Director of Public Prosecutions v Melbourne Water Corporation

[2014] VCC 184

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-13-01816

DIRECTOR OF PUBLIC PROSECUTIONS

V

MELBOURNE WATER CORPORATION

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2014
DATE OF SENTENCE:	27 February 2014
CASE MAY BE CITED AS:	DPP v Melbourne Water Corporation
MEDIUM NEUTRAL CITATION:	[2014] VCC 184

REASONS FOR JUDGMENT
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Subject:  CRIMINAL LAW

Catchwords: Sentence – breach by a corporation of s21(1) and s21(2)(c) of the Occupational Health and Safety Act 2004 – death of worker falling through a displaced grate upon a walkway – previous instances of grate being displaced.

Legislation Cited:     Occupational Health and Safety Act 2004; Sentencing Act 1991

Cases Cited:Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; Director of Public Prosecutions v Nationwide Towing & Transport Pty Ltd [2011] VSCA 291; Director of Public Prosecutions v Coates Hire Operations Pty Ltd [2012] VSCA 131

Sentence:                 Conviction and fine of $400,000

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Tovey QC	Solicitor for the Office of Public Prosecutions
For the Accused	Ms A Fox	Allens Linklaters

HIS HONOUR:

1 Melbourne Water Corporation has pleaded guilty to one charge of failing to keep its workplace safe and without risks to health pursuant to s.21 of the Occupational Health and Safety Act 2004. The maximum penalty for a breach of the section is 9000 penalty units or $1,099,260.

Circumstances of offending

2       The circumstances surrounding the death of Mr Tim Bakerov and the circumstances of the offending by Melbourne Water are set forth in the Summary of Prosecution Opening which I adopt.

3       It should be said at the outset that whatever findings I make and whatever penalty I impose, little of what was said in the course of the plea hearing and of what I have to say today will give much solace or comfort to Mrs Bakerov and her daughters, given the tragic circumstances of the death of their husband and father.  He was clearly, from the material which I have read, in particular the Victim Impact Statement of Mrs Bakerov, a much loved and revered family member, friend to many and a respected work colleague by all at Melbourne Water and Ecowise Australia Pty Ltd.  Many will live with the great sadness of his passing at too young an age.  I should also say I accept from Ms Fox, counsel for Melbourne Water, that all from that organisation, both management and workers, were shocked by and deeply regret his death in the course of his work duties on 1 December 2011.

4       Melbourne Water is a very large organisation, responsible for the removal and treatment of almost all of Melbourne’s sewerage and for the management, protection and control of Melbourne’s water systems.

5       Mr Bakerov worked at Melbourne Water’s sewerage treatment plant at Bangholme.  In fact he was employed by a company, Ecowise Australia Pty Ltd, and carried out biological analysis work at the plant.  For the purposes of the Act he is regarded as an employee of Melbourne Water.

6       At the plant there were various concrete walkways constructed over Return Activated Sludge Channels which I will call 'the channels'.  On part of one walkway a number of steel slatted grates were embedded in grooves in the walkway and used to gain access to the channel beneath.

7       On other walkways other steel grates made of checker plate were used.  I was informed that the checker plate grates were usually secured to the walkways by bolts or other fixation devices.  It would also appear that on occasions the slatted grates had checker plates applied to the upper portion.

8       As early as August 2008 there was a report that both slatted and checker plate grates had become dislodged.  An incident report at the time said:

“Excess foaming in the RAS channel has caused several metal covers to dislodge.  It is possible to step from the stairs and fall into the RAS channel.  This, should it occur, would result in very serious injury and possible fatality due to drowning.”

9       As a result new checker plate grates were bolted to the concrete.  Further, on a number of occasions in 2010, grates again become dislodged or were unsecured.  On one occasion this was caused by aerated foam from the channels flowing up to and through the grates.  These were the subject of specific reports.  In December 2011 an employee of a contractor working at the plant said that some 12 months earlier two grates had become dislodged, one of them a slatted grate in the same area where the incident involving Mr Bakerov occurred.  On that same earlier day about 200 metres away the same employee observed another slatted grate missing from its position.  The employee may have been referring to the same incidents reported in 2010.

10      It is unclear on precisely how many occasions from 2008 there were reports of grates of various types either missing or displaced from the grooves in the walkways.  I accept that while not a regular occurrence it occurred on a sufficient number of occasions that it ought to have prompted those responsible for occupational health and safety to take steps to ensure slatted grates were properly secured.  As events subsequently showed it was a simple and inexpensive task to secure them to the concrete.

11      In the early hours of 1 December 2011 Mr Bakerov went about his duties of obtaining samples from tanks and channels and returning them to the laboratory.  It was noticed that he had not returned and investigations showed a slatted grate was missing from a walkway.  Each grate is approximately 800 millimetres square and weighs approximately 12.5 kilograms.  Mr Bakerov’s body was subsequently recovered from the channel.  Also in the channel was a slatted grate.  Two other grates were found in channels some distance away.

12      Various investigations were conducted as to what had occurred and while not conclusive it would appear Mr Bakerov either slipped and fell into the hole created by the missing grate or possibly was attempting to return a misplaced grate to its proper position when its weight or the course of the aerated foam in the channel pulled him into it.

13      Whatever the precise circumstances surrounding the incident it is acknowledged by Melbourne Water that there was a causal link between the missing, misplaced or unsecured grate and his fall and death.

14      Subsequently an improvement notice was issued by a WorkSafe inspector requiring the grate to be secured and this, as with other grates at the plant, was attended to promptly.

15      I accept that around the time of the incident Melbourne Water had an extensive health and safety management system at the plant.  This had been the subject of internal and external audit.  I accept there was an inspection and monitoring system along the walkway in the area.  It is indeed disappointing, even tragic, that given such a system, those in occupational health and safety roles had not seen fit to secure the grates, given the previous instances of them having been found missing or misplaced.

16      I was informed by Ms Fox that officers of Melbourne Water were of the view that the slatted grates were secure in their grooves under their own weight, given any rise in foam from the channel would pass through the slats.  This view stands in stark contrast to the earlier incidents where the plates had been missing or displaced.

Impact of the offending

17      I have already referred to the Victim Impact Statement of Mrs Bakerov.  It is a comprehensive and clear statement of the tragic affect upon her and her daughters of the loss of Mr Bakerov.  I accept without reservation the deep grief and loss she and her family feel.  It is likely this will continue for the rest of their lives.

Sentencing considerations

18      I accept Melbourne Water pleaded guilty to the charge at the earliest opportunity.  I accept further that it was co-operative in all respects with the authorities and with subsequent investigations.

19      I note Melbourne Water has no prior convictions for this or any similar offending and has not come to the notice of the relevant authorities since.  I accept that within a short space of time it took steps to secure all grates at the plant, were rendered safe, and in addition undertook an extensive safety audit.  It directed a range of further training, maintenance and inspection procedures focussed upon safety.  It published the circumstances of the incident, and the steps it had taken, to other water authorities.  I note many persons in senior management at the corporation were present in court, reflecting the seriousness with which the death of Mr Bakerov, and this prosecution, were taken.

20      I accept the plea of Ms Fox that specific deterrence has only a modest role to play as a sentencing consideration, given the safety procedures in place prior to the incident and the extensive steps taken subsequently.

21      The authorities have referred to the importance of general deterrence as a sentencing consideration.  In the modern work environment there is a clear duty upon employers to take proactive steps to ensure that those who work within their premises are provided with safe premises and a safe system of work.

22      There are two aspects of the failures of Melbourne Water relating to the death of Mr Bakerov that are of particular significance.  The first is that there were a number of incidents going back three years where there were clear reports of missing or displaced grates on the walkways.  It is true that not all related to slatted grates, but even those related to checker plate grates ought to have brought to the mind of those in charge of health and safety that notwithstanding the different construction of the grates there was the real prospect that the slatted grates would become dislodged, thereby creating a significant hazard.  Despite the evidence of reports of these prior occasions no steps were taken to investigate the risk of slatted grates becoming dislodged and no consequent steps taken to secure them.  In my view this was a clear and substantial failure, in particular in a workplace where there were considerable hazards and occupational health and safety matters were said to be important.

23      The second significant issue in my view is that the potential consequence of the failure to take adequate steps to properly secure the grates was dire.  A missing or displaced grate in this plant with hazards such as water courses and channels would likely result, to anyone who gave the matter a moment’s thought, in the death of a worker by drowning, if he stood upon an uncovered hole or attempted to lift the heavy grate back into place.  Tragically in this case that indeed occurred.

24      As was said in Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd:[1]

“When determining the appropriate penalty in a case of the breach of a statutory duty imposed for the purpose of protecting the lives and well being of those who may be affected by the breach, the foreseeable potential consequences must be taken into account as it is the avoidance of those consequences which, when considering the objective seriousness of the offence, constitutes the raison d’être for the establishment of the legislated regime in the first place.  To a substantial extent the seriousness of a breach must be assessed by reference to those potential consequences and the measure of evidenced disregard concerning the safety of employees in the circumstances.”

[1][2005] VSCA 219

25      Ms Fox submitted that in assessing the seriousness of the breach in the present case it ought be regarded in the lower to middle category.

26      I was taken to a number of authorities where the Court of Appeal has imposed fines following breaches of the Occupational Health and Safety Act 2004 leading to the death of a worker.

27      In Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd,[2] a worker lost his life when he was dragged into very large rollers on a paper manufacturing machine.  There was no guard over the rollers, he was provided with no safety instruction as to the operation of the machine, and there was no safety manual nor safety procedure evident.  There had been two earlier risk assessments which documented entanglement of the rollers as a hazard, and one prior incident of a related nature.  The company had two prior offences although their significance was regarded as minor.  The court imposed fines of $180,000 in respect of each of the two offences.  The maximum penalty at the time was $250,000 per offence.

[2]Supra

28      In Director of Public Prosecutions v Nationwide Towing & Transport Pty Ltd,[3] the court considered the death of a worker as a result of a large excavator coming off a trailer.  The trailer was inappropriate to carry the machinery as it was too narrow and had the wrong surface.  There had been a prior similar incident as a result of which the company had undertaken to use appropriate trailers with rubber matting.  Those steps were not taken.  In addition there was no risk assessment and no instructional material nor adequate training provided to the worker.  The court approved an aggregate penalty of $450,000 in respect of two charges imposed by the sentencing judge.  The maximum penalty at the time was $966,000.

[3][2011] VSCA 291

29      In Director of Public Prosecutions v Coates Hire Operations Pty Ltd,[4] the court heard a Director’s appeal where a worker was killed while loading an elevated work platform onto a truck.  The loading, according to a specific written safety procedure, was meant to have been undertaken by a winch cable.  The worker involved, an employee of a contracting company, was not made aware of the safety procedure, was given no induction as to its operation and was not aware that the work was meant to have been carried out by winch.  The Court of Appeal set aside a fine of $250,000 imposed by the sentencing judge and substituted a fine of $500,000.  The maximum penalty at the time was $966,000.

[4][2012] VSCA 131

30      It is impossible to map both serious and mitigating factors in respect of sentences in these cases and compare them with those in the current matter.  Each case must be determined by its own facts and circumstances.  Nonetheless, the cases provide a general guide as to the level of fines to be imposed.  I accept that the present case does not have some features of those other cases, including the failure to provide guards where the risk was obvious as in the Amcor Case, the use of inappropriate equipment in circumstances where there had been a similar prior incident, such as in the Nationwide Case, and the complete failure to instruct an employee on an established safety procedure as in Coates Hire.

31      Nonetheless, by reason of the matters to which I have earlier referred, in particular the earlier reports over three years of missing or displaced grates and further, of the clear risk of death to a worker should he fall into a channel through a hole left by a dislodged grate, I regard the offending as serious and as far as is one able to categorise such seriousness I would not regard it in the lower range, nor in the highest range.  I would regard it as something in at least the middle range.

Sentence to be imposed

32      Having regard to all of the matters to which I have referred I impose the following sentence:

33      On the charge of failing to maintain a workplace that is safe and without risks to health, Melbourne Water Corporation is convicted and ordered to pay a fine of $400,000.

34 Pursuant to s.6AAA of the Sentencing Act 1991 I state that but for the plea of guilty I would have imposed a fine of $500,000.

35      HIS HONOUR:  Yes.  Anything further?

36      MS LOUGHNAN:  No Your Honour.

37      MR DEWBERRY:  Thank you Your Honour.

38      HIS HONOUR:  A stay of payment?  Is there a need for a stay of payment?

39      MR DEWBERRY:  No.

40      HIS HONOUR:  Thank you. 

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