecessary accident which should not have happened. It is very clear that if appropriate supervision had been put in place and the appropriate protocols and rules complied with, this accident would not have occurred. It is accepted by the defendant that it was negligent in failing to provide and maintain a safe workplace and safe system of work.

8. It must be acknowledged the defendant company had put in place appropriate protocols and controls designed to ensure a safe workplace and a safe system of work but on this occasion there was a failure to comply with those protocols and controls and a failure to detect that failure. There is no evidence that these failures were commonplace on the worksite. I am satisfied, however, that it was reasonably foreseeable that the deceased would be exposed to a substantial risk of serious harm by works being conducted in the way in which they were on this occasion.

9. I take into account that after the death of the deceased the company provided significant financial assistance to his family and helped to expedite the settlement of litigation arising out of his death. These actions, of course, cannot compensate the family of the deceased for his death but I accept that they demonstrate remorse on the part of those responsible for the company. I also take into account the fact that there has been a significant delay between the commission of the offence and the commencement of proceedings by the Director of Public Prosecutions.

10. After the offence occurred on 12 December 2011 coronial proceedings commenced, but, as I understand it, the hearing in relation to the death did not commence until May 2014. Those proceedings were adjourned from time to time to allow the Director to determine whether charges would be laid against the defendant.

11. It was not until August 2014 that prosecution proceedings were commenced against the defendant in the Magistrates Court. After the defendant was committed for trial to this Court in November 2014 an indictment was filed which included, as an ex officio charge, the charge to which the defendant has now entered its plea of guilty. The charges originally laid in the Magistrates Court were included on the indictment but after representations were made on behalf of the defendant to the Director of Public Prosecutions it was agreed that the Crown would accept a plea of guilty to the present charge in full satisfaction of the indictment.

12. I am, therefore, satisfied that the defendant's plea should be treated as a relatively early plea. I will reduce by 25 per cent the otherwise appropriate sentence in order to reflect this plea of guilty which evidences not only remorse on the part of those responsible for the company but also a willingness to facilitate the course of justice. The plea also had a very significant utilitarian value.

13. I accept that the defendant company has a good safety record and has not been prosecuted for any breach of statutory safety duty in its 32 years of existence. The evidence before me also established that the company took its safety duties seriously. The company had in place protocols and controls designed to ensure a safe workplace and a safe system of work. It also regularly trained its employees so that safety requirements were reinforced.

14. The parties drew my attention to a number of decisions in other states for similar offences. Some of these decisions are not particularly useful because the maximum penalties which applied were significantly greater than the maximum penalty for the offences which the defendant has entered a plea of guilty and in some cases there were questions about assessing the attribution of culpability between a number of parties. I will refer to those cases that I have found to be of assistance in assessing the appropriate penalty in the present case.

15. In the case of Inspector James v Terra Civil Pty Ltd [2011] NSWIRComm 31 the defendant company breached the Occupational Health and Safety Act 2000 (NSW) when its truck struck a labourer working beside the moving vehicle. The particulars of this case provided to me by the Crown suggest that the extent of the failure by the defendant company in that matter, Terra Civil Pty Ltd, to comply with its obligations to ensure a safe work environment was more egregious than the failure of the defendant in the present case. The maximum penalty for the offence under the New South Wales Act at that time was a fine of $500,000. Terra Civil Pty Ltd entered an early guilty plea and demonstrated remorse and contrition. There was also evidence of ongoing corporate commitment to maintaining a safe workplace. The company was convicted and fined $120,000.

16. In Inspector Andrew Rowe v Roads and Maritime Services of New South Wales [2012] NSWIRComm 43 the defendant was fined $150,000 after a worker working behind a reversing truck was struck and killed. The maximum penalty for the offence was a fine of $825,000. In that case there had been a failure to recognise the need for a risk assessment and a safe work method to protect people on foot at the worksite. It appears that there was an almost total failure to recognise the obvious risks posed by the movement of numerous vehicles on the worksite.

17. In Inspector Peter Newman v Mainland Civil Pty Ltd [2003] NSWIRComm 288 a crouching worker on a construction site was hit by a grader and fatally injured. The circumstances of this offence are very similar to those of the present offence. The maximum penalty for the offence under the Occupational Health and Safety Act 1983 (NSW), to which the defendant company, Mainland Civil Pty Ltd, pleaded guilty, was a fine of $550,000. The defendant was convicted and fined $78,000.

18. In his sentencing remarks in Inspector Newman v Mainland Civil Pty Ltd , Haylen J said at [34]:

I am satisfied that, on a consideration of all of the evidence, this is a serious breach of the Act committed by the defendant. As the Court has noted before, it is not infrequent that otherwise diligent employers with quite specific systems of safety nevertheless overlook simple and straightforward methods to ensure the safety of workers. In this case, as the prosecutor has pointed out, the risk of working near heavy machinery during earthmoving work had already been identified by the defendant as a workplace hazard. The defendant's response to that hazard was less than comprehensive: workers were instructed to stay clear of the machine and, where that was not possible, to make the machine operator aware of their presence. They were to wear coloured safety vests and safety attire. The seriousness of the offence is established by its foreseeability and the fact that there were quite straightforward and obvious steps available to address the risk. This was demonstrated by the April 2003 memorandum which requires that during a task of grading and measuring the ground level, the grader is to be completely stopped while the stringing and measuring is carried out; that there be no stringing or measuring carried out behind the grader; using the grader operator to assist in the stringing and measuring operations; requiring two people to carry out the stringing and measuring task with both employees to be instructed to spot for each other and other personnel in the work area. It is arguable from the above that the culpability of the defendant company, Mainland Civil Pty Ltd, was somewhat greater than that of the defendant in the present proceedings as there had apparently been no instruction by Mainland Civil Pty Ltd, the equivalent of the instruction given by the present defendant, to its employees that they were not to work in the area behind the grader. There also does not appear to have been any system of work such as existed at the Macgregor site requiring the grader operator and the grade checker to make eye contact before the grader commenced a cut and for directions to be given by hand signals.

19. Finally, in the case of Inspector Patton and Star Track Express Pty Ltd [2007] NSWIRComm 192 the defendant company pleaded guilty to an offence under the Occupational Health and Safety Act 2000 (NSW) which carried a maximum penalty of $550,000 for an incident in which a contractor was caught between the rear of a reversing semitrailer and a loading dock causing fatal injuries. The company was convicted and fined $150,000.

20. No penalty that this Court may impose can equate to loss of human life. The death of the deceased was tragic and avoidable, but it was not an intended consequence of the activities of the defendant company. The evidence reveals a high degree of negligence but for a short period of time. This is not a case in which there was a systemic failure to recognise the potential danger in the workplace and to put in place systems to guard against that danger. If the protocols and controls which the defendant had put in place had been adhered to this accident would not have occurred.

21. The death of the deceased was a consequence of a specific failure by employees on an isolated occasion to adhere to a safe system of work and of other employees to intervene when they observed that the appropriate and safe system of work was not being implemented.

22. Individual deterrence is not a significant factor in sentencing the defendant company because I am satisfied that it takes seriously its responsibilities for providing a safe workplace. It is necessary in sentencing the defendant company, however, to impose a sentence which makes it clear to others that a negligent failure to comply with a safety duty, which exposes someone to a substantial risk of serious harm, will have real consequences. But for the defendant's plea of guilty I would have imposed a fine of $110,000. I will reduce that by 25 per cent to reflect the plea of guilty. I will record a conviction and the defendant will be fined $82,500.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.