Director of Public Prosecutions v BPL Melbourne Pty Ltd

[2016] VCC 282

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01803

DIRECTOR OF PUBLIC PROSECUTIONS

v

BPL MELBOURNE PTY LTD

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 February 2016
DATE OF SENTENCE:	15 March 2016
CASE MAY BE CITED AS:	DPP v BPL Melbourne Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 282

REASONS FOR SENTENCE
---

Subject:  Workplace Accident
Catchwords: Occupation Health and Safety Act 2004 (Vic)
Sentence: Fine $40,000.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T Wraight QC with Mr J Gullaci	Office of Public Prosecutions
For the Accused	Mr D.J. Neal SC with Mr A.S. Pillai

HIS HONOUR:

1BPL Melbourne Pty Ltd (“the company”) has pleaded guilty to a charge that as an employer within the provisions of the Occupational Health and Safety Act 2004 (Vic) (“the Act”) it failed, so far as was reasonably practicable, to provide for its employees a working environment that was safe and without risks to health contrary to ss21(1) and (2)(a) of the Act. The charge in the indictment focuses on the company’s failure to provide and maintain safe systems of work.

2The maximum penalty for this offence is a fine of 9000 penalty units which approximates to almost $1.1M.

3The company has no prior convictions.

4The circumstances of the company’s offending are summarised in a prosecution opening that was tendered to the court and marked as Exhibit A on the plea.  The summary was read in open court by the prosecutor
Mr Wraight QC who appeared with Mr Gullaci.  The prosecution summary was accepted as being accurate and as forming a proper basis upon which I can proceed to pass sentence by Mr D. Neal SC who appeared with Mr Pillai on behalf of the company.

5It is not necessary that I again set out that which is already summarised in the prosecution opening except to refer to it in a very summary way.

6On 2 February 2012 the company operated a plant at Laverton for the purpose of the manufacture of pet food.  Part of the operation involved the extraction of tallow and this generated flows of hot tallow through pipes which from time to time became blocked requiring employees of the company going through procedures to isolate and relieve the blockage.  One such blockage occurred on 2 February 2012.  In the process of relieving the blockage, an employee, Thao Phan, was injured.  This incident highlighted the fact that the company had failed to provide and maintain safe systems of work.

7Mr Phan was injured because a ladder which he was using was not secured.  The ladder slipped along a pipe which had been opened up when a blocked valve which had caused the blockage had been removed for clearing purposes.  When the ladder slipped it contacted and moved a lever that had been turned to close off an adjoining valve.  That valve had not been locked in the “off” position as it should have been and it was not tagged.  The movement of the ladder against the lever caused the adjoining valve to open and hot tallow was released on to Mr Phan through the opened pipe.  Mr Phan suffered burns to his body.  He was forced to jump from the ladder to escape the flow of hot tallow.  After some time off work Mr Phan has recovered and returned to work.  He is lucky not to have suffered even more serious injury and the machine operator who was assisting him nearby, Mr Hai Nguyen, is lucky not to have been injured at all, he having also been exposed to injury as a consequence of what occurred.

8It is acknowledged by both parties that while Mr Phan, who was employed by the company as a production supervisor, had been trained in what are called “tag and lock out procedures”, however, the training that Mr Phan did have in such procedures failed to provide him with the necessary understanding that tag and lock out procedures needed to be applied when attempting to clear a manual valve on the tallow line.

9A task instruction manual intended to set out in writing how such a task is to be undertaken was found on investigation to be only to a draft standard and was incomplete.  The manual was satisfactorily completed by the company after this offence. 

10The company accepts that it breached the relevant provisions of the Act by failing to ensure that training in tag and lock out procedures that Mr Phan had received were monitored and enforced by having an adequate task instruction manual such that Mr Phan understood that tag and lock out procedures applied to the valve in question.

11The ladder was in position above ground before the offence.  It was not secured when it should have been.  Soon after the offence the company rectified any problem caused by the insecure ladder by erecting a permanent above floor work platform with fixed steps negating the need for the use of a ladder. 

12Mr Phan had also received training in ladder safety. However, the company accepts that so far as Mr Phan’s use of the ladder was concerned, it failed to monitor and enforce relevant ladder safety procedures and because of this it breached the relevant provisions of the Act.

13Whilst this is a serious offence, this is not the most serious example of this kind of offending.  The sentence imposed must however reflect appropriate application of the principle of general deterrence and appropriate denunciation of this kind of offending.  Mr Phan and the company must consider themselves lucky that Mr Phan was not more seriously injured and it is indeed fortunate that Mr Nguyen was not also injured.

14In passing sentence I must assess the level of culpability of the company. I have heard evidence as to the extent of training that Mr Phan and other employees have had in work safety, in particular the training and experience that Mr Phan had received from the company in tag and lock out procedures and ladder safety. I accept that the company appears to have taken a responsible attitude and approach to such matters. I accept that this case can be distinguished from those where employees have been injured in circumstances where the employer has simply ignored or turned a blind eye to workplace safety and an employer’s obligations under the Act.

15However, what this case highlights is that a corollary of employers training its employees in safety is that employers must monitor and enforce that which is taught.  In this case the company failed at two levels.  It failed to monitor and enforce the ladder safety procedures that it had trained its employees in.  Also, it failed to monitor and enforce the tag and lock out procedures to ensure that all employees properly understood that those procedures applied to the tallow line.  In my opinion, these failures were important here.  Were the company more vigilant, this offending would not have occurred.  Whilst I accept this is not the most serious example of this kind of offending, I do not accept the submission that the company’s culpability should be regarded as low level.  It is not.  Simply put, the company did not do enough.  It was not unreasonable, or impractical, for it to have properly monitored and enforced the safety procedures that it acknowledges were operating here.

16That said, I accept that the company did have a commitment to workplace safety.  This is reflected in the fact that it has no prior convictions.  The sentence that I impose does not need to be influenced by application of the principle of specific deterrence.

17The company has pleaded guilty to the charge and, whilst it did not do so at the earliest possible opportunity, there having been a contested committal hearing,  it is nonetheless entitled to a reduction in sentence.  The plea of guilty has saved the time and costs of a trial.  I also treat the plea of guilty as evidence of remorse.

18Whilst the company continues to operate, it no longer operates the plant and business where this offending occurred.

19Mr Neal submitted that I should impose a fine without conviction.  I do not accept that submission.  In my judgment the circumstances of the offending of the company require registering of a conviction.

20On the charge of failing, so far as was reasonably practicable, to provide for its employees a working environment that was safe and without risks to health contrary to s.21(1) and (2)(a) of the Act the company is convicted and fined the sum of $40,000.

21Had it not been for the fact the company pleaded guilty to the charge I would have imposed a fine of $80,000.

22Any matters arising out of that, gentlemen?

23COUNSEL:  No, Your Honour.

---