Director of Public Prosecutions v Bradken Resources Pty Ltd

[2019] VCC 1053

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION Revised
Not Restricted
Suitable for Publication

GENERAL LIST

CR 18-00509
Indictment G11109548.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADKEN RESOURCES PTY LTD

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JUDGE:	HER HONOUR JUDGE CONDON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2019
DATE OF SENTENCE:	10 July 2019
CASE MAY BE CITED AS:	DPP v Bradken Resources Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VCC 1053

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:            Failing to provide and maintain safe plant or systems of work
Legislation Cited:     Occupational Health and Safety Act 2004 (Vic), ss21(1) and 21(2)(a)
Cases cited:             DPP v Frewstal Pty Ltd (2015) 47 VR 660; DPP v VibroPile Australia
  Pty Ltd (2016) 49 VR 676
Sentence:                  Convicted and fined $650,000.00

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Palmer SC Mr D Chisholm	Solicitor for the Office of Public Prosecutions
For the Accused	Mr R Taylor (Trial) Mr S Stafford	Herbert Smith Freehills

HER HONOUR:

1Bradken Resources Pty Ltd (“Bradken” or “Bradken Resources”), you have been found guilty of failing to provide and maintain a safe plant or systems of work, contrary to s21(1) and s21(2A) of the Occupational Health and Safety Act.  That finding was made by a jury after a 13-day trial held before me at Wangaratta. 

2Briefly, the facts of this matter are as follows.  At the time of the incident, being 22 July 2014, Bradken Resources operated a foundry located in Wodonga, Victoria.  It employed approximately 165 people, one of whom was the deceased, Mr Peter Watson, who had worked at the foundry since 2002.

3The task engaged in by Mr Watson involved the making of heavy metal components by a casting process.  The castings weighed between 200 and 270 kilograms and were using in mining, excavation and transport.  Moulds to make a casting were formed with sand and chemically bonded.  The moulds were placed into a furnace wherein molten metal was heated to about 15,080 degrees Celsius.  The metal was poured into each mould.  After about two hours, the casting was removed from the sand mould.

4In July 2014, the castings were moved using a Komatsu brand skid steer loader.  The skid steer loader had been used in this procedure since its purchase in June 2012.  Mr Watson had the job of removing the castings from the moulds and placing them in the cooling bin.  This was known as the 'knocking-out' process.  At this stage of the procedure, the castings were still extremely hot.

5Prior to 22 July 2014, there had not been any incident involving a casting falling back onto or through the windscreen of the skid steer.  However, the prosecution case was that Bradken knew or ought to have known from previous incidents that:  firstly, castings could roll-out or back towards the windscreen of the skid steer loader; secondly, objects could fall back from the bucket and impact on and break the windscreen of the cabin; and thirdly, the skid steer could become unstable when loaded.

6In aid of that assertion, the prosecution called expert evidence and relied upon a body of evidence which included the accounts of other Bradken employees at Wodonga and the material contained in what became known at the trial as 'the incident reports'. 

7Turning now to the incident of 22 July 2014 which led to the death of Mr Watson.  The jury heard that while there were no eyewitnesses to the actual event, evidence was led from a Bradken employee, Mr Colin Pumpa, who saw the skid steer loader on fire that was operated by Peter Watson.  He gave evidence of seeing Mr Watson seated in the cabin of the loader and the casting resting on him.  He told the jury that Mr Watson was not moving and saw that he was charred by the fire.

8By its verdict, the jury clearly found that there was a risk to the health and safety of Bradken employees operating the skid steer loader during the knocking-out process, from the weight, heat and proximity of the castings.  The jury also clearly found that it was reasonably practicable for Bradken to reduce those risks by providing plant (such as a rock excavator) that did not put the employees in such close proximity to the castings during the knocking-out process.

9Before turning to the relevant sentencing principles, I want to make clear that my role today is not to sentence Bradken Resources for causing the death of Peter Watson.

10Read to me by the prosecutor was a Victim Impact Statement from the widow of Mr Watson, Michelle Ajok Watson.  She eloquently expresses the impact of the tragedy of Mr Watson's death, and states that it is not an easy situation to lose a husband and father.  She also states that her and his sons miss him so much, day and night, all the time.  His untimely absence has clearly left a significant gap in their family unit, and she simply says: 'Without him, our family cannot be the same anymore'.

11Turning now to the sentencing principles which guide me.  The Court of Appeal decision in DPP v Frewstal Pty Ltd[1] provides helpful guidance as to the relevant sentencing principles in prosecutions under the Occupational Health and Safety Act 2004 (Vic). At paragraph 127, Their Honours said this:

'Firstly, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged.  An accused is punished according to the gravity of the breach of duty owed under [the Act], not according to the result or consequences of the breach.

Secondly, the gravity of the breach itself is measured by two factors:  the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.

Thirdly, an assessment of the extent of the risk itself involves consideration of two factors - the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others; and, the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).

Fourthly, the fact that the breach in the particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.'

[1] (2015) 47 VR 660

12The prosecution argued here that Bradken's offending must be regarded as very serious.  In support of that submission, the prosecution relied upon the following factors:

13Firstly, in prosecutions such as this, the objective seriousness of the breach constitutes the primary factor in determining the appropriate penalty; and factors that are subjective to the accused, such as the plea of guilty, absent here, should play a subsidiary role.

14Secondly, the gravity of the convention is not determined by its consequences, but by the extent of the employer's failure to meet its duty under the Act. 
The extent of the accused's failure to meet its duty under the Act is determined by three factors:  the extent of the departure from the duty owed, in particular, the measure of evidenced disregard concerning safety; the extent of the risk to health and safety thereby created, in particular, the foreseeable potential consequences of the breach; and the likelihood or risk of potential harm occurring.

15In relation to that first factor, Senior Counsel of behalf of the Director of Public Prosecutions submitted that the conduct of Bradken involved a very significant departure from acceptable safety standards. In support of that contention, he relied upon the philosophy which underpins the Act:  an employer is obliged to adopt an active, imaginative and flexible approach to potential dangers in the workplace.

16Furthermore, the prosecution relies upon the fact that Bradken were aware that prior to July 2014, there were risks associated with the use of the skid steer loader, including the risk of material breaking the windscreen.  The prosecution also relies upon Bradken's awareness of the availability and suitability of alternative plant for the same job; namely, the use of a rock excavator.

17Despite such knowledge, the prosecution argued before me, Bradken did nothing.  As a result, it is submitted that this constitutes a very significant departure from its duty.

18In reply, defence counsel submitted that there was no evidence before the jury that Bradken was aware of the specific risk which eventuated here, being the risk of burns leading to serious injury or death arising from the weight, heat and proximity of the casting to the operator.

19In arriving at my assessment as to the objective gravity of the breach here, I am bound by both the jury verdict and the case that was specifically presented against Bradken Resources as particularised on the Indictment.  Particular 5 specified as follows: 

'The weight, heat and proximity of the castings created a risk that the employees of Bradken who operated the loader during the knocking-out process could suffer burns leading to serious injury or death.'

20Now, while particulars do not constitute an element of the offence, in its consideration of the second element of this offence, the jury was specifically tasked to consider the prosecution claim that there was indeed a risk as alleged in particulars 5 and 8 on the Indictment.  Particular 8 was as follows:

'On 22 July 2014, the risks eventuated when a casting came out of the bucket of the loader during the knocking-our process, penetrated the glass door of the cabin and landed on Bradken Resources employee, Peter Watson, burning him to death.'

21In other words, the jury was specifically directed to turn their attention to particulars 5 and 8 in assessing the fundamental question as to whether or not they were satisfied beyond reasonable doubt of the second element of this offence.  True it is there was no evidence of the specific risk which transpired.  However, the jury were clearly satisfied that there was a risk as articulated in particular 5 and 8 that contemplated serious injury or death.

22In the circumstances, I accede to the prosecution submission that the conduct herein does involve a significant departure by Bradken from its duty owed to its employees.

23In relation to the second factor, the foreseeable potential consequences of Bradken's conduct included death, and this occurred.

24In respect of the third factor, senior counsel on behalf of the Director conceded that the likelihood of the incident occurring was not high; however, not so remote as to be unlikely.

25Given the prosecution concession that the likelihood of eventuation of the risk here was not high, I do take that into account in assessing the moral culpability of Bradken Resources. 

26However, I do not accept the defence submission that the risk here was on the outer limits of foreseeability.  The evidence of the Bradken employees at the Wodonga plant, and the incident reports to which I have already referred, support the contention that Bradken was indeed on notice prior to July 2014 as to various problems associated with the use of the skid steer loader for the knocking-out process.

27I do, however, accept the defence submission that the pleaded measure, being the use of the rock excavator, would have reduced the risk rather than eliminated it.  Again, I take that into account in assessing the objective gravity of the offending here and the extent of the departure by Bradken from its statutory duty.

28In cases where the potential risk of a breach includes the possibility that someone could be killed or seriously injured, general deterrence will normally assume considerable significance.  As the Court of Appeal acknowledged in DPP v VibroPile Australia Pty Ltd[2], general deterrence is of particular importance in offending of this kind.  The sentences imposed need to draw attention to the importance of workplace safety and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.

[2] (2016) 49 VR 676

29Defence counsel, on behalf of Bradken, accepted this statement from VibroPile as a guiding principle insofar as the significance of the sentencing principle of general deterrence is concerned in cases of this kind.

30Furthermore, Bradken admitted before me 11 prior convictions.  Each prior conviction is for a safety-related offence.  According to the prosecution submission, the number of priors suggests that Bradken has struggled to comply with its Occupational Health and Safety obligations and that previous sanctions have had limited deterrent effect.  Consequently, senior counsel on behalf of the Director submitted that significant weight should be given in this case to specific deterrence.

31In his reply, counsel on behalf of Bradken submitted that its antecedents need to be viewed in the context of the size of its operations and consequent exposure to risk.  For the sentencing exercise today, I accept that submission.

32I am also mindful of Bradken's conduct since the commission of the offence.  Following the incident, Bradken expedited plans to introduce a hard sand loop shaker process.  This plant was not introduced as a result of the incident, and went far beyond what was required of Bradken in an improvement notice and the measure as particularised in particular 6 of the indictment.

33I note in this vein that the skid steer loader has not been used for the knockout task since the incident in 2014.  I also note that given that this plant was not introduced as a result of the incident, evidence of this conduct was excluded by me in the trial.

34As was properly conceded by defence counsel for Bradken, the consequences of the breach in this case were nothing less than catastrophic.  As I have already stated, in imposing my sentence in this case, I am bound to deliver a sentence that is entirely consistent with the jury verdict here.

35In my view, that incorporates the following findings of fact.  The risk here was foreseeable, and not on the outer limits of foreseeability, as suggested. 
While the likelihood of the risk eventuating was not high, it could not be properly classified as unlikely.  I accept that when Bradken was aware of the particular risk in relation to the use of the skid steer loader, it took remedial action.

36Would you please stand, Mr Ward, on behalf of Bradken? 

37I convict Bradken Resources of the offence of failing to provide and maintain a safe plant, and Bradken Resources is fined $650,000. 

38Yes, you may be seated, Mr Ward.  Now, Mr Stafford, I note the capacity to pay was not raised as an issue.

39MR STAFFORD:  No, Your Honour. 

40HER HONOUR:  However, what stay do you seek?

41MR STAFFORD:  A three-month stay.

42HER HONOUR:  I will give you six months if you like.

43MR STAFFORD:  As Your Honour pleases.  Six months.

44HER HONOUR:  Yes?

45MR STAFFORD:  Yes. 

46HER HONOUR:  All right.  Are there any other orders that are required? 
That is it?

47MR STAFFORD:  No, Your Honour. 

48HER HONOUR:  All right.  Yes, very well.  Thank you. 

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