Director of Public Prosecutions v Midfield Meat International Pty Ltd
[2021] VCC 2034
•14 December 2021
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00335
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MIDFIELD MEAT INTERNATIONAL PTY LTD |
---
JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4–8, 11–15, 18–20 October, 17 November 2021 | |
DATE OF SENTENCE: | 14 December 2021 | |
CASE MAY BE CITED AS: | DPP v Midfield Meat International Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2034 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence after trial; Failure to provide and maintain a safe system of work; Field officer employee working alone in enclosed cattle yard suffered fatal crush injuries; Whether provision of ‘two person rule’ would have eliminated or reduced risk; Significant departure from employer’s statutory duty; Previous convictions; General and specific deterrence.
Legislation Cited: Occupational Health & Safety Act 2004 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Cheung v The Queen [2001] 209 CLR 1; R v Isaacs (1997) 41 NSWLR 374; Director of Public Prosecutions vVibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; DPP v Frewstal Pty Ltd [2015] VSCA 266; DPP v Resource Recovery Victoria Pty Ltd [2015] VCC 472; DPP v VicRoads and DPP v Downer EDI Works Pty Ltd [2017] VCC 2021
Sentence: Fine of $400,000 with conviction
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Tittensor SC with Mr D. Chisolm | Office of Public Prosecutions |
| For the Accused | Mr D. Neal SC with Mr S. Russell | FCW Lawyers |
HIS HONOUR:
Introduction
1On 19 October 2021, a jury of 12 unanimously found Midfield Meat International Pty Ltd (‘Midfield’) guilty of failing to provide and maintain a system of work that was, so far as reasonably practicable, safe and without risks to health contrary to ss 21(1) and 21(2)(a) of the Occupational Health & Safety Act 2004 (‘the Act’).
2What follows are my reasons for imposing sentence on Midfield for that offence.
Circumstances of offending
3Midfield operates an abattoir facility from premises at the corner of Scott Street and McMeekin Road, Warrnambool. As part of its operations, Midfield agists its own livestock at various farming properties. One such property known as ‘Wandobah’, located off Simpsons Lane, Dunkeld was effectively owned and managed by Craig and Jane Oliver. Midfield had been agisting cattle on that farm for about 16 years.
4As at December 2017, Midfield was agisting a mob of 107 steers at Wandobah.
5On or about Tuesday 12 December 2017, a field officer employee of Midfield, Patrick Smith, contacted Craig Oliver ad requested that he place the mob of steers into the cattle yards off Simpson Lane. Mr Smith said that he intended to draft and weigh the cattle that following Friday. Mr Oliver explained that he was not in a position to assist him because of other commitments however, Mr Smith indicated that he intended to carry out the work on his own.
6The evidence at trial unequivocally demonstrated that Patrick Smith was universally regarded as an experienced and skilled stockman who had worked with cattle in enclosed yards on countless occasions. There could be no question that Mr Smith was well qualified to perform the task he intended to carry out that day.
7The cattle yards at Wandobah were constructed in 2002 and according to the evidence in good working order. They consisted of a working race, head bale and several holding yards. There were two main holding yards – one at the northern end and the other to the far southern end. To the east of the southern yard were a series of smaller holding pens that ultimately led to the cattle crush. Each of these smaller pens had a number of gates which were used to separate the cattle until they were eventually forced one by one onto the race which led to the crush where they could be weighed.
8Both parties accepted that Wandobah was a workplace to which the Act applied.
9It was apparently normal practice when moving cattle from the larger holding yards to enter the yards with the cattle to herd them into the smaller pens before closing the gate. Usually this would be achieved using voice and visual indicators.
10At about 7.30am on the morning of 15 December 2017, Mr Oliver herded Midfield’s steers into 2 separate mobs of around 50. One mob was placed into the northern yard, and the second into the larger of the southern cattle yards in readiness for Mr Smith’s arrival. Mr Oliver then left and went back to another part of his property to continue shearing.
11Amongst the steers in those yards on that day was one stag. A stag is a bull which has not been properly castrated and retains a level of testosterone which renders it potentially dangerous. Mr Oliver noted that this animal was the dominant animal in the herd and displayed behaviour such as bellowing and marching up and down. He knew to be cautious of the stag and was aware that Mr Smith knew about this animal because they had both noticed its behaviour on previous occasions when handling these cattle. Mr Oliver believed the stag was left in the northern yard.
12At 8.39am, Mr Oliver received a call from Mr Smith informing him that he had arrived at the yards and that he was going to weigh the cattle. Mr Oliver said that he would be there in about 20 minutes and Mr Smith indicated that he would get started.
13At 8.53am Craig Oliver received a call from Mr Smith, and when he answered there was no response. He assumed it was a ‘pocket dial’ and hung up.
14Mr Oliver arrived at the yards at about 9.20am and immediately noticed that the gates in front of the crush were unchained and partially open, although the cattle, including the stag, were still in the holding yard. All of the gates in the yards were open.
15He then saw Mr Smith lying on his back on the ground outside the entrance to the northern holding yard. He had abrasions to his head, face and legs. He was unconscious and unresponsive. Mr Oliver immediately rang 000 and commenced CPR. Paramedics arrived at about 9.50am but were unable to revive Mr Smith and he was pronounced deceased.
16The cause of death was determined as chest injuries sustained when crushed by a bull.
17The stag, noted to have been agitated earlier that morning, was observed to be in the northern holding yard, in a very agitated state, with some blood staining on its front legs. It was shortly after put down.
18Police and WorkSafe inspectors attended and commenced an investigation which eventually led to the institution of these proceedings.
The charges
19Midfield was originally charged with two offences of failing to provide and maintain a safe system of work.
20The first charge, including the particulars, was in the following terms:
CHARGE 1: The Director of Public Prosecutions charges that MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) at Dunkeld in the State of Victoria on or about 15 December 2017, being an employer failed, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health in that it failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health.
Particulars
1.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) was an employer that agists cattle for processing at a farm property known as ‘Wandobah’ off Simpsons Lane, Dunkeld (the workplace).
2.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) employees periodically attended the workplace to undertake weighing and drafting of cattle in an enclosed yard at the workplace (the task).
3.Certain cattle represent a higher risk to employees due to their aggressive or agitated behaviour, where they are uncastrated, or where they are improperly castrated (dangerous cattle).
4.There was a risk of serious injury or death to employees at the workplace from employees entering an enclosed yard with dangerous cattle. In particular, that risk existed to those undertaking the task with dangerous cattle.
5.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health in regards to undertaking the task with dangerous cattle.
6.It was reasonably practicable for MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) to eliminate or reduce the risk to health and safety by providing and maintaining a system of work in which:
a.Cattle are assessed and those identified as dangerous are then separated; and/or
b.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) employees are not required to enter an enclosed yard with dangerous cattle.
7.On 15 December 2017:
a.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) failed to implement the above control measures;
b.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) employee Patrick Vincent Smith was undertaking the task at the workplace;
c.Amongst the cattle was a Friesian cross bull stag, which by virtue of incomplete castration, was a dangerous bull stag.
d.The risk eventuated when Patrick Vincent Smith sustained fatal injuries whilst undertaking the task with the dangerous bull stag at the workplace.
8.The employees exposed to risks to their health and safety by MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) conduct included (but were not limited to) Patrick Vincent Smith.
21During the course of the trial I ruled that there was no case to answer with respect to Charge 1 based on particular 6(b).[1]
[1] DPP v Midfield Meat International Pty Ltd (Ruling No. 4) [2021] VCC 1569.
22Charge 1 was considered by the jury based on particular 6(a). On Wednesday 20 October 2021, having found the accused guilty of Charge 2 the previous day, the jury indicated that it was unable to reach a verdict on Charge 1 and was therefore discharged.
23At the plea hearing on 17 November 2021, Ms Tittensor announced that a Notice of Discontinuance had been filed by the Director of Public Prosecutions in respect of Charge 1.
24The second charge, including the particulars, was in the following terms:
CHARGE 2: The Director of Public Prosecutions charges that MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) at Dunkeld in the State of Victoria on or about 15 December 2017, as an employer failed, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health in that it failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health.
Particulars
1.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) were an employer that agists cattle for processing at a farm property known as ‘Wandobah’ off Simpsons Lane, Dunkeld (the workplace).
2.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) employees periodically attended the workplace to undertake weighing and drafting of cattle in an enclosed yard at the workplace (the task).
3.There was a risk of serious injury or death to employees from contact with cattle in the enclosed yards when working alone at the workplace.
4.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health in regards to the task.
5.It was reasonably practicable for MIDFIELD MEAT INTERNATIONAL PTY LTD(A.C.N. 065 864 904) to eliminate or reduce the risk to health and safety by providing and maintaining a system of work in which:
a.A risk assessment of the enclosed yards was undertaken for the purposes of identifying a safe area or effective escape route; and
b.Another person was present to act as a backup and to provide assistance in the event of an emergency or ‘man down’ situation when undertaking work in the yard.
6.On 15 December 2017:
a.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) failed to implement the above control measures;
b.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) employee Patrick Vincent Smith was undertaking the task alone at the workplace;
c.The risk eventuated when Patrick Vincent Smith sustained fatal injuries whilst undertaking the task at the workplace.
7.The employees exposed to risks to their health and safety by MIDFIELD MEAT INTERNATIONAL PTY LTD’s (A.C.N. 065 864 904) conduct included (but were not limited to) Patrick Vincent Smith.
Maximum penalty
25The maximum penalty for an offence by a body corporate against s 21 of the Act is a fine of 9000 penalty units. I was advised that at the time the offence was committed, a penalty unit was $158.57. It followed that the maximum fine that might be imposed for this offence was $1,427,130.
Victim impact
26Ms Kellie Smith, Mr Smith’s wife, provided a moving victim impact statement.
2715 December 2017 is a day that, as she put it, “changed our lives forever”. She stated that “Pat was a loving husband, an amazing father to our three beautiful children, a loved son and family member and a good friend to many.”
28Ms Smith described the devastating impact her husband’s death had on all those close to him and then made the following comments:
“Pat used to say something good comes out of a bad situation so let’s honour these words by aspiring to educate and promote farm safety to ensure that no one ever has to face these challenges again”.
29The impact of Mr Smith’s death on his family, as described by Kellie Smith, will be an important consideration to be taken into account in formulating this sentence.
The factual basis for sentence
30On the plea I heard argument as to the factual basis for sentence. Two issues arose.
31The first was whether Midfield should be sentenced on the basis of particular 5(a) (risk assessment) of Charge 2 or on the basis of particular 5(b) (another person present), or indeed whether it should be sentenced on the basis that both particulars had been found proven.
32The second issue pertained to whether the identified measures particularised would have prevented Patrick Smith’s death. As I understood it, the parties accepted that if there was a finding that the measures particularised would have prevented his death, that would aggravate the penalty.
Risk assessment and ‘the two person rule’
33As to the first issue, although particulars 5(a) and 5(b) of Charge 2 were capable of being interpreted as requiring proof of both limbs in order to prove the charge, the Crown put them as alternatives and the jury were therefore directed that they needed to be satisfied as to either 5(a) or 5(b) unanimously before finding the charge proven.[2] It is not clear, therefore, which particular was proven or indeed whether the jury were satisfied as to both limbs.
[2] DPP v Midfield Meat International Pty Ltd (Ruling No. 4) [2021] VCC 1569, [60].
34The principles to be applied in resolving that issue were discussed in Cheung v The Queen [2001] 209 CLR 1 (‘Cheung’).[3] In essence, the factual basis for sentence must be consistent with the verdict of the jury and any finding of fact to be made against the offender must be arrived at beyond reasonable doubt.
[3] The relevant principles were set out in R v Isaacs (1997) 41 NSWLR 374 at 377–378 and were cited with approval (per Gleeson CJ, Gummow and Hayne JJ at 12–13); they were approved in this sentencing context in Director of Public Prosecutions vVibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [186].
35As to particular 5(a) and the alleged failure to provide and maintain a system of work in which a risk assessment of the enclosed yards was undertaken for the purposes of identifying a safe area or effective escape route, Dr Neal, on behalf of Midfield, contended that there was no evidence that Mr Smith had failed to conduct his own risk assessment of the enclosed yards. In any event, if he had conducted a risk assessment or had been required to provide a written risk assessment, that would not have eliminated or reduced the risk to his health and safety. The overwhelming evidence at trial, he submitted, was that the cattle yards at Wandobah were safe and suitable for the work to be performed.
36Ms Tittensor, on behalf of the prosecution, submitted that I should sentence on the basis that particular 5(a) had been proven, having regard to the evidence of one of the defence experts, Dr Lower, that it was industry practice to conduct written risk assessments of cattle yards and that such assessments assist in reducing risks, particularly those caused by inadvertence, haste or carelessness. She referred to the fact that Midfield’s General Manager, Mr McKenna, had agreed that the use of a checklist would remind employees to check for such things as escape routes or whether gates were in working order. If such a system was in place, the employer could keep track as to whether risk assessments were being carried out. Moreover, the evidence of the field officers suggested that a written risk assessment made it easier to resolve any issues about the state of stockyards with farmers.
37Consistent with what was said in Cheung, I would need to be satisfied beyond reasonable doubt of this particular before proceeding to sentence Midfield on that basis. I am not so satisfied. I accept the defence submissions as to this particular.
38The issue of risk assessments did not form a very great part of the evidence adduced at trial. As I have indicated, the working environment the subject of Charge 2 was the Wandobah cattle yards. Such evidence as there was established that those yards were fit for purpose. It followed that if a risk assessment had been carried out, it would not have eliminated the risk to health and safety and was perhaps unlikely to have reduced such risk. The notion that it may have reminded field officers to take care could potentially reduce risk but whether it could have done so in the circumstances confronting Mr Smith on 15 December 2017 seems to me to be somewhat speculative.
39By contrast, the evidence with respect to particular 5(b) seems to be much clearer. As Ms Tittensor submitted, the evidence of the prosecution expert Dr Bush was unambiguous about the risk associated with an employee getting into enclosed yards in order to weigh and draft a large mob of cattle. The risk to health and safety increased because the person in that position has a limited capacity to monitor all of the animals in the yard. The presence of another person in a position to oversee the process would reduce that risk.
40Dr Lower gave evidence to similar effect. He stated that the risk of serious injury or death if something went wrong was higher if working alone. The risk might be reduced, for example, because the second person might warn of danger, distract an animal or render assistance if the other person was injured.
41It is plain that the jury accepted this evidence.
42The evidence of the second defence expert, Dr Beggs, was in my view much less satisfactory. Although he accepted that industry practice suggested that a person should not work alone with bulls, he asserted that it was sufficient if a person working alone had a phone in their pocket, in circumstances where another person was to arrive in 20 minutes or so.[4] Those were precisely Mr Smith’s circumstances.
[4] Trial Transcript, page 785, line 14.
43In my view, the jury rejected Dr Beggs’ opinion. The evidence revealed that Mr Smith’s mobile phone had rung Mr Oliver at around the time of the incident and that his phone had been damaged in the contact with the stag. Whether the call was an intentional call or a ‘pocket dial’ cannot be known. Whatever the true position, Dr Beggs’s assertion that someone contactable by phone 20 minutes away was sufficient in the circumstances was not credible and could not have been accepted.
44Consistent with the jury verdict, I am satisfied as to particular 5(b) beyond reasonable doubt. I will proceed to sentence Midfield on the basis that it was reasonably practicable for Midfield to eliminate or reduce the risk to health and safety by providing and maintaining a system of work in which another person was present to act as a backup and to provide assistance in the event of an emergency or ‘man down’ situation when undertaking work in the yard.
Whether ‘the two person rule’ would have eliminated the risk
45Before moving to the second issue, it seems to me that it would be helpful to spell out the principles that apply in sentencing offenders in respect of breaches of the Act where death or serious injury occurs. Those principles were helpfully stated in in DPP v Frewstal Pty Ltd [2015] VSCA 266 (‘Frewstal’) per Kaye and Priest JJA at [127]:
“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.”
46Consistent with those principles, the Crown did not undertake to prove the precise mechanism of Mr Smith’s death during the trial. Indeed, the jury were warned to the effect that Midfield was not on trial for causing Mr Smith’s death and that what was at issue related to whether Midfield had failed to address a risk by failing to provide and maintain a safe system of work.
47For that reason, there was little in the way of forensic investigation of the precise circumstances leading to Mr Smith’s death, and in the absence of evidence of that kind it is not possible to reach any conclusion about whether the presence of a second person would necessarily have prevented the death, or, to put it in terms of the particulars of the offence, whether it would have “eliminated” the risk of death or serious injury.[5] That is so despite the General Manager Mr McKenna’s assertion in his statement to police that he believed Pat’s death was preventable and that he should have been working with another person on the day.
[5] This situation may be contrasted with the position in DPP v Vibro-Pile (2016) 49 VR 676 where the question of causation was exhaustively investigated during the course of that trial. See 723 [197].
48On the strength of the evidence that was adduced at trial I can, however, be comfortably satisfied, again consistent with the jury verdict, that the presence of a second person would have “reduced” the risk of death or serious injury. As Dr Bush made clear, the presence of another person in a position to oversee the task performed by the field officer would have provided another set of eyes which could warn of danger or assist in the event of emergency. Accordingly, Midfield will be sentenced on the basis that the identified measure would have reduced rather than eliminated the risk of death or serious injury.
Nature and gravity of the offence
49The second of the principles described in Frewstal referred to two matters to be considered in assessing the gravity of the breach of duty by the employer. They were the seriousness of the breach itself, i.e. the extent to which the offender had departed from its statutory duty, and the extent of the risk of death or serious injury which might result from the breach. I will address each of those matters in turn.
The extent of departure from statutory duty
50The Crown submitted that this was a serious breach of Midfield’s duty to provide and maintain a safe working environment.
51First, it was submitted that as a matter of general principle, employers are required to be alert to risks to health and safety and to actively identify and address those risks. In doing so, they should adopt an active, imaginative and flexible approach to the potential dangers faced by their employees.
52Second, it was submitted that Midfield was a meat processing business and one of its core activities was the handling of cattle off-site. It should have been alert to the risks posed to employees when handling cattle in enclosed yards. There was no system in place, it was argued, to ensure that field officers only entered a yard when someone else was present to provide back up in the event of an emergency. All Midfield did was leave it to the “discretion” of the field officers. Accordingly, this was not a case of a failure to adhere to a safe system of work; rather, it was a case of failure to implement a safe system at all.
53Third, it was contended that this was not an isolated failure. Mr Oliver in his evidence stated that Mr Smith had worked alone in similar circumstances “very occasionally” – he estimated “under six times”.[6]
[6] Trial Transcript of Proceedings, p 446, line 23; p 447, line 6.
54Those features amounted to what was contended to be a serious breach.
55Dr Neal submitted that the breach did not fall far short of the standard required in the circumstances and accordingly this was not a serious breach.
56The evidence unquestionably established that thousands and thousands of farmers work alone with cattle in cattle yards. Mr Oliver had moved that mob of cattle into those yards that morning and safely separated them into two mobs. Many of the witnesses with farm experience indicated that they would perform the activity of drafting cattle in a similar way to that performed by Pat Smith without a second person being present and without incident. Indeed, Pat Smith had performed that same activity on his own farm that morning without incident.
57It was submitted that Midfield, before this incident, was entitled to take the view that hiring the most experienced cattle handlers it could find and thoroughly testing them was the most effective way of eliminating or reducing the risk to health and safety to employees when they were working in enclosed yards off-site. Experienced handlers are readily able to identify dangerous cattle and assess how best to manage them. For example, Pat Smith had worked with Midfield for 27 years; he was highly skilled and, it was submitted, well capable of assessing all types of cattle and employing all safety measures required.
58Moreover, industry guidance as to the handling of bulls did not speak with one voice. For example, whilst the WorkSafe publication ‘A practical safety guide - Beef cattle handling’ counselled to “never work bulls on your own”,[7] a cattle handling safety guide published by the Australian Centre for Agricultural Health and Safety merely advised that “work should be undertaken with a partner where possible” when forcing cattle into pens and races.[8] It was argued that the so-called two-person rule was contrary to widespread practice and contrary to the expert evidence relied on by the defence.
[7] ‘A practical safety guide – Beef cattle handling’, WorkSafe Victoria, p 3.
[8] ‘Cattle Handling Safety – A Practical Guide’, Australian Centre for Agricultural Health and Safety, June 2016, p 23.
59In considering these submissions I have come to the view that this was a serious breach of the duty imposed by the legislation. I accept the Crown submissions on this point. In my view, it was well and good for Midfield to ensure that field officers were well qualified and good at their jobs, as the evidence demonstrated they were, but that was not enough. Midfield was required to implement an appropriate system of work which addressed the risk to employees when working with cattle in enclosed yards, and it failed to do so.
60Working with cattle, particularly bull/stags, is an inherently dangerous activity, not least because of the animals’ unpredictability. Irrespective of whether industry guidance was in advisory or mandatory terms, Midfield was under a duty to put in place a system that was known and clearly understood by all field officers, that so far as reasonably practicable eliminated or reduced the risks to field officers working in those conditions. One simple measure that could, and should, have been taken was to ensure that a second person was present when managing cattle in enclosed yards.
61I note that since Mr Smith’s death, Midfield have introduced such a system. A document titled ‘Cattle Yard Checks’ was exhibited at trial. It described the sorts of checks field officers working in circumstances like those of Mr Smith were required to carry out as to the safety of the cattle yards. Relevantly, the document states:
“Under no circumstances area [sic] Midfield employees to enter Pens or Yards that have cattle encaged in that area without another competent person present.”
62The introduction of that rule was clearly appropriate. The extent to which Midfield departed from its statutory duty is, in one respect, illustrated by comparing that rule with what was in existence at the time of Mr Smith’s death. The rule as it now stands is unambiguous; the previous position not so. The General Manager, Mr McKenna, recognised as much when he told police that someone else should have been present.
63In addition, I accept, as I am satisfied the jury accepted, Dr Bush’s evidence to the effect that having two people present would “definitely make it a safer environment in which to work”.[9]
[9] Trial Transcript of Proceedings, page 552, line 21.
64I am satisfied that the extent of the departure from the statutory duty was significant.
The extent of the risk of death or serious injury
65The second feature to be taken into account relates to the extent of the risk of death or serious injury which might result from the breach of the statutory duty. As the third principle identified in Frewstal makes clear, the assessment of the extent of risk examines the likelihood of the occurrence of the event which resulted in the breach and the potential gravity of the consequences of such an event.
66The Crown submitted that the that the likelihood of the incident occurring was moderate to high, bearing in mind that the risk actually eventuated on 15 December 2017. Midfield employees were frequently engaged in dealing with large animals, known to be unpredictable, in an enclosed space. The foreseeable potential consequences were well demonstrated by what happened to Mr Smith.
67Dr Neal submitted that the likelihood of the risk materialising in this instance was exceedingly rare. He relied upon some statistical information produced by Dr Lower and Dr Beggs. For example, Dr Lower referred to the National Coronial Information System data that indicated that, over a period of 19 years or so, there had been 31 deaths involving cattle, 19 of which occurred in cattle yards. Dr Neal also relied on Mr Oliver’s evidence to the effect that he had worked with bulls on his own on literally thousands of occasions without incident. On that basis, it was submitted that the risk of death or serious injury being realized was extremely small.
68At the plea hearing I indicated to Dr Neal that I did not find some of the statistical information relied on, particularly that produced by Dr Beggs, persuasive. Nevertheless, I am prepared to act on the basis that the likelihood of the risk materialising was relatively rare. That is so because the field officers were highly competent, and the reality is that many farmers often work alone in such circumstances without incident. On the other hand, the potential harm arising when the risk does materialise is extremely serious, as what happened to Mr Smith demonstrates.
Other factors
69Section 20(2) of the Act describes certain matters to which regard must be had in determining what was reasonably practicable in ensuring health and safety. One of those factors directs attention to what Midfield knew, or ought reasonably to have known, about the risk and any ways of eliminating or reducing that risk.[10]
[10] Occupational Health & Safety Act 2004 (Vic) s 20(2)(c).
70Here, the prosecution submit that Midfield should have well appreciated the risk by reference to the substantial industry guidance material available in the public domain. It was not a question of hindsight – Midfield was well aware at the time of the availability of measures which would have reduced the risk.
71I accept those submissions. Although, as I have indicated, the industry guidance did not speak with one voice, there was ample material available warning of the risks associated with handling large cattle, particularly bulls, in enclosed yards. Indeed, the nature of Midfield’s undertaking and the experience of its drovers and field officers would have meant that the risk was obvious. Mr McKenna’s admission that Mr Smith should have been working with another person on the day makes that point.
72A further matter to be taken into account as to reasonable practicability is the availability and suitability of safety measures to eliminate or reduce the risk.[11] The measure identified in particular 5(b) could have been easily adopted. Indeed, it was easily adopted, such that now employees are prohibited from working alone in enclosed yards without another competent person present.
[11] Ibid s 20(2)(d).
73Finally, the cost of implementing the identified measure was not in issue.[12]
[12] Ibid s 20(2)(e).
Previous convictions
74Midfield has four prior convictions for safety-related offending against the Act arising out of three separate incidents.
75The first came before the Warrnambool Magistrates’ Court in July of 1998 where Midfield was convicted and fined $8,000 for failing to provide and maintain a safe working environment. The circumstances of that offence were not described to me.
76The second occasion was again before the Warrnambool Magistrates’ Court in February 2010. On that occasion, an employee at the abattoir suffered serious injuries when his arm was dragged into a conveyor which was not adequately guarded. The company was fined $35,000 with conviction.
77On the third occasion in March 2017, before the same court, an employee fitter and turner removed a motor and gearbox from an automated retrieval system, part of which fell onto him, causing him serious head injuries. Midfield pleaded guilty to failing to provide a safe system of work, and failing to provide information, instruction, training or supervision. The company was convicted and sentenced to pay a fine of $47,000.
78Ms Tittensor submitted that those previous convictions required further emphasis on specific deterrence when imposing this sentence.
79Dr Neal submitted that Midfield own and operate 16 farms: 6 primarily dairy, 1 dairy and beef, and the other 9 consisting of beef, sheep and crops. Those farms are staffed by managers and employees of Midfield. There are no prior convictions relating to the farm operations of Midfield.
80In my view, although Midfield’s previous convictions relate to other aspects of its operations, they are nonetheless relevant and do point to the need for emphasis on specific deterrence. On the other hand, I am mindful of the fact that Midfield took corrective action very shortly after Mr Smith’s tragic death and have now put in place procedures which require that a second person be present when field officers are to enter an enclosed yard with cattle. That latter circumstance will operate to somewhat constrain the emphasis on specific deterrence otherwise required.
Midfield’s background
81The Midfield Group was started in 1975 and now consists of 10 separate companies generally connected with meat processing. There are approximately 1,076 direct employees.
82Dr Neal argued that the majority of safety issues for Midfield’s operations arise within the abattoir and that significant efforts have been made to ensure the safety of its employees in all aspects of its operations. He explained that Midfield has constantly upgraded its safety equipment, training and safe operating procedures to ensure it is compliant with its occupational health and safety (OH&S) responsibilities. There is a dedicated OH&S Senior Manager who is well qualified to deal with all safety aspects of the company’s operations.
83Midfield is also a prominent corporate citizen that takes an active role in the local Warrnambool community. Dr Neal stated that, since July 2019, Midfield has provided donations totalling just over $940,000 to various charities, schools, emergency services and health services in the local area. Beyond that, they have provided nearly $240,000 in sponsorships to various schools sports clubs and community societies.
84The prosecution did not take any substantial issue with those matters and I will take them into account in Midfield’s favour.
85It was also pointed out that Midfield is audited regularly by major customers and regulatory agencies. As Dr Neal put it:
“Occupational Health & Safety is key to these customers (and agencies) and a conviction will have a detrimental impact and possibly result in the cancellation of some of Midfield’s largest contracts”.
86As to this last point, I accept that part of the punitive effect of conviction and sentence for this offence will likely be reputational damage to the company. I cannot, however, speculate as to how that damage might impact its business.
Comparative cases
87As one of the many factors that must be taken into account, the Sentencing Act 1991 requires that regard be had to current sentencing practices. Two decisions were put forward by the prosecution, which, it was suggested, may be of some guidance.
88The First was DPP v Resource Recovery Victoria Pty Ltd [2015] VCC 472 (‘Resource Recovery’).
89In that case, the defendant company pleaded guilty to one charge of failing to provide a safe system of work and one charge of failing to provide the necessary information, instruction and training contrary to s 21 of the Act. Those charges arose out of an incident in which an employee drove a large front end loader out of a shed, and in doing so failed to lower its bucket sufficiently to enable him to see another employee who was driving a small sweeper in his path. The front end loader struck the street sweeper, killing the other employee. Resource Recovery did not have any prior convictions for safety-related offences and was convicted and sentenced to pay an aggregate fine of $450,000.
90The second decision was DPP v VicRoads and DPP v Downer EDI Works Pty Ltd [2017] VCC 2021 (‘EDI’).
91In that case, EDI was charged with failing to have a safe system of work, failing to provide necessary information to employees and failing to provide appropriate supervision contrary to s 21 of the Act. EDI had engaged a traffic control company to perform traffic management operations whilst undertaking roadworks. It had engaged another company to supply a sweeper vehicle and driver. A traffic management worker was struck and killed by the sweeper vehicle when it reversed into him without warning.
92It was alleged that EDI’s induction to the workplace did not address the dangers posed by the sweeper vehicle, that it failed to provide safe procedures for moving or setting up bollards at the worksite, and that it failed to effectively supervise the operation of the sweeper. It was alleged that spotters had been provided for other mobile plant operating at that worksite, but no spotters were assigned to the sweeper vehicle.
93EDI was found guilty after trial and admitted a number of relevant prior convictions. It was ultimately fined $650,000 on the first charge, $400,000 on the second charge and $250,000 on the third charge.[13]
[13] Counsel pointed out that whilst the same maximum penalty was applicable in these cases as is the position here, the value of a penalty unit was lower.
94Ms Tittensor submitted that there were some parallels between these cases that rendered them useful comparators. Each case involved:
· a similar risk, namely being struck by a large moving object;
· the risk arising in circumstances where the workers were in close proximity to the large moving object;
· the use (or non-use) of spotters, an analogous control measure to having a second person present; and
· control measures which were well known within the respective industries.
95On the strength of those matters, the prosecution submitted that when one takes into account the objective seriousness of this offence, the impact it had on its victims, the primacy of general deterrence and the need to give some emphasis to specific deterrence the imposition of a substantial fine was warranted.
96Dr Neal suggested there were no cases with material similarities, or that were in some way instructively different, that might be useful as comparators. As I understood him, he submitted that the analogies sought to be drawn by the Crown from Resource Recovery and EDI were strained and unhelpful. That was so because the breaches identified in each of those cases were causally linked to the deaths. That was not the position here, because, as I have found, it is not possible to reach any firm conclusion as to whether the identified measure would necessarily have prevented death.
97It was submitted that a substantially lower fine should be imposed in this case when compared to those imposed in either of the two cases relied on by the Crown.
Conclusion
98I accept, as the defence contended, that the utility of the past decisions referred to is limited. There are a myriad of variables that make useful comparison fraught. I will, however, have regard to general current sentencing practice in this area as one of many relevant sentencing considerations to be weighed.
99I also accept that Midfield is an important corporate member of the local community in Warrnambool, both in the size of its undertaking, including the employment it provides, and in that it is active in giving back to the community through charitable donations, sports sponsorships and the like.
100Moreover, Mr Smith’s death was deeply felt at Midfield, as both Mr McKenna’s evidence and Ms Smith’s victim impact statement made clear. It is to be hoped, as Ms Smith wishes, that farm safety is prioritised so as to avoid others having to go through what she and her family had to endure. Midfield’s response to this incident by introducing a hard and fast rule that would, I think, significantly reduce the likelihood of this sort of tragedy occurring again, may provide some comfort.
101That said, the predominant sentencing purpose in imposing this sentence must be to demonstrate to all employers that they have an active and ongoing duty to ensure, so far as is practicable, the health and safety of their employees. If employers such as Midfield fail to provide and maintain systems which provide a safe working environment, they must expect that they will be heavily financially penalised and with it incur substantial reputational damage.
102In addition, this is not the first time that Midfield has committed an offence of this kind and although its previous convictions arise in a different part of its operations, the purpose for which this sentence will be imposed must also, to some degree, seek to deter Midfield from further offending.
103Finally, I have found that the breach of statutory duty in this case was serious and constituted a significant departure from the standard required. Although tragedies of this kind are relatively rare, when incidents like this do happen they can be catastrophic and every effort must be made to avoid their occurrence.
Sentence
104Taking all relevant matters into account, Midfield Meat International Pty Ltd will be convicted and sentenced to pay a fine of $400,000.