BHP Billiton Iron Ore Pty Ltd v Capon
[2014] WASC 267 (S)
•28 JULY 2014
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL |
| CITATION | : | BHP BILLITON IRON ORE PTY LTD -v- CAPON [2014] WASC 267 (S) |
| CORAM | : McKECHNIE J | ||
| HEARD |
| ||
| DELIVERED |
| ||
| PUBLISHED |
| ||
| FILE NO/S |
| ||
| BETWEEN |
|
AND
PETER CAPON
Respondent
ON APPEAL FROM:
| Jurisdiction | : | MAGISTRATES COURT OF WESTERN AUSTRALIA |
| Coram | : | MAGISTRATE P E MALONE |
| File No | : | PH 1917 of 2011 |
| Catchwords: |
Occupational health and safety - Mine safety - Penalty for breach of general duty
[2014] WASC 267 (S)
Legislation:
Mines Safety and Inspection Act 1994 (WA), s 9A(3)
Result:
Appellant fined $60,000
Category: B
Representation:
Counsel:
| Appellant | : | Ms S E Harrison |
| Respondent | : | Mr R M Mitchell SC & Ms G Bailey |
Solicitors:
| Appellant | : | King & Wood Mallesons |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in judgment(s):
Ausdrill Ltd v Hanekom [2009] WASC 307
Barbaro v The Queen; Zirilli v the Queen [2014] HCA 2; (2014) 305 ALR 323
Debri Pty Ltd T/as R&K Installations v Morrison [2012] WASC 364
Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435
Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194(S)
Morrison v Competitive Foods Ltd T/as Hungry Jacks (Unreported, WASC,
Library No 9118, 25 October 1991)
Morrison v Winton (Unreported, WASC, Library No 960698, 12 December
1996)
Murphy v Morrison (Unreported, WASC, Library No 960089, 15 February
1996)
Ogonowski v McCarron (Unreported, WASC, Library No 8119, 8 March 1990)
Palynolab Resources Pty Ltd v Morrison (Unreported, WASC, Library
No 960477, 22 August 1996)
R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181;
(2006) 14 VR 291
[2014] WASC 267 (S)
Reilly v Tobiassen [2008] WASC 92
Superfine Homes Pty Ltd v Shepherd (Unreported, WASC, Library No 990088,
2 March 1999)
[2014] WASC 267
McKECHNIE J
McKECHNIE J: The appellant was convicted of contravening the Mines Safety and Inspection Act 1994 (WA) s 9(1) in circumstances where s 9A(2) applied, exposing the appellant to a maximum penalty of $400,000.
2 On appeal I set aside so much of the conviction as was based on
s 9A(2) and found that the appellant had breached the employer's duties in s 9(1) and was exposed to a fine of a maximum penalty of $200,000 under s 9A(3).
On 28 July 2014 I made the following order:
The fine of $130,000 imposed by the Magistrates Court on the appellant on 19 March 2013 is set aside and in lieu thereof I impose a fine of $60,000.
I said that I would publish reasons for the imposition of the fine of $60,000. These are the reasons.
The objects of the Mines Safety and Inspection Act
(a) to promote, and secure the safety and health of persons engaged in mining operations; and (b) to assist employers and employees to identify and reduce hazards relating to mines, mining operations, work systems and plant at mines; and (c) to protect employees against the risks associated with mines, mining operations, work systems at mines, and plant and hazardous substances at mines by eliminating those risks, or imposing effective controls in order to minimize them; and
Any punishment imposed must promote these objects.
Principles and guidelines for sentencing
6 The Mines Safety and Inspection Act differentiates between the cases where death is caused by a breach of the general employer's duties under s 9 and cases where cause of death is not alleged or proven. It is wrong in principle to treat the absence of a cause of death as lessening an employer's liability under s 9(3). Section 9(3) imposes a significant maximum penalty in any circumstance where there has been a breach of the employer's duties under s 9.
7 The provisions of the Mines Safety and Inspection Act and the Occupational Safety and Health Act 1984 (WA) are closely aligned as to
[2014] WASC 267
McKECHNIE J
sentencing principles and guidelines, so I have drawn on cases under the Occupational Safety and Health Act in formulating a list of general principles and guidelines.[1] These are of general applicability and are not exhaustive:
[1] These principles are distilled from the Sentencing Act 1995 (WA), Ogonowski v McCarron (Unreported,
•
A sentence imposed on an offender must be commensurate with the seriousness of the offence.
•
The seriousness of an offence must be determined by taking into account:
- the statutory penalty for the offence; and - the circumstances of the commission of the offence, including the
vulnerability of any victim of the offence; and- any aggravating factors; and - any mitigating factors. •
Because of the infinite possibility as to the circumstances of a breach of duty there is no tariff for offences but an appropriate level of consistency with other fines should be maintained.
•
The legislation should have a deterrent effect requiring employers to take appropriate steps to provide a safe working environment.
•
The legislation is designed to bring home the consequences of failing to comply with necessary and prudent occupational health and safety requirements in the workplace.
•
Whether a fine should be imposed for principles of general deterrence.
• Whether there is a need for personal deterrence.
[2014] WASC 267
McKECHNIE J
•
Whether the offending employer has pleaded guilty and at what stage in the proceedings.
• The absence of a plea of guilty does not aggravate the offence. •
Whether the event demonstrates a course of conduct or whether it is a single event where safety instructions are overlooked.
•
Whether safety instructions were overlooked because of a failure to supervise over time.
•
The nature of the risk and the serious harm that might flow from a breach of the employer's duty.
• The severity of the lack of care or other criminal conduct. •
Whether there was a knowing acceptance of danger for commercial reasons or convenience.
•
Whether the employer has taken measures following the event to prevent a recurrence.
• The employer's general safety record. •
The employer's 'good character' sometimes demonstrated by its actions as a corporate citizen.
The range of sentences imposed in other cases
Because of the infinite variety of ways in which occupational health and safety laws can be breached, a tariff will always be elusive.
9 Even resort to a range of fines commonly imposed is unlikely to give
much guidance in setting an appropriate fine: Barbaro v The Queen;
Zirilli v the Queen [2014] HCA 2; (2014) 305 ALR 323 [25] - [28].10 In written submissions the appellant outlined a number of cases,
some taken from the Department of Mines and Petroleum website. Penalties range from 1% of the maximum to 40% of the maximum although each of these was an outlier. I do not find comparisons within the range of other fines to be very helpful. To the extent that the range provides some basis for sentencing I note that 30% of the maximum is within the range.
[2014] WASC 267
McKECHNIE J
The circumstances of the offence
The magistrate found:
312
In my judgment there was a failure to provide instruction and supervision to Mr McLaughlin.
…
317
I conclude that no instruction was given to Mr McLaughlin other than he should work on and repair the scissor lifts. His supervisors lack of knowledge about what Mr McLaughlin was doing was embarrassingly illustrated by Mr Price's evidence that Mr McLaughlin was fault finding by operating the lift.
318
Despite his evidence that he was regularly moving throughout the workshop, spoke to Mr McLaughlin and checked some of his Take 5's I conclude that Mr Price had nothing other than a generalised knowledge that Mr McLaughlin was working on the scissor lift.
319
In my judgment this discloses a fundamental lack of supervision for the following reasons:
•
The Accused's superintendent of engineering Mr Lynch and Acting superintendent of the Locomotive Overhaul workshop Mr Baad both stated:
- that Mr McLaughlin working on the scissor lifts
was non-standard or non-routine;- they saw the available manuals as inadequate and
that JHA's needed to be done.This didn't happen. No JHA's were done and either no, or very few
Take 5's were even completed by Mr McLaughlin.320 Mr McLaughlin fundamentally (albeit temporarily) altered the hydraulics of the northern scissor lift when he:
- by passed the operation of the onboard pump and used
external pumps;- installed the ball valve; and - changed valves There was no evidence that Mr Price or anybody else in a position of authority over Mr McLaughlin;
- was ever required to, or did, authorise or discuss any of
these changes; or
[2014] WASC 267
McKECHNIE J
- required any Take 5's or JHA's in respect of such changes; …
336 Mr McLaughlin was required on a daily basis to complete a Take 5 form listing the activity he was engaged in, the risks associated with it, and the controls for such risks. He completed few, if any such forms.
337 Mr McLaughlin should have completed JHA's for at least the major aspects of his works that involved the alterations of the hydraulics. This would have involved the supervisor with potential concerns being raised about the positioning of the ball valve within the descent path.
338 The absence of any documentary evidence otherwise allows the reasonable inference that Mr McLaughlin had not properly addressed the risks inherent with what he was doing nor controls that were appropriate.
… 340 In this matter the doing of Take 5's, JHA's and of appropriate supervision were all appropriate and intended steps that the Accused didn't and should have enforced. 341 It is with respect no good having a work environment 'geared towards safety' if the safety regime is not properly enforced. … 343 In my judgment the evidence establishes through Mr Lynch and Mr Baad that the Accused had reasonable and proper expectations of supervision and the doing of Take 5's and JHA's and it had the SAO program to assist with that. When there is not the proper level of supervision that is a failure by the Accused.
In setting the appropriate sentence, in addition to the facts as found by the magistrate, I also took into account the following.
13 I accept the submission of the respondent, because of the non-routine
nature of the work being performed on the scissor lift, the particular hazards were not regularly encountered in the workplace. The unusual nature of the activity was the very matter which gave rise to the important need to ensure those particular hazards were formally assessed and directed consideration as to how they were to be avoided.
14 The appellant had a well-documented and recognised procedure for
JHAs to be completed. The purpose of a JHA is to bring home to
[2014] WASC 267
McKECHNIE J
employees the hazards involved in the work and advise them of the
precautions which need to be taken to avoid injury or danger to health.15 However, the appellant's system was unsafe because there was no
sufficient enforcement of a regular requirement to carry out a JHA. This was compounded by the lack of proper supervision. Even though Mr McLaughlin was an experienced and capable employee, he seems to have been largely left on his own to both undertake the work on the scissor lift and to consider and avoid the hazards of his workplace.
16 Nor were the Take 5s properly enforced. A Take 5 is another
well-recognised safety procedure designed to ensure that the employee
would be constantly vigilant.17 The risk of death and injury in undertaking the work was such that
the appellant's breach of duty is considerable even though the fine is not
imposed for causing death.18 I do not characterise the employer's breach as a one off or single
event where safety instructions are overlooked. That is because the breach of duty was a continuing breach over a considerable period of time. The appellant had many opportunities to enforce its own safety procedures during that time but did not do so.
Setting a fine
The Sentencing Act s 53 provides:
Considerations when imposing a fine
(1)
Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account -
(a) the means of the offender; and (b)
the extent to which payment of the fine will burden the offender.
(2) A court may fine an offender even though it has been unable to find
out about the matters in subsection (1).(3)
A court must not fine an offender if satisfied that after paying compensation to the victim in accordance with a compensation order under Part 16, the offender will be unable to pay the fine within a reasonable time.
[2014] WASC 267
McKECHNIE J
The appellant, represented by counsel, did not urge in submissions any need for reduction of penalty through inability to pay a fine.
21 Subject to any adjustment which is necessary after applying s 53, it is
appropriate to set a penalty for a breach of general employer duties under the Mines Safety and Inspection Act and the Occupational Health and Safety Act by reference to a percentage of the maximum penalty, having regard to the circumstances of the offence and all aggravating and mitigating factors.
22 There is need for general deterrence; that is, a reminder to other
employers of the importance of maintaining a safe working environment and, in a hazardous industry, enforcing the requirements for JHAs, Take 5s and supervision of unusual tasks.
23 There is no evidence that the appellant engaged in the breach as a
knowing acceptance of the danger for commercial reasons or for
convenience.24 The appellant's safety record, together with the exemplary steps it
has taken since the event as outlined in the appellant's sentencing submissions to the magistrate, and repeated to me (also a separate matter of mitigation), indicates that it has well understood the consequences of its breach.
25 I also take into account the appellant's good character as
demonstrated by its behaviour as a good corporate citizen and other
matters in the appellant's submissions which are unnecessary to repeat.
Conclusion
I consider that the appropriate fine in all the circumstances should represent 30% of the maximum penalty, that is a fine of $60,000.
WASC, Library No 8119, 8 March 1990); Palynolab Resources Pty Ltd v Morrison (Unreported, WASC,
Library No 960477, 22 August 1996); Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435;
Morrison v Competitive Foods Ltd T/as Hungry Jacks (Unreported, WASC, Library No 9118, 25 October 1991);
Murphy v Morrison (Unreported, WASC, Library No 960089, 15 February 1996); Reilly v Tobiassen [2008]
WASC 92; Superfine Homes Pty Ltd v Shepherd (Unreported, WASC, Library No 990088, 2 March 1999);
Ausdrill Ltd v Hanekom [2009] WASC 307; Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194(S);
Morrison v Winton (Unreported, WASC, Library No 960698, 12 December 1996); Debri Pty Ltd T/as R&K
Installations v Morrison [2012] WASC 364; R v Commercial Industrial Construction Group Pty Ltd [2006]
VSCA 181; (2006) 14 VR 291.
0
10
1