Director of Public Prosecutions v CLM Infrastructure Pty Ltd
[2017] VCC 192
•3 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01660
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLM INFRASTRUCTURE PTY LTD (ACN 131 091 971) |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 & 10 February 2017 | |
DATE OF SENTENCE: | 3 March 2017 | |
CASE MAY BE CITED AS: | DPP v CLM Infrastructure Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 192 | |
REASONS FOR SENTENCE
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Subject: Sentence
Catchwords: Occupational Health and Safety
Legislation Cited: Occupational Health and Safety Act 2004; Sentencing Act 1991
Cases Cited: Dotmar Epp Pty Ltd v R [2015] VSCA 241; DPP v Frewstal Pty Ltd [2015]
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Wraight QC Ms F. Todd | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr G. Livermore Ms C. Currie | Sparke Helmore |
HIS HONOUR:
1 On 18 October 2016 CLM Infrastructure Pty Ltd came before me for trial as the corporate defendant to indictment E13636867.1 containing two charges being; Fail to Maintain Systems of Work (Charge 1) and Fail to Provide Information, Instruction or Training (Charge 2). After some days of argument concerning the validity of the charges, a fresh indictment was filed over on 24 October 2016, being indictment E13636867.2 containing like charges, but in an amended form. Further argument followed concerning the admissibility of expert opinion evidence and on 2 November the proceeding was adjourned to 6 February 2017 for trial.
2 On 6 February 2017, a further indictment E13636867.3 was filed over and CLM Infrastructure Pty Ltd pleaded guilty to one charge of fail to provide information or instruction contrary to s.21(1) and s.21(2)(e) of the Occupational Health and Safety Act 2004. The maximum penalty for this offence in respect of a defendant who is a body corporate is 9,000 penalty units.
3 The plea was adjourned to 10 February and on that day, tendered as Exhibit A on the plea and read aloud in court, was a Statement of Agreed Facts. In summary, in September 2013, preparatory construction works were undertaken at a building site at 270 Maribyrnong Road, Ascot Vale. On 10 September 2013, employees of the defendant company attended at the building site to drill under Maribyrnong Road to facilitate connection of a new water main to the site. The employees had obtained all necessary certificates and approvals, including “Dial Before You Dig” certificates, to ensure that the drilling path was safe, especially from obstructions such as telecommunications or electrical cabling, and approvals from Yarra Trams to undertake works adjacent to a tramway electrical apparatus.
4 The drilling process involved the use of a bed borer, the digging of a pit for the bed borer and the lowering of the boring machine, which was connected to a truck by a crane, into the pit at the height that the hole was to be drilled. During the drilling process, rods were manually added to the spindle and the head was driven forward in order to bore a hole. Two levers controlled the movement of the rods. One lever moved the rods forward. The other lever directed the rotation of the rods clockwise and anti-clockwise. The usual procedure was for the machine operator to stop the rod spindle from spinning so that another rod could be added. The operator would then slowly rotate the rod so that the male and female threads connected. There was a “break-out” tool attached to the machine that held the rear of the rod being used whilst the other was then joined to it. The bed borer was held in place by the size of the trench encasing it and by chocks and stakes to prevent the machine from moving backwards or forward whilst under torque. The rods were added and removed and added again as the hole was drilled and reamed to its desired location.
5 To remove rods, the “break-out” tool which was situated at the front of the machine, was pushed across to hold the rods whilst the machine was placed in reverse so that the rod could be detached. If, for any reason, such as wear and tear or excessive mud build up, the tool did not hold the rod to perform the “break-out”, Stilsons were used to “break” the rods. The “break-out” was always undertaken whilst the bed borer was in the pit, chocked and staked. The bed borer cannot be moved from the pit whilst more than two rods were attached to it, so the “break-out” had to be conducted in the pit.
6 By 11 September 2013, the CLM employees had succeeded in drilling through to the end location. However, they experienced difficulties in retracting the bore head. The following day, 12 September, whilst cleaning out the drilled hole by adding and removing rods at a point near lunchtime, the “break-out” tool was not able to hold and break one of the rods. A CLM employee, Shannon Ginn, telephoned his drilling supervisor, Mr Brian Little, who instructed Ginn to use Stilsons instead of the “break-out” tool in order to remove the drill rods. Sometime after lunch, Mr Ginn and his co-worker, Glen Gorsuch, were in the hole and had successfully finished drilling and had safely removed all but the last join in the drill rods of the bed borer machine whilst it was in the pit. Having been unable to break the last join, they decided to try to break the join while the bed borer machine was outside the pit, unstaked and unchocked, with a Stilson wedged against the ground. They used a Stilson to hold the rod while the rod was being reversed in order to undo it. When Mr Ginn turned on the machine, it pivoted from where it was held by the crane in the direction of Mr Gorsuch. The borer struck Mr Gorsuch and caused him to fall. Mr Gorsuch suffered serious head injuries by reason of falling against the back of the truck and striking his head prior to falling into the trench. Mr Ginn was knocked off balance, but suffered no injury. Mr Gorsuch subsequently died from the head injuries he suffered.
7 Messrs Ginn and Gorsuch had been trained to operate the bed borer by Mr Little. No allegation is made of any deficiency in the training provided by the defendant company.
8 The defendant company’s system of work was to always do the rod break-out process in the pit when the machine was staked and chocked. The process adopted by Messrs Ginn and Gorsuch was contrary to this system of work. There is no evidence of conduct of this kind having previously occurred. No allegation is made of any deficiency in the defendant company’s system of work.
9 The defendant company’s breach arises out of the fact that neither the Safe Work Method Statement nor the Operating Manual for the bed borer relevant to the performance of boring work at the site addressed specific safety measures or risks associated with the use of Stilsons on the bed borer to perform the break-out process when the machine was out of the trench.
10 Tendered as Exhibit C on the plea and read in Court by Mrs Gorsuch was her Victim Impact Statement. The statement is a moving document setting out eloquently the consequences to her family as a result of this industrial accident. It is an example of the consequences of any industrial accident upon the family of a fatally-injured worker.
11 The defendant company’s predecessor, CLM Excavations Pty Ltd, was established in 1981. Neither entity has been convicted of an offence under this or like legislation since their operations commenced in what can properly be described as a high-risk industry.
12 The defendant company’s plea should be regarded as an early one, given the history of this prosecution and the form taken by earlier charges in the Magistrates’ Court, and in the charges contained on previous indictments and the way in which the prosecution had put its case against the company prior to 6 February this year.
13 The Crown submitted that the risk of the breach eventuating was low but that the defendant company by its plea acknowledged that its breach may have given rise to the risk of death or serious injury. Further, the Crown submitted that information or instruction including written warnings should have been included in the materials associated with the operation of the bed borer and the drilling process to all of the dangers associated with the practice that was engaged in by Messrs Ginn and Gorsuch. The Crown also submitted that the potential consequences of the breach were serious as was evidenced by the injuries suffered by Mr Gorsuch. However, given the facts in this case, it was submitted that the evidence does not disclose a serious disregard for the safety of employees, and that it was accepted that the company’s breach was at the outer limits of foreseeability.
14 In Dotmar Epp Pty Ltd v R [2015] VSCA 241, Priest JA, delivering the judgment of the Court, opined at paragraphs [22] and [23] of the judgment that:
“ … The Occupational Health and Safety Act is concerned generally with risks to health and safety; and, under Part 3, concerned specifically with the duties owed with respect to health and safety. It is the extent of the failure to ensure that employees are not exposed to risk to their health and safety which determines the objective gravity of the offence. The consequences of the failure generally do not. That is not to say that the fact of death or injury occurring is necessarily irrelevant. The occurrence of an accident resulting in death or injury of a particular kind may inform an assessment of first, the existence of the risk, and, secondly, the nature and seriousness of that risk.6
Hence, in determining the gravity or seriousness of the offence, the sentencing court must assess, first, the extent of the departure from the duty owed; secondly, the extent of the risk to health and safety thereby created; and, thirdly, the likelihood or risk of particular harm resulting. Put another way, in a case such as the present, the gravity or seriousness of a breach is to be measured by reference to the potential consequences of the breach; the extent of the evidenced disregard for the safety of employees; and the risk of the potential consequences of the breach materialising.”
15 In DPP v Frewstal Pty Ltd [2015] VSCA 266 at [127], Priest and Kaye JJA opined:
“In our opinion, sentencing judges should be guided by the following principles:
• First, 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 OHSA, not according to the result or consequences of the breach.
• Secondly, the gravity of the breach 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 a 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.”
16 The offence to which the defendant company has pleaded guilty does not involve an element of reasonable practicability and is to be regarded as an offence of strict liability.
17 The defendant company has no prior convictions. It entered its plea of guilty at an early stage. Insofar as it could, it cooperated with investigating officials and never used the bed borer machine again.
18 As to the seriousness of the offending, I find:
(1)The breach related to the defendant’s written documents only;
(2)The deficiency in those documents relates to activity that had never occurred before and activity that was outside the parameters of the training, supervision and instruction that Messrs Ginn and Gorsuch had received;
(3)Messrs Ginn and Gorsuch’s conduct was at the outer level of foreseeability by the defendant company;
(4)There is no evidence of the defendant company disregarding the safety of its workers;
(5)Accordingly, the seriousness of the breach is at the lower end of the scale of these matters;
(6)Whilst there was a risk of death or serious injury as a result of the conduct engaged in by Messrs Ginn and Gorsuch, the likelihood of the risk eventuating in all the circumstances was low;
(7)There is an absence of any aggravating feature in the conduct of the defendant company, and
(8)In short, the seriousness of the consequences of the breach was high, although the breach was at the lower end of the scale.
19 General deterrence is an important sentencing factor in cases involving breaches of the Occupational Health and Safety Act 2004. However, specific deterrence has little or no part to play in the circumstances of this case.
20 Each party provided me with what was submitted to be a list of comparable cases. Every sentencing exercise is unique. Comparable cases, whilst of some importance, have many limitations.
21 Taking into account the matters to which I have referred, without conviction, I fine the defendant company $50,000.
22 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for its plea of guilty, I would have sentenced the defendant company to a fine of $75,000 with conviction.
23 Are there any other matters that need to be attended to?
24 COUNSEL: No, Your Honour.
25 HIS HONOUR: I would like to thanks Mrs Gorsuch for her attendance here today. I would like to thank counsel for their assistance in this matter. I will stand down now until 10.30 for the next matter.
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