Director of Public Prosecutions v Australian Rong Hua Fu Pty Ltd

[2022] VCC 2220

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00700

DIRECTOR OF PUBLIC PROSECUTIONS

v

AUSTRALIAN RONG HUA FU PTY LTD (ACN: 131 023 115)

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2022
DATE OF SENTENCE:	14 December 2022
CASE MAY BE CITED AS:	DPP v Australian Rong Hua Fu Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VCC 2220

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Failure to maintain a safe working environment

Legislation Cited:      Occupational Health and Safety Act 2004 (Vic).

Cases Cited:Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241; DPP v ACE Metal Treatment Services Pty Ltd [2021] VCC 1420; DPP v Andrew Buchanan Engineering [2021] VCC 2162; DPP v SJ& TA Structural Pty Ltd [2019] VCC 2016; DPP v Fergusson and Jacbe Builders Pty Ltd [2017] VCC 1276; DPP v Bilic Homes Pty Ltd [2016] VCC 810

Sentence:                  Fines totalling $475,000, with conviction

Section 6AAA: Fines totalling $750,000

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Chisholm	Office of Public Prosecutions
For the Accused	Mr S. Cash	MSE Legal

HER HONOUR:

1The accused company has pleaded guilty to three breaches of sections 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 (Vic). On 30 April 2020 an employee of the company, Guihong (Emily) Liang was killed when a stone slab fell on her as she was assisting with unloading a shipping container.

2The company operates a business importing and selling stone slabs. Much of the stone sold is imported from China.  The company was created 14 years ago, in 2008. Its initial directors were Ms Liang’s parents and brother.  Ms Liang was a director from 2012 to 2015.  In 2015 her sister and brother-in-law Mr Bas, took over as directors of the company.

3Ms Liang remained with the business, as did her husband.  At the time of the offences she was the office Manager, and her husband Mr Oliver Chow, was the Operations Manager.  The company had two sites, one in Dingley where Ms Liang was based, and one in Coolaroo where Mr Bas was based.  Other employees at the Dingley site were a full time receptionist, a truck driver, Mr Tai and a warehouse worker, Mr Dorrens. 

4Shipping containers with stone slabs were regularly delivered to the Dingley site.  These were deposited outside the door to the warehouse, where the ground had a slight slope, downhill from the wall of the warehouse.  Generally wooden blocks were placed on the lower side, so that the containers would be level.  If the containers were delivered out of hours, which was not uncommon, the container was not always placed on these blocks.

5The stone slabs were stacked in the containers either in a V formation or an inverted V.  When in route they were braced into position by wooden forms.  Each stone slab weighed approximately 230 to 250 kilograms. The usual process for unpacking was that the wooden braces would be removed, and then with one worker separating the slabs, and another driving the forklift, the slabs would be removed 2 or 3 at a time and moved into the warehouse.  The forklift was fitted with a boom and a clamp which was used to grip the slabs from the top horizontal edge.  Once the clamp had hold of the slabs the boom would be raised and then the forklift backed out.  The slabs would be carried into the warehouse, held by the clamp, and guided by the worker on foot.  Inside the warehouse they would be placed on A frames, for storage.

6On 30 April 2020 Mr Tai and Mr Dorrens were directed by Ms Liang to unpack a container which had been delivered out of hours. On this occasion the slabs were stacked in a V formation.  Mr Tai noticed that the container was not level and when the door of it was opened he noticed that the slabs on the left were too upright.  This was due to both the angle at which they had been packed, and the tilt of the container down to the right.  Nevertheless Mr Dorrens removed the bracing between the two sides of the V of slabs, and they unloaded around 20 slabs for delivery that morning.

7After Mr Tai and Mr Dorrens had left to deliver the slabs, Ms Liang and her husband commenced unloading the rest of the slabs from this container.  Mr Chow was driving the forklift and Ms Liang working in the container to separate the slabs.  She did so in the usual method, by using a screwdriver blade to separate the slabs, and then putting a wedge in to create space for the clamp to grasp the slabs. She did so from the far end of the container, away from the entrance and the forklift.  Both Mr Chow and Ms Liang were experienced in unpacking stone slabs from shipping containers. 

8Ms Liang separate three slabs from the stack on the left side of the container and put the wedge in, hitting it to keep it in place.  The slabs began to topple to the right and Ms Liang was crushed and killed, having suffered a fatal head injury.

9The events causing Ms Liang’s death demonstrated the unsafe work practices related to the unloading of the containers.  As particularised by the prosecution:

(a)   The slabs were stacked at an insufficient angle – 3.2 degrees on the left and 2.5 degrees on the right  They should have been stacked at between 4 to 8 degrees;

(b)   The work practice was unsafe as workers and other people were not excluded from the fall-shadow of the slabs;  and

(c)   No restraint or device was used to prevent the slabs from falling, or to limit their fall.

Charge 2

10Examination of the forklift and its attachments revealed further failures to provide and maintain a safe working environment.  These were:

(a)   The forklift was too light to lift the slabs and a box of granite tiles had been placed behind the driver’s seat to increase the lift capacity of the forklift;

(b)   The boom attachment was not properly fitted, in that it was not pushed all the way onto the tines of the forklift and the safety pin was therefore not in place;

(c)   The rated weight for lifting when the boom was in its fully extended position, as it was at this time, was only 500 kg, so that lifting 3 slabs exceeded that capacity; and

(d)   The lock tab on the clamp had been replaced by rubber bands.

Charge 3

11Furthermore, the inspection of the company’s warehouse showed that the feet of the A frames on which the slabs were stored in the warehouse had been extended by the placing of wooden supports, to extend the storage capacity of the frames. The following photo shows an empty storage frame, and others in the warehouse where the wooden supports are under additional slabs.

12These wooden supports were not affixed either to the A Frame or the floor, and so were held in place by the weight of the slabs and friction on the floor, only.  Thus, they were insufficiently secured so that they and the slabs could shift inadvertently.

13As the photo shows, in some places there is a relatively narrow path between two stacks of slabs, and in others there is a clear open space near the stacked slabs.

14In addition, no load charts were attached to the A frames so that the load capacity was not indicated, with a risk of overloading.

Explanations

15Charge 1 – Defence counsel noted that there had not been any previous incidents where the slabs were noticeably unstable in the unloading process, and so the company was not on notice of the issue, and so no action was taken to guard against this risk.  The WorkSafe inspector was told that having come from China the company directors were unaware of the local standards.

16Charge 2 – it was noted by defence counsel that no instability in the forklift had previously been noted, and the bag of granite tiles had been placed on the forklift not because of any noticed instability, but simply to increase the lifting capacity of the forklift.  It was accepted that replacing the lock tab on the clamp with rubber bands was “not ideal” but also that it worked and it was not clear to the company that the safety mechanism had been compromised.  A statement in the depositions indicates that the tab had broken and been replaced by the rubber bands nearly a year before this incident.[1]

[1]Depositions 38

17It was explained that the usual boom component on the forklift had been lent to another company.  Thus, an older shorter boom was used and placed halfway on the tines so that it could reach far enough into the container.

18Charge 3 – It was submitted, although accepting that the racks could be overloaded and the wooden supports could move, the company had not noticed any instability and so had not taken any measures.  As to the absence of load charts on the frames, it was explained that the frames had come from China, and the company was not aware of the requirement of having load charts attached.

19Counsel accepted that these were explanations, not excuses.

Rectifications & Company Response

20The company officers, who are family members of Ms Liang, and the employees of the company were traumatised and grief stricken by her death.  When WorkSafe inspected the site two weeks after the incident the company had put in place a written procedure for a number of areas of operation, including and beyond the matters which are the subject of the charges.  These procedures included:

(i)Any person assisting the forklift to handle the stone must ensure they are never in the fall shadow of the slab and that they are wearing appropriate PPE;

(ii)Changed packing arrangements in the shipping containers, so the slabs would arrive on an A frame, rather in the V formation;

(iii)Improved practices regarding the storage of the slabs on the A-frames; and

(iv)Directions about use of the forklift, including ensuring that the boom and clamp were fitted and working correctly.

21The forklift was later replaced with a device capable of bearing a heavier load, and the storage A frames had been replaced or were being replaced.

22The steps taken by the company since Ms Liang’s death have been appropriate.  Some have involved purchasing new equipment, better fitted to the work, others have simply been creating safe procedures for the various tasks.

23None of the steps taken to ameliorate the risks were prohibitively expensive.  Some of the safety procedures which are now applied could have been found and obtained for no cost, from the WorkSafe website.

Gravity of Offending

24The Occupational Health and Safety Act 2004 seeks to promote the health, safety and welfare of employees and other people when at work. It places a duty on employers to provide and maintain safe working environments for employees, making it an offence not to do so, punishable by a fine up to 9000 penalty units. At the time of these offences the maximum quantum of a fine for a breach of s21(1) was $1,486,980.00.

25It is, of course, not possible to eliminate all risk.  What is required of employers is that they do that which is reasonably practicable to eliminate or mitigate risk.  In determining what is reasonably practicable regard is had to the likelihood of harm occurring, the degree of harm that might result, whether the employer knows or should have known of the risk of harm and ways of eliminating that risk, the availability of ways to eliminate the risk of harm and the cost of doing so.

26The prosecutor urged me to follow the approach described by Priest JA[2] to assess the gravity of this offending, and I will do so.  It directs me to consider:

(i)first, the extent of the departure from the duty owed, in particular the evidenced disregard for safety;

(ii)secondly, the extent of the risk to health and safety thereby created, or put another way, the foreseeable potential consequences of the breach; and,

(iii)thirdly, the likelihood or risk of particular harm resulting, that is “risk of the potential consequences of the breach materialising”.

[2]Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241 at [23]

Charge 1

27The position of both the prosecution and defence was that the gravity of the offending in respect to Charge 1 is in the upper range of seriousness. 

28The extent of the disregard for safety was high.  Any attention paid to the issue must have led to the conclusion that the manner in which the slabs were packed, the location of the container, and the absence of restraints or equipment to halt a fall presented a very real risk of falling slabs, and hence death or serious injury.  It is important to note that Ms Liang’s death tragically demonstrated the failings of her employer, but this is not an element of the offence.

29In the depositions Mr Chow indicated that he was aware of the risk of falling slabs and that he had told people working with the slabs, including Ms Liang, not to try stop a falling slab.  Mr Tai had been instructed not to go into the fall shadow of the slabs, as there was a risk they could fall.  He was told not to enter the container, but sometimes had to do so, in order to get the clamp properly placed or fixed.  Another worker at the company, who had previous experience in this work, said he was given not training or safety instructions when he started with this company. 

30Whilst no previous incidents had occurred, the risks of slabs falling was sufficiently well known in the industry that a document setting out the issues and safe procedures was available on the WorkSafe website.  This document specifically addressed unloading stone slabs from containers.[3]  It commences with the following:

What is the problem?

[3]Depositions 272

Workers have been trapped and crushed while unloading slabs from shipping containers.  The problem is often due to one or more slabs “toppling” (ie falling from vertical), often as a consequence of a slab moving more than expected or in an unintended way.  For example, a slab might tilt to a greater angle than anticipated.

What are the risks?

There have been a number of serious crushing incidents where toppling slabs have trapped a person against the floor or wall of a shipping container or other structure or between slabs.

These have resulted in fatalities, amputations and musculoskeletal injuries affecting the trunk, back, shoulders and arms.

31Defence counsel submitted that there had not been any previous occasions when the slabs were noticeably unstable when unloading and that if there had been such instances this would have increased the company’s culpability and the gravity of the breach.  It was submitted that in the absence of previous issues, it simply had not occurred to the company to take measures to prevent instability.  The company was aware of the issue of the slope, and it had occurred before that containers were placed without the supporting blocks, to level them.

32It was clearly foreseeable that if a slab were to fall in the container or when being moved from it, that persons nearby were very much at risk of death or serious injury. Employees of the company were aware of the risk that the slabs would fall.  The weight of the slabs was known to be 230-250 kilograms, and they were moved in sets of 2 or 3, so that the minimum weight of a falling large object would be 460 kilograms. 

33Given the weight and size of the slabs there was little or no chance of stopping a fall, once it had started, and in the container the ability to get out of the way was severely limited.

34The risk of death or serious injury being caused by a falling slab was not remote or insignificant.  That Ms Liang was killed on 30 April 2020 shows that the risk could eventuate, with the most grave consequence.  That the risk had not crystalised previously does not mean the risk was low, only that by good fortune slabs had not fallen before.

35The company’s explanation for the breach of duty in respect to this charge, and the other two charges, is a common one, but in no way mitigating.  In the face of an obvious risk taking no action because the risk had not eventuated is no excuse.  Employers are expected to be proactive in identifying and responding to risks to health and safety.  I accept, however, that the culpability of the company is not as great as it would have been if there had been previous fall incidents.

Charge 2

36The prosecutor submitted that this was also a significant breach, although not as grave as Charge 1.  Defence counsel submitted that this was a mid-range instance of this offence.

37The disregard for safety under this charge was high, although not as high as Charge 1. Whilst there were load charts on both the forklift and the boom attachment, there was no load chart addressing the capacity of the combined plant. 

38More importantly, the placement of the boom attachment half-way down the tines was clearly inappropriate, as were the use of a bag of tiles to give more weight to the forklift and the use of rubber bands on the clamp.  In each of those three instances the rough and ready approach shows a significant disregard for safe procedures.

39There was a clearly foreseeable risk of death or serious injury. If any of these of these make-shift practices were to fail then slabs would fall, or the forklift could become unstable.  Each would place employees and those around at risk of death or serious injury.

40The likelihood of such harm occurring was not insignificant, in particular in light of the improperly used and maintained plant.

41I accept that the gravity of this charge is less than Charge 1.  Whilst the failings to ensure the plant was used and assembled properly were obvious and showed a real disregard for safety, the likelihood of an incident happening which caused death or serious injury was less than Charge 1.

Charge 3

42The photo shows that the frames were overloaded significantly and unevenly.  The extent of the disregard for safety in respect to this charge was lower than Charge 1 and 2, but nevertheless real.  The extension of the feet of the frames was clearly not ideal, but the risk of falling or sliding slabs was much less than in respect to Charge 1.  The overloading of the frames, and the unsecured extended footing present an obvious risk of failure of either the frames or the wooden footing. 

43Furthermore whilst the foreseeable consequences of this breach encompass death and serious injury, the likelihood of such harm occurring was less than in respect to Charge 1. Although there is a narrow passage between some of the stacks, there was more room to move out of the way of a falling slab than in the container.

44Thus I consider the gravity of this charge to be less than both Charges 1 and 2.

Matters Raised on the Plea

45The company indicated that it would plead guilty to the charges at the earliest opportunity.  I was told that no negotiations were entered into, and that the company wished to acknowledge responsibility as soon as it could.  The entry of the plea gives rise to a significant discount in sentence, due to the utilitarian benefits which follow and which are greater in the light of the impact of the pandemic on the court lists.

46I accept also that the officers of the company are deeply remorseful for the company breaches, particularly in respect to Charge 1, where the breach of duty led to the death of Ms Liang.  As I have noted Ms Liang was a former director and was the sister and sister-in-law of the directors at the time. 

47I also take into account that the company took immediate steps to address the various failings raised by WorkSafe.  Whilst some of these rectifications involved expense, for example the purchase of the new forklift and associated equipment, others only required the implementation of safety rules and procedures.  As I have noted, some of the information about the safe procedures was readily and freely available on the internet, on the WorkSafe website.  The swift rectification means that specific deterrence carries little weight in the sentencing exercise. 

48It was also submitted that the company is a good corporate citizen.  It has no prior or subsequent prosecutions, it has a good reputation in its business, as noted by the reference from Simple Benchtops, and it contributes to a local sporting organisation.

49I also have regard to the letter from Mr Chow, Ms Liang’s husband.  He was operating the forklift when she died.  Whilst no victim impact statement was filed, I have no doubt that the incident must have been deeply traumatic for him.  He now raises the couple’s two children, with the support of his sister-in-law and her husband Mr Bas.  He has moved his home to be closer to that family, so that the children can be together and they can support each other through this tragic event.  He says that Ms Liang and Mr Bas have supported him in his efforts to prioritise the welfare and happiness of his children.

Other Sentencing Considerations

50Both parties accepted that general deterrence plays a significant role in sentencing for offences of this type.  The fines imposed must send a message to employers that failure to take proper care to eliminate or mitigate risks to safety will lead to significant penalties.  Regrettably the attitude taken by the company to safety, in this case, is not uncommon.  It is a terrible thing that it requires an incident as serious as this, with the attendant tragedy for all concerned, to wake an employer up to their duty.  

51Cases of this type are regularly in the news, and it is to be hoped that the facts of this case, and the penalties I impose may cause other employers to take steps to ensure the safety of their employees.

52I am required to take into account current sentencing practice.  I was referred to 5 different cases said to be broadly comparable in gravity and circumstances.[4]  No case involved similar facts to this, but each involved an employer failing to take steps to remove or mitigate a clear risk to the safety of workers and others.

[4]DPP v Ace Metal Treatment Services Pty Ltd [2021] VCC 1420; DPP v Andrew Buchanan Engineering [2021] VCC 2162; DPP v SJ& TA Structural Pty Ltd [2019] VCC 2016; DPP v Fergusson and Jacbe Builders Pty Ltd [2017] VCC 1276; DPP v Bilic Homes Pty Ltd [2016] VCC 810

53The cases that seem to me to be most comparable in gravity to Charge 1 are SJ&TA Holdings, and ACE Metal Treatment.  Each involved an unsafe process or practice which had been in existence for some time, without incident.  Each case involved a single charge only, unlike this case.

54Defence counsel provided information about the profit earned by the company for each year since 2017.  Between 2018 and 2021 the average yearly profit was approximately $360,000.  The profit for 2022 was considerably higher, due to the sale of a significant asset. 

55Defence counsel also submitted that I could and should impose an aggregate fine across all three charges, and that if individual fines were imposed I should have regard to the principle of totality when considering the result of the combined fines.  The prosecutor submitted that it would be preferrable to impose individual fines.  In view of the different failings addressed by each charge, and the different gravity of each, I will impose individual fines. I will moderate the fines imposed on Charges 2 and 3, to a degree, to ensure that the total amount of the penalty does not exceed the combined culpability of the company.

Orders

56The sentences are:

(i)Charge 1 – Fine with conviction of $300,000

(ii)Charge 2 – Fine with conviction of $100,000

(iii)Charge 3 – Fine with conviction of $75,000

57Thus the total fines payable by the company amount to $475,000.

58Pursuant to s6AAA of the Sentencing Act 1991, I state that if the company had not pleaded guilty I would have imposed fines totalling $750,000