Director of Public Prosecutions v Hungry Jacks, Visy and Veolia
[2018] VCC 1454
•7 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS | CR-15-01372 |
| CR-15-01373 CR-15-01374 | |
| v | |
| HUNGRY JACKS PTY LTD (ACN 008 747 073) VISY PAPER PTY LTD (ACN 005 803 234) VEOLIA ENVIRONMENTAL SERVICES (AUST) PTY LTD (ACN 051 316 584) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6-20 August 2018 (trial), 28 August 2018 (plea) | |
DATE OF SENTENCE: | 7 September 2018 | |
CASE MAY BE CITED AS: | DPP v Hungry Jacks, Visy & Veolia | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1454 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Gurvich QC Ms A French | OPP |
| For the Accused Hungry Jacks For the Accused Visy For the Accused Veolia | Mr S Russell Dr D Neal SC Mr R Taylor | HWL Ebsworth Lawyers Herbert Smith Freehills Norton Rose Fulbright |
HIS HONOUR:
Introduction
Hungry Jacks Pty Ltd (Hungry Jacks), Visy Paper Pty Ltd (Visy) and Veolia Environmental Services (Aust) Pty Ltd (Veolia), have each been found guilty of one charge of failing to ensure persons other than employees were not exposed to risks to their health and safety contrary to s 23(1) of the Occupational Health and Safety Act 2004 (OHSA).
The maximum penalty for an offence pursuant to section 23(1) committed by a body corporate is 9000 penalty units. At the time of the offence, the maximum penalty equated to $1,267,560.
Each company has admitted their prior criminal record.
Circumstances of the offence
Hungry Jacks operates a fast food restaurant at 737 Plenty Road, Mill Park. At the relevant time, the restaurant opened at 5 am and closed at 11 pm. The drive-through area of the restaurant operated 24 hours a day, seven days a week.
Within the Hungry Jacks car park there is a small loading bay situated between the store entrance and the drive-through area. The loading bay is approximately 10 metres long and 2 to 3 metres wide. At the end of the loading bay is a storage area behind metal gates. The recyclable waste bin was stored behind those gates together with a bin for general rubbish.
On rubbish collection days, the manager and an employee from Hungry Jacks would unlock the gates at sunrise and wheel the bin to the end of the loading bay area where it meets the driveway. When the bin was emptied, the driveway was blocked by the collection truck. At the point where the loading bay and the driveway intersect, the driveway was used for vehicles to enter the drive-through service area. There was no designated footpath in that area.
Hungry Jacks contracted with Veolia to undertake the task of emptying the waste and recycle bins. Veolia’s undertaking was the provision of waste and recycle bins and the service for their collection pursuant to the agreement. Under the terms of the agreement Veolia was granted the exclusive right to supply all services to the site. The agreement allowed for general waste services and general cardboard services to be supplied to the Hungry Jacks Mill Park site.
Veolia contracted with Visy to collect the recyclable cardboard from the Hungry Jacks site. As such, the undertaking of Visy was the collection of the contents of the recycling bin.
Wayne Daley was a truck driver employed by a labour supply agency since May 2012. Mr Daley worked from the Visy recycling depot in Richmond collecting recyclable cardboard from bins at various locations around Melbourne including the Hungry Jacks Mill Park restaurant.
On 8 March 2013, Mr Daley was driving a Volvo double axle front lift truck. The truck had the Visy logo on the side. The truck that Mr Daley was driving has hydraulically operated arms at the front that are inserted into the sides of industrial waste bins. The bins are lifted over the front and top of the truck and the contents are emptied into the rear compartment of the truck. Once emptied, the arms are lowered back over the front of the truck, and the bin is placed back into position. The controls for the arms are located in the truck and operated by the driver from a normal seated position within the cabin.
Prior to 8 March 2013, Mr Daley had attended the Mill Park Hungry Jacks store approximately 70 to 80 times to empty the recyclable waste bin. He would attend the store between 12 and 12:30 PM. Mr Daley gave evidence in the trial and stated that emptying the bin at the Mill Park Hungry Jacks site was a difficult process because there were people walking around with cars coming in and out.[1]
[1] Transcript of Proceedings (21 September 2017) 24-25.
On 8 March 2013, Mr Daley arrived at the Mill Park Hungry Jacks store at approximately 12:00 pm. He followed his usual procedures. When he drove forward to pick up the bin he did head checks and mirror checks. He raised the bin and shook it twice to empty the contents. He did all possible checks before putting the bin back down. He then proceeded to lower the bin to the ground.
At the time Mr Daley was at the Hungry Jacks site empting the bin, Rex and Moira Haysom were standing at the front passenger side of the truck just as the bin had been raised to be emptied. After the bin had been emptied and was being lowered over the front of the truck, Mr and Mrs Haysom proceeded to walk past the front of the truck. As the bin came down it struck Mr and Mrs Haysom, pushing them both to the ground.
The entire incident was captured on CCTV footage from three different angles.
Mr Haysom was taken to the Royal Melbourne Hospital for treatment and passed away at 8.25pm on 8 March 2013 as a result of the injuries he had sustained. Mrs Haysom was also injured and transported to hospital for treatment.
Findings of fact
In sentencing the three companies on this indictment, I am bound by the principles set out in the case of Cheung v The Queen[2]. As such, I must interpret the facts in a way that is consistent with the jury’s verdict. Further, any findings of fact that I make must be arrived at beyond reasonable doubt.
[2](2001) 209 CLR 1 at [14].
In relation to each company, particular 4 of the charge alleged that there were two reasonably practicable measures that if introduced, would have reduced the risks as identified in particulars 1 and 3 of the charge. The jury were directed that they only need to be satisfied beyond reasonable doubt of one of those particulars or they may be satisfied as to both.
The prosecution put their case on the basis that the location of the bin and the timing of the pickup were the matters that needed to be addressed in order to reduce the risk of interaction between trucks and pedestrians at the car park at the time the bin is emptied. The two particulars of paragraph 4 reflect those propositions.
In the circumstances in my view, based on the evidence at trial, I am satisfied beyond reasonable doubt that each company should be sentenced on the basis that both of the measures contained in particular 4 of the indictment were reasonably practicable in the circumstances.
Objective seriousness of the offence
In cases where death or serious injury has resulted from a relevant breach of the OHSA, the Court of Appeal in DPP v Frewstal Pty Ltd[3] summarised the guiding principles in sentencing such matters as follows:
·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 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.
[3] (2015) 47 VR 660 at [127] per Priest and Kaye JJA.
In Dotmar Epp Pty Ltd v The Queen[4], Priest JA succinctly expressed the general approach in cases where death or serious injury may result, or has resulted from the breach:
The OHSA 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.
[4] [2015] VSCA 241 at [22].
Each company accepted that the risk of death or serious injury would result from being struck by the bin in these circumstances however, they each submit that in the specific circumstances that gave rise to the accident on 8 March 2013, the degree of departure from their respective statutory duties was minimal.
Particular 1 on the indictment describes the failure to eliminate the risk of interaction between trucks and pedestrians in the car park at Hungry Jacks at the time of waste collection. The prosecution submitted at the plea that the risks arising from pedestrians interacting with vehicles in the car park are ever present and obvious. While that is accepted, the three companies commonly submit that the specific risk - that is the risk described in particular 3 of ‘being struck by the recycle bin while it was lifted up or placed on the ground by the collection truck in the vicinity of the loading bay while the bin was being emptied’ - was an unlikely event and therefore at the outer limits of foreseeability. The three companies draw in support of that submission the following:
·that there was no evidence that this type of accident had ever occurred before;
·that no driver had conveyed to the respective defendant companies that there were any obvious safety issues with the site;
·that the bins had been collected from this location hundreds of times without incident;
·that there was no evidence that any pedestrians had been put at risk at any time prior to the accident; and
·that the likelihood of the occurrence of the risk was low.
By its verdict, the jury have accepted that the identified risk was foreseeable by a reasonable employer in the position of each of the accused companies at a time prior to the accident and further, have accepted that it was reasonably practicable to implement the identified measure (or measures). Further, in relation to Hungry Jacks, the jury rejected the proposition that the engagement of external contractors by Hungry Jacks to empty the bins at its Mill Park site was sufficient to discharge its statutory duty.
Mr Gurvich who appeared with Ms French on behalf of the Director of Public Prosecutions, addressed the Frewstal principles as they relate to this incident. As noted, he highlighted the fact that the risks arising out of pedestrians interacting with vehicles in a car park are ever present and obvious. He submitted that it was accepted by the prosecution that each of the defendant companies relied on the expertise of the truck drivers with respect to looking out for pedestrians. That said, he submitted that each of the defendant companies failed to have regard to the risks associated with the positioning of a large truck in a confined car park area at a time when pedestrian traffic was at its peak, in circumstances where the recycling bin was in a location accessible to pedestrians.
Mr Gurvich also submitted that the prosecution accepted that the likelihood of the occurrence of the event involving Mr and Mrs Haysom was low. However, as evidenced by the accident, there was the potential for both death and serious injury to occur.
In my view, the likelihood of the specific circumstances that manifested in this instance involving persons other than employees walking directly under the bin as it was being lowered, is low. Nevertheless, the question does not depend on whether the precise accident was foreseeable, rather the accident provides evidence that informs whether the risk was reasonably foreseeable.[5] In all the circumstances, in relation to the specific accident here, in my opinion, while the risk was reasonably foreseeable it was at the outer limits of foreseeability.
[5]DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [56].
Victim impact statements
Two victim impact statements were tendered on the plea. The first was from Karen Cowley the daughter of Rex Haysom. Ms Cowley read her victim impact statement at the plea. She speaks of the admiration she had for her father and the profound effect the accident has had on her and her family as a result of Mr Haysom’s death and the injuries sustained by Mrs Haysom.
The second victim impact statement was from Wayne Daley, the driver of the truck involved in the accident. Since the accident his life has had a dramatic change. He has suffered severe depression and has been unable to work. He speaks about the negative affect his reaction has had on his relationships with his wife and family. He notes that he has been hospitalised on several occasions as a result of being at risk of suicide. He continues to have nightmares about the accident.
While it is acknowledged that the offence is risk based not outcome based, pursuant to s 5(2)(d) of the Sentencing Act 1991 a sentencing court is required to take into account any injury, loss or damage resulting directly from the offence. As was noted in DPP v Vibro-Pile (Aust) Pty Ltd[6] in relation to OHSA offences:
The sentencing court is obliged to consider the impact of the offending on victims, that is, on persons who suffer loss and damage as a direct result of the offending. For these purposes, it makes no difference whether the duty breached is a duty owed to employees (ss 21 and 22) or to others (s 23).
[6] Ibid at [195].
I wish to direct some comments to the family of Mr and Mrs Haysom. The sentence I must impose can in no way be a measure of the worth of Mr Haysom’s life. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.
I also wish to acknowledge the dignity and respect the family has given to the necessary criminal process which in this instance, has taken considerable time to come to a conclusion.
Background and circumstances of the defendant companies
Written submissions were tendered on the plea on behalf of the three defendant companies. The respective submissions provide background history concerning the defendant companies including details as to each company’s safety systems that existed at the time and since the incident. I will not summarise those submissions in detail however I have taken the contents of those submissions into account.
Hungry Jacks Pty Ltd
Hungry Jacks has been in operation since 1971. In 1971 Hungry Jacks became a franchisee of Burger King Corporation opening its first restaurant in Western Australia. It employs 15,979 people in 354 company owned stores and 72 franchisee stores throughout Australia. Since 1996, Hungary Jacks Australia has been the largest franchisee of the Burger King Corporation outside of the USA.
Mr Russell who appeared with Mr Stafford on behalf of Hungary Jacks submitted, in addition to the matters already noted above, that following the accident Hungary Jacks cooperated at every stage of the investigation undertaken by WorkSafe. Specifically, the changes that were required by the Improvement Notice issued following the accident were implemented and incorporated in Hungry Jacks standard operating procedures. The changes included the introduction of a speed hump to prevent the bins moving further out on the loading bay and arranging for the bins to be collected at a time shortly before or after the restaurants opening hours. That is, the measures as outlined in particular 4.
While accepting the jury’s verdict, Mr Russell submitted that Hungry Jacks is not an expert in collection of waste and recycling and that the engagement of reputable operators provides evidence that Hungry Jacks took appropriate steps to meet its statutory duties. As such it was submitted that this can be taken into account in assessing the extent of the departure.
37.While I accept that submission has merit, ultimately, these were the very matters the jury were asked to consider. Clearly by its verdict, the jury did not accept the position taken by Hungry Jacks that it had discharged its statutory duties by engaging expert contractors and were in a position to do more to ensure the safety of persons other than employees at their site. Further, the evidence called on behalf of Visy from Robert Gajdek - the Visy Victorian fleet manager at the time with vast experience in logistics - stated that Visy can only make recommendations and that it is the customer that needs to maintain safety on their own site.[7]
Visy Paper Pty Ltd
[7] Transcript of Proceedings (15 August 2018) 653.
The Visy Group consists of five operating divisions - Visy Paper Mills, Visy Recycling, Visy Board, Visy Packaging and Visy Logistics. Visy Paper Pty Ltd has responsibility for Visy recycling and paper mills in Victoria and some other states.
The Visy Group has a corporate health, safety and environment function with an oversight of the safety systems and performance of its operating divisions. The Visy health safety and environment system includes auditing and accreditation, risk assessment and consultation. Relevantly, in relation to this case, drivers working for Visy Recycling are required to complete driver induction courses. Contracted drivers are required to complete the same courses every 12 months. Mr Daley was an experienced driver who had completed training with Visy.
In the written submissions prepared on behalf of Visy and tendered on the plea, it is noted that Visy had been performing bin lifts since the early 2000s without prior incident. Dr Neal who appeared with Ms Grinberg on behalf of Visy, submitted that Visy services approximately 912 recycling customers on a daily basis. Dr Neal reiterated that no driver had reported back to Visy that there was any issues with this particular site.
In terms of the character of the accused company, the submissions filed on behalf of Visy provide detail as to the company’s contribution to environmental sustainability. Visy Recycling has a national education program to provide schools with tours of its facilities to assist in their understanding of the importance and processes of recycling. The Visy group contributes funds to Pratt Philanthropies which have funded over 10,000 philanthropic projects.
Veolia Environmental Services (Australia) Pty Ltd
Mr Taylor who appeared with Ms Coates on behalf of Veolia, submitted that while Veolia accepted the verdict of the jury, it should be noted that the accident in this case was at the remote end of foreseeability and not emblematic of Veolia’s safety record.
Mr Taylor outlined a brief history of the company noting that it provides waste services to 65,000 domestic and commercial clients within Australia. The company employs 33,500 people and controls some 37 water treatment plants.
Mr Taylor summarised Veolia’s commitment to community projects which since 2005 has contributed $10 million to over 1000 community projects. Veolia is also a member of some 29 industry associations.
Since the accident occurred, Veolia completed an updated site risk assessment of the Hungry Jacks site. Veolia took over the collection of the recycle bin using the one truck to service both recycling and general waste bins in order to minimise truck movements and the collection was scheduled for pick up prior to 6 am. Further, the company has engaged in investigations into new sensor technologies that may be installed on the lifting arm of the trucks. It was submitted that Veolia cooperated with the investigation and accepted the requirements which resulted from the improvement notice issued to Hungry Jacks.
In summary, Mr Taylor submitted that the incident itself was unique and given the absence of any example of a similar event, this was not an obvious risk and therefore he submitted, the offending is at the lower end of the range.
Sentencing considerations
In cases involving breaches of the OHSA, general deterrence is the predominant sentencing consideration. As noted in DPP v Vibro-Pile (Aust) Pty Ltd:
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 risks will attract significant punishment.[8]
[8]DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [233].
Each of the defendant companies admitted their prior criminal records. However having heard submissions in relation to the prior matters in each instance, they are matters which are unrelated to the current offending and in each case the prior matters date back many years. Further, each of the defendant companies are large national companies and as such, in my view the prior offending must be viewed in the context of the size of the company, the number of employees and its general exposure to risk as a result. All three companies have established health and safety systems and although the risk in this instance was foreseeable, it is not an example of a serious disregard to the safety of persons other than employees. Thus, in my opinion, specific deterrence while relevant, carries less weight in the sentencing discretion in this case.
Submissions were made on behalf of Hungary Jacks that their role in the offence should be viewed as below that of the other defendant companies. The prosecution submitted on the plea, and to the jury at trial, that the responsibility was a shared one and that there is insufficient evidence to distinguish between the three companies in terms of role. Counsel for Visy and Veolia did not make any submissions as to hierarchy. In my view responsibility in this instance was a shared responsibility and, as noted above, I am satisfied beyond reasonable doubt that each of the two particulars have been made out in relation to each accused company. As such, in all the circumstances I find no reason to impose different sentences as between the three defendant companies.
Each of the defendant companies are large corporations with established health and safety divisions. Having taken into account the written and oral submissions on behalf of each company I accept that they each are otherwise good corporate citizens. That said, the legislation requires employers to provide employees, other persons at work and members of the public the highest level of protection against risks to their health and safety and as such, should to take a proactive approach.[9]
[9] OHSA s 4
Finally, the prosecution and the defendant companies provided the court with comparable cases. While only limited assistance can be derived from comparing other cases,[10] where possible to make comparisons, I have taken these cases into account.
[10]DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [222].
Sentence
Would the representatives of each company please stand.
Hungry Jacks Pty Ltd, Visy Paper Pty Ltd and Veolia Environmental Services (Aust) Pty Ltd, on the charge of failing to ensure persons other than employees were not exposed to risks to their health and safety, will each be convicted and fined $275,000.
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