Director of Public Prosecutions v Roads Corporation (trading as VicRoads) (ABN 61 760 960 480); Director of Prosecutions v Downer Edi Works Pty Ltd (ACN 008 709 608)
[2017] VCC 2021
•1 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00353
Case No. CR-14-00354
Indictment No. C1409516.2
Indictment No. C1409516.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROADS CORPORATION (trading as VICROADS) (ABN 61 760 960 480) |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOWNER EDI WORKS PTY LTD (ACN 008 709 608) |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 26 and 27 June 2017 | |
DATE OF SENTENCE: | 1 December 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Roads Corporation (trading as VicRoads) (ABN 61 760 960 480); Director of Prosecutions v Downer EDI Works Pty Ltd (ACN 008 709 608) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 2021 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentences for breaches of s22(1), s(2)(a), s(2)(e) and s23(1) of the Occupational Health and Safety Act 2004
Legislation Cited: Occupational Health and Safety Act 2004; Road Safety Act 1986; Criminal Procedure Act 2009; Transport Act 1983; Transport Integration Act 2010; Transport (Amendment) Act 1989; Occupational Health and Safety Regulations; Occupational Health Safety and Welfare Act 1986; Workplace Health and Safety Act 1995
Cases Cited:Director of Public Prosecutions v Downer EDI Works Pty Ltd and Roads Corporation T/as VicRoads (2015) 47 VR 688; Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd(t/as Amcor Fibre Packaging Australasia) (2005) 11 VR 557; R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321; Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119; R v Australian Char Pty Ltd [1999] 3 VR 834; WorkCover Authority of New South Wales v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23; Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87; Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIRComm 16; WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239; Director of Public Prosecutions v Frewstal Pty Ltd (2015) VR 660; Director of Public Prosecutions (Vic) v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; Capral Aluminium Ltdv WorkCover Authority of New South Wales (2000) 49 NSWLR 610; Dotmar EPP Pty Ltd v R [2015] VSCA 241; Director of Public Prosecutions v Aydin & Kirsch (2005) VSCA 86; Maybus v R [2017] VSCA 125; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; Cameron v R (2002) 209 CLR 339; Atholwood v R (1999) 109 A Crim R 465
Sentence: Roads Corporation- convicted and fined $250,000.00; Downer EDI Works Pty Ltd – convicted of each charge, fined $650,000.00; $400,000.00 and $250,000.00.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Tovey QC with Ms S. Keating | Solicitor for the Office of Public Prosecutions |
| For the Roads Corporation (trading as VicRoads) | Mr N. Clelland QC with Ms M. Fox | Maddocks |
| Downer EDI Works Pty Ltd | Mr R. Taylor with Ms E. Coates | Seyfarth Shaw Lawyers |
HIS HONOUR:
Preamble
1 As at 20 October 2011, Downer EDI Works Proprietary Limited had successfully tendered for a road resurfacing project from the Roads Corporation (trading as VicRoads) for asphalting works, including a stretch of Canterbury Road, near the corner of Bayswater Road, Bayswater.
2
Downer EDI Works Proprietary Limited, being the principal contractor, engaged some contractor firms to carry out aspects of the asphalting work under the contract with the Roads Corporation (trading as VicRoads). Such contractors included Statewide Traffic Control Proprietary Limited, which employed
Mr Harry Zagaretos (who I shall refer to as “Zagaretos”) as a pedestrian traffic controller and also U-Sweep Proprietary Limited, which employed Mr Wayne Pollard (to whom I shall refer to as “Pollard”), who was a driver of the street sweeper.
3 On 30 November 2011, Zagaretos was aligning bollards which separated the live traffic lane from the worksite, while the sweeper was operating along the length of the site, at times close to the bollards. While Zagaretos was attending to the bollards and had his back turned to the sweeper, the sweeper reversed towards him and ran over him, causing the death of Zagaretos.
4 Such event prompted an investigation by the Victorian WorkCover Authority and ultimately proceedings were issued, alleging breaches of the Occupational Health and Safety Act 2004.
The proceedings
5 On 23 January 2017, Indictment No.C1409516 was listed before the court. That indictment alleged three offences against both Downer EDI Works Proprietary Limited (ACN 008 709 608), which I shall refer to as “Downer” and Roads Corporation (trading as VicRoads) (ABN 61 760 960 480), which I shall refer to as “VicRoads”. All such offences are alleged to be breaches of the Occupational Health and Safety Act 2004 (which I shall refer to as “the Act”).
6 The Indictment was initially filed before Her Honour Judge Davis on 18 February 2015. After ensuing argument, a case stated was referred to the Court of Appeal, with both accused challenging the validity of the charges, on the basis that the conduct in question was governed, not by the Act, but by the Road Safety Act 1986. That challenge failed (see DPP v Downer EDI Works Proprietary Limited & Roads Corporation[1]).
[1](2015) 47 VR 688
7 On Monday, 23 January 2017, the court was informed that the prosecution against VicRoads was resolved, in that VicRoads would plead guilty to one offence under the Act. Accordingly, the Director of Public Prosecutions filed Indictment C1409516.2 against VicRoads, pleading one charge, to wit, failing to provide and maintain safe plant or systems that was contrary to s.21(1) and s.21(2)(a) of the Act. In particular, the statement of offence is pleaded as follows:
“CHARGE 1 The Director of Public Prosecutions charges that ROADS CORPORATION (t/a VICROADS) (ABN 61 760 960 480) at Bayswater in Victoria on the 30th day of November 2011, being an employer, failed so far as was reasonably practicable, to provide and maintain for it’s (sic) employees a working environment that was safe and without risk to health in that it failed to provide or maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health in that:
PARTICULARS:
(a)ROADS CORPORATION t/a VICROADS (ABN 61 760 960 480) was at all material times a body corporate within the meaning of the Occupational Health & Safety Act 2004.
(b)On 30 November 2011, Harry Zagaretos was killed, when hit by a street sweeper operated by Wayne Pollard whilst moving traffic control bollards at a workplace, being a road re-surfacing site along a stretch of Canterbury Road near the corner of Bayswater Road, Bayswater.
(c)DOWNER EDI WORKS PTY LTD (ACN 008 709 608) had control of the workplace including a responsibility for the health and safety of the employees working at the workplace, subject to the supervision of ROADS CORPORATION t/a VICROADS (ABN 61 760 960 480).
(d)DOWNER EDI WORKS PTY LTD (ACN 008 709 608) and ROADS CORPORATION t/a VICROADS (ABN 61 760 960 480) directly employed persons at the workplace and engaged independent contractors whose employees worked at the workplace, which persons were employees pursuant to s21(3) of the Occupational Health & Safety Act 2004.
(e)ROADS CORPORATION t/a VICROADS (ABN 61 760 960 480) required DOWNER EDI WORKS PTY LTD (ACN 008 709 608) to submit a Traffic Management Plan for its approval, which governed the works at the site, including the movement of pedestrians and traffic.
(f)The Traffic Management Plan required the set up and movement of traffic control devices, including bollards.
(g)ROADS CORPORATION t/a VICROADS (ABN 61 760 960 480) had the authority to stop works at the start if there was imminent danger to safety on the site.
(h)On 30 November 201[1] imminent danger to safety arose when the supervisor Mr Summerscales was clipped on the shoulder by the street sweeper vehicle, driven by Mr Pollard.
(i)On 30 November 2011, shortly after the above incident, Harry ZAGARETOS was killed, when hit by a street sweeper operated by Wayne POLLARD, whilst he was moving traffic control bollards in accordance with the Traffic Management Plan.
(j) The system of work operating at the workplace was unsafe in that:
a. The street sweeper driving by Wayne POLLARD was repeatedly driven in a manner which was unsafe and without warning breached exclusion zones relating to persons vehicles and passing traffic;
b. The street sweeper was driven in reverse when unnecessary;
c. Persons on foot on the site, including those moving bollards, were sometimes unaware of the movements of the sweeper and were exposed to the possibility that it would run into them.
(k)It was reasonably practicable for ROADS CORPORATION t/a VICROADS (ABN 61 760 960 480) to have:
a. Ensured that a risk assessment was undertaken or arranged by Downer EDI, as part of the Traffic Management Plan approval process, that identified the risk of collision between mobile plant and pedestrian workers who were moving bollards to ensure compliance with the Traffic Management Plan set up, and identified measures to reduce or eliminate that risk.
b. Ensure that the representative for ROADS CORPORATION t/a VICROADS (ABN 61 760 960 480) had the capacity in accordance with its supervisory authority, to shut down works on the site by immediate communication by two-way radio or otherwise with representatives from DOWNER EDI WORKS PTY LTD (ACN 008 709 608) when there was an imminent danger to health or safety of employees on the site.
Statement of Offence – Failing to provide and maintain safe plant or systems of work contrary to s.21(1) & (2)(a) of the Occupational Health and Safety Act 2004.”
8 On 23 January 2017, a representative from VicRoads was arraigned and pleaded guilty to the above charge. The matter was then adjourned to a date to be fixed for plea.[2]
[2]That being on 26 and 27 June 2017
9
Over the period from 23 to 30 January 2017, pre-jury empanelment argument ensued in relation to charges against Downer. On 30 January 2007,
Indictment C1409516.1 was formally filed, containing three charges against Downer, to wit, failing to provide and maintain a systems of work contrary to s.21(1) and s.21(2)(a) of the Act; failing to provide adequate information, instruction, training or supervision, that was contrary to s.21(1) and s.21(2)(e) of the Act; and failing to ensure that people, other than employees of the employer, were not exposed to risks to their health or safety, arising from the conduct of the undertaking of the employer, contrary to s.23(1) of the Act.
10 Subsequently, the court made two rulings- the first of which involved whether it was incumbent upon the prosecuting authority to particularise why some particular action was “necessary” within the meaning of s.21(2)(e) of the Act,[3] and a second ruling in relation to the pleading of Charge 2 in the Indictment was correct in law.[4] Both rulings prompted interlocutory appeals by Downer, for which the court refused to certify, pursuant to s.295 of the Criminal Procedure Act 2009.
[3]A short-form Ruling was delivered on 24 January 2017 and a written Ruling on 30 January 2017 (see Ruling 1, DPP v Downer EDI Works Pty Ltd (ACN 008 709 608)
[4]See written Ruling (No 3) dated 1 February 2017
11 An application seeking review of the court’s refusal to certify came before the Court of Appeal on 6 February 2017 and on 7 February 2017, the court refused such application.[5]
[5]See Downer Edi Works Pty Ltd (ACN 008 709 608) v R [2017] VSCA 27
12 On 27 February 2017, a jury was empanelled and a representative of Downer was arraigned and there were pleas of not guilty to the three charges. Over the period from 7 March to 8 March 2017, two juries were discharged, with a new jury being empanelled on 8 March 2017, with, again, the representative of Downer arraigned in front of the jury and pleading not guilty to each of the three charges.
13 During the course of the trial, leave was given to the Director of Public Prosecutions to amend certain particulars of Charge 1, and thereafter I set out the particulars of the charges:
““CHARGE 1 The Director of Public Prosecutions charges that DOWNER EDI WORKS PTY LTD (ACN 008 709 608) at Bayswater in Victoria on the 30th day of November 2011, being an employer, failed so far as was reasonably practicable, to provide and maintain for it’s (sic) employees a working environment that was safe and without risks to health in that it failed to provide or maintain systems of work that were, so far as reasonably practicable, safe and without risks to health in that:
PARTICULARS:
(a)DOWNER EDI WORKS PTY LTD (ACN 008 709 608) was at all material times a body corporate within the meaning of the Occupational Health and Safety Act 2004.
(b)On 30 November 2011, Harry ZAGARETOS was killed, when hit by a street sweeper operated by Wayne POLLARD, whilst moving traffic control bollards at a workplace being a road re-surfacing site along a stretch of Canterbury Road near the corner of Bayswater Road, Bayswater.
(c)DOWNER EDI WORKS PTY LTD (ACN 008 709 608) had control of the workplace including the responsibility for the health and safety of the employees working at the workplace.
(d)DOWNER EDI WORKS PTY LTD (ACN 008 709 608) directly employed persons at the workplace and engaged independent contractors whose employees worked at the workplace, which persons were employees in accordance with s.21(3) of the Occupational Health and Safety Act 2004.
Safe system of work:
(e) The system of work operating at the workplace was unsafe in that:
a. The sweeper vehicle operated by Wayne POLLARD was repeatedly driven in a manner which was unsafe and without warning, breached exclusion zones relating to persons, vehicles and passing traffic;
b. The sweeper vehicle was driven in reverse in the work zone when unnecessary;
c. Persons on foot at the Bayswater site, including those moving bollards, were sometimes unaware of the movements of the sweeper vehicle and were exposed to the possibility that it would run into them.
(f)DOWNER EDI WORKS PTY LTD (ACN 008 709 608) failed to require that:
a.Bollards not be moved whilst machinery was working in close proximity to those bollards;
b.The sweeper vehicle reverse on site only if turning and moving in a forward direction was not practicable;
c.Before reversing, the driver of the sweeper vehicle should either alight from the vehicle and check the way was clear, or use a spotter;
d.The sweeper should not reverse other than for a short distance or in an exclusion zone unless, before reversing, the driver either alights and checks the way is clear or uses a spotter.
e.The driver of the sweeper vehicle communicate through the spotter or by radio with pedestrian workers in the vicinity before reversing.
Each of which requirements were reasonably practicable.
Statement of Offence – Failing to provide and maintain safe plant or systems of work contrary to s.21(1) & (2)(a) of the Occupational Health and Safety Act 2004.
CHARGE 2 The Director of Public Prosecutions charges that DOWNER EDI WORKS PTY LTD (ACN 008 709 608) at Bayswater in Victoria on the 30th day of November 2011, 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 such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health in that it:
PARTICULARS:
(a) DOWNER EDI WORKS PTY LTD (ACN 008 709 608) was at all material times a body corporate within the meaning of the Occupational Health and Safety Act 2004.
(b) On 30 November 2011, Harry ZAGARETOS was killed, when hit by a street sweeper operated by Wayne POLLARD, whilst moving traffic control bollards at a workplace being a road re-surfacing site along a stretch of Canterbury Road near the corner of Bayswater Road, Bayswater.
(c) DOWNER EDI WORKS PTY LTD (ACN 008 709 608) had control of the workplace including the responsibility for the health and safety of the employees working at the workplace.
(d) DOWNER EDI WORKS PTY LTD (ACN 008 709 608) directly employed persons at the workplace and engaged independent contractors whose employees worked at the workplace, which persons were employees in accordance with s.21(3) of the Occupational Health and Safety Act 2004.
Instruction and Training:
(e)The DOWNER EDI WORKS PTY LTD (ACN 008 709 608) failed to provide such information and instruction as was necessary to enable its employees to perform their work in a way that was safe and without risks to health because:
a. The DOWNER EDI WORKS PTY LTD (ACN 008 709 608) induction did not address the dangers posed by the sweeper vehicle reversing on a busy site and risk of injury to pedestrians and to occupants of other vehicles.
b.There was no Safe Work Method statement or similar document setting out safe procedures for moving or setting up bollards and addressing the dangers posed by the movement of the sweeper on the site to persons on foot.
Statement of Offence – Failing to provide adequate information, instruction, training or supervision contrary to s.21(1) & (2)(e) of the Occupational Health and Safety Act 2004.
CHARGE 3 The Director of Public Prosecutions charges that DOWNER EDI WORKS PTY LTD (ACN 008 709 608) at Bayswater in Victoria on the 30th day of November 2011, being an employer, failed so far as was reasonably practicable, to ensure that persons other than its employees were not exposed to risks to their health and safety arising from the conduct of its undertaking in that it:
PARTICULARS:
(a)DOWNER EDI WORKS PTY LTD (ACN 008 709 608) was at all material times a body corporate within the meaning of the Occupational Health and Safety Act 2004.
(b)On 30 November 2011, Harry ZAGARETOS was killed, when hit by a street sweeper operated by Wayne POLLARD, whilst moving traffic control bollards at a workplace being a road re-surfacing site along a stretch of Canterbury Road near the corner of Bayswater Road, Bayswater.
(c)DOWNER EDI WORKS PTY LTD (ACN 008 709 608) had control of the workplace including the responsibility for the health and safety of employees working at the workplace.
(d)DOWNER EDI WORKS PTY LTD (ACN 008 709 608) directly employed persons at the workplace and engaged independent contractors whose employees worked at the workplace, which persons were employees in accordance with s.21(3) of the Occupational Health and Safety Act 2004.
Supervision
(e)DOWNER EDI WORKS PTY LTD (ACN 008 709 608) failed to supervise the operation of the street sweeper and the movements of employees on foot in the vicinity of the sweeper vehicle s as to prevent exposure of such employees to the risk of being hit by the sweeper vehicle.
(f)it was reasonably practicable to have at the Canterbury Road worksite a supervisor who was required and able to monitor and control, at all times, the safe movement of vehicles performing road works within the worksite, including the sweeper driven by Wayne Pollard.
Statement of Offence – Failing to ensure that people other than employees were not exposed to risks contrary to s.23(1) of the Occupational Health and Safety Act 2004.”
14 After a trial lasting approximately 20 days from when the third jury was empanelled, the jury delivered, on 11 April 2017, verdicts of guilty in relation to each of the charges.
Penalty
15
It is common ground that each breach of s.21(1) and s.23 of the Act, carries
a maximum penalty of 9,000 penalty units for a body corporate at the time of the subject offending. Again, at the time of the subject offending, a penalty unit was $122.14, giving rise to a maximum penalty of $1,099,260 for each offence.
The legislation
16 Workplace safety is now governed by the Act, which came into force on 1 July 2005, with the repeal of the Occupational Health and Safety Act 1985 (the “1985 Act”). The Act imposed two principal safety duties on Victorian employers. The first is the employer’s duty to provide, so far as is reasonably practicable, a safe working environment for its employees.[6] The second is the employer’s duty to ensure, as far as is reasonably practicable, that “persons other than [its] employees” are not exposed to safety risks as a result of the conduct of its undertaking.[7] In both cases, the employer is obliged to eliminate safety risks or, where that is not reasonably practicable, to mitigate the risks so far as is practicable.[8]
[6]See s21 of the Act
[7]See s23 of the Act
[8]Save for the exception contained in s32 of the Act which imposes liability for reckless conduct that “places … another person at a workplace in danger of serious injury”
17
I set out those sections of the Act, relevant to the subject offending.
Sections 21 and 23 state:
“(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health … .
(2)Without limiting sub-section (1), an employer contravenes that subsection if the employer fails to do any of the following—
(a)provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b)…
(c)…
(d)…
(e)provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.
(3) For the purposes of subsections (1) and (2)—
(a)a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and
(b)the duties of an employer under those subsections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
(4) …
22 …
23 …
(1)An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
…
(2)… .”
18 I also refer to s.20 of the Act, which states:
“20 …
(1)To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a)to eliminate risks to health and safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a)the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e)the cost of eliminating or reducing the hazard or risk.”
19 The offence created by s.23 of the Act, does not extend to employees of the employer charged with the offence. The term “employee” is defined in s.5(1) of the Act to mean:
"…a person employed under a contract of employment or contract of training.."
20 The term “employer” is defined in s.5(1) of the Act to mean:
“A person who employs one or more other persons under contracts of employment or contracts and right of training.”
21 I refer again to s.21(3) of the Act, and note that for the purposes of s.21(1) and s.21(2) of the Act, a reference to employee not only includes those who are, if
I may call it “directly” employed by the employer, but also refers to an independent contractor engaged by the employer and any employees of the independent contractor.
22 However, s.21(3) of the Act only has operation in relation to ss.(1) and
ss.(2) of s.21 and has no application to s.23 of the Act. Accordingly, the reference in sub-s.1 of s.23 of the Act to, “persons other than employees of the employer” would extend to all persons, other than those persons employed under a contract of employment or a contract of training with the accused, Downer.
23 The wording of the general safety duty, as set out in s.21(1) of the Act is unchanged to that contained in the 1985 Act, except for the addition of the word “reasonably”, with the qualifying phrase now reading, “so far as is reasonably practicable”. I refer to the Court of Appeal decision of Director of Public Prosecutions v Amcor Packaging Australia Proprietary Limited, (trading as Amcor Fibre Packaging Australasia),[9] wherein the Court of Appeal (consisting of Vincent; Eames and Nettle JJA) described, in part, the breadth of the 1958 Act in the following terms:
“Section 21 of the Occupational Health and Safety Act 1958 is directed to ensuring that employees are not subject to unnecessary risks to health in their working environment. Responsibility to take reasonable measures to prevent such exposure has been placed squarely on their employers. It must not be forgotten in this context that the risk to the employer is essentially economic, whilst those to which the worker is exposed, directly concern their physical or mental wellbeing or, as in this case, life. As Harper J stated in Holmes v R E Spence:
"The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them, not with the benefit of hindsight, or with the wisdom of Solomon, but nevertheless, remembering that one of the chief responsibilities of all employers is the safety of those who work for them. Remembering also that, in the main, such a responsibility can only be discharged by taking an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality.’”[10]
[9][2005] VSCA 219
[10]See Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 at 123, approved by the Court in R v Australian Char Pty Ltd [1999] 3 VR 834 at 847 per Phillips CJ, Smith and Ashley JJ
24 I also refer to the later Court of Appeal decision of R v Commercial Industrial Construction Group Proprietary Limited,[11] wherein the Court of Appeal (consisting of Maxwell P, Buchanan and Redlich JJA), again endorsing the comments of Harper J in Holmes v R E Spence & Co Proprietary Limited,[12] also stated:
“As this case illustrates, the formal adoption of a satisfactory safety management system will not have the beneficial effects intended, unless it is accompanied by the employer’s active implementation of the system in the workplace.[13] The employer’s duty will not be discharged simply by creating a safe system of work. The obligation requires the employer to ensure ‘that procedures and instructions are actively and positively complied with by employees’.[14] Not only must employees be appropriately trained, but there must be ongoing supervision and compliance audits to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer.
An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste, through foolish disregard of personal safety,[15] to deliberate non-compliance with the prescribed safe system of work."[16]
[11](2006) 14 VR 321
[12](Op. cit.)
[13]Reference was made to WorkCover Authority of New South Wales v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at paragraph [35] per Walton J; Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 at paragraph [199]
[14]Reference was made to Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIRComm 16 at paragraph [117]; WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 257 per Walton J
[15]Reference was again made to Inspector Dieter Franke v Vin Heffernan Pty Ltd (op. cit.) at paragraph [117]
[16]See R v Commercial Industrial Construction Group Pty Ltd (op. cit.) at paragraphs [48]-[49]
25 The offences created by the Act (and indeed the offences created by the 1985 Act) are “risk-based, not outcome-based offences”. In Dotmar Epp Proprietary Limited v Ri,[17] Priest JA, in the Court of Appeal, stated, at paragraph [22]:
“With respect, the fallacy inherent in that approach lies in the assumption that the seriousness of the offence under the OHSA is necessarily to be gauged by whether death or injury has been caused (or, for that matter, by whether there is an absence of death or injury). Such an approach equates the gravity of the consequences of a breach, that is, whether the breach resulted in death or injury, or neither death nor injury, with the gravity or seriousness of 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." (Footnotes omitted and Emphasis added.)
[17][2015] VSCA 241
26 Again I refer to the relatively recent Court of Appeal decision of Director of Public Prosecutions (Vic) v Vibro-Pile (Aust) Proprietary Limited,[18] wherein the Court of Appeal (consisting of Maxwell P, Redlich and Whelan JJ.A) stated, at paragraph [3ff]:
“[3]Axiomatically, proof of a breach of the OHSA does not require proof that the breach caused actual harm to any person.[19] The offences created by the Act (and by its 1985 predecessor)[20] are risk-based, not outcome-based offences. The breach consists in the employer’s failure to eliminate or reduce a risk to employee safety. The occurrence of death or injury is of evidentiary significance only. It is not an element of the offence.
…
[5]"Crucially, the prosecution does not need to prove that the employer’s breach ‘caused’ the accident, or that the taking of particular safety measures would have changed the course of events on the day in question. Put another way, the prosecution does not need to establish that the defendant employer should have anticipated the risk of events unfolding precisely as they did on the day of the fatal accident.”
[18][2016] VSCA 55
[19]Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 553 [13] (‘Kirk’).
[20]Occupational Health and Safety Act 1985 (‘the 1985 Act’)
27 Finally, on this area, I also refer to the Court of Appeal decision of Director of Public Prosecutions v Frewstal,[21] wherein the Court of Appeal (again consisting of Maxwell P, Priest and Kaye JJA) stated, at paragraph [126ff], that:
[21](2015) VR 660
“An important question arose in this appeal concerning the effect on penalty if death or serious injury has resulted from the relevant breach of the OHSA. Given that this is so, it is necessary that we make some further observations as to sentencing in cases such as the present. In so doing, we are not unmindful of the fact that Chad Lynch’s death has had
a significant impact on those close to him. His widow, Greta Boyd, and his mother, Nola Hinch, both described the devastating effect upon the and their family of Mr Lynch’s injuries and death. In cases such as the present, it is natural that the family members and friends of the person who has lost his or her life, will focus primarily on the fact of death. So much is only a natural human response. It is therefore important that the court endeavour to make clear the manner in which the legal principle dictates that sentencing must be approached in a case of this kind.
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 this 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.”[22]
[22]Reference was made to Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 at 650
28 I also note that members of the family of the late Harry Zagaretos were present during the course of the trial. I echo the words of the Court of Appeal that it is only a natural response to focus primarily on the death of a loved one. Hopefully, throughout the course of the trial hearing, in which comments were made as to the approach that must be taken, it became clear that legal principle requires that the offences created by the legislation are concerned with risk, rather than outcome.
The plea material
29 Each party tendered a number of documents during the course of the plea hearing. Those acting for the prosecution tendered the following material:
(a)Prosecution outline of submissions on plea (“Exhibit 1”);
(b)Victim impact statements of Nora Marshall, (the partner of Zagaretos) declared on or about 18 June (“Exhibit 2”). Ms Marshall initially read her statement in open court;
(c)Victim impact statement of Dimitrios Jim Zagaretos, (the brother of Zagaretos) (“Exhibit 3”). Senior Counsel for the prosecution read such statement to the court;
(d)Victim impact statement of Ketena Zagaretos, (the mother of Harry Zagaretos) (“Exhibit 4”). Senior Counsel for the prosecution read such statement to the court.
(e)Criminal record of Downer, as at 23 January 2017 (“Exhibit 5”).
30 The victim impact statements were tendered without objection.
31 As is made clear by the authorities referred to earlier in these reasons, the offences created by the Act are “risk-based, not outcome-based offences”. It is not necessary for the prosecution to prove under s.21 or s.23 that a breach of the Act caused the death or injury of any particular worker. Issues potentially arise as to whether or not any of those who seek to rely on victim impact statements are a “victim” of an offence which does not require a finding that the offending caused injury or death.
32 This issue was referred to in Director of Public Prosecutions v Vibro-Pile (Aust) Proprietary Limited,[23] wherein the Court of Appeal, (consisting of Maxwell P, Redlich and Whelan JJA), stated at paragraph [195ff] :
[23][2016] VSCA 55
“In our view, the Director’s submission must be accepted. The provisions of the Sentencing Act 1991 are quite clear. 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 (s 21 and s 22) or to others (s 23).
The obvious difficulty in sentencing for OHSA breaches is the one discussed earlier, namely, that proof of a breach of the Act does not require proof that the breach led to injury or death. For that reason, as we have explained, there is no need to explore that question of causation in the course of a trial. And, in the absence of relevant evidence of that kind, it may simply not be possible for the Court — following conviction — to reach any conclusion about what the ‘direct result’ of the offending was.
In the present case, however, that question of causation was exhaustively investigated in the course of the trial, and his Honour was well able to make findings about what happened as a consequence of the defendants’ breaches. Indeed, as already noted, his Honour made specific findings about WT’s state of mind at the time he directed that the rear bolts did not need to be inserted.
While his Honour was correct that the gravity of the offending did not depend on whether death had been caused, it was nevertheless a relevant sentencing factor. The findings which his Honour made about WT’s state of mind were, in substance, findings that the respective breaches did lead, as a direct result, to the death of Mr Swannenbeck.
…
This discussion highlights the complexity of sentencing for occupational health and safety offences. As discussed earlier in these reasons, the question of whether the safety breach caused injury or death is irrelevant to criminal liability. Further, in a case like this, the occurrence of death or injury would not have any bearing on the assessment of the objective gravity of the offence, yet at the same time, it is a matter which must be taken into account in assessing victim impact (assuming the availability of sufficient evidence or, on a plea, a relevant admission). This underlines the importance of prosecutors being properly instructed so that they can explain these distinctions very clearly to the sentencing court." (Citation omitted.)
I will return to this issue when discussing relevant sentencing considerations. I refer briefly to the contents of each of the statements:
(a)Nora Marshall, the partner of Harry Zagaretos, described him as someone who was “strong, committed, cheeky and unique”. He was
a hard worker and plans had been made for their future, including holidays and ultimately being married. In particular, she describes life without “Harry” as a struggle, with the loss of his love and protection. In particular, she describes how her son was only four when the relationship between her and Harry commenced and how her son adored him. Her son, who is now 25, is “profoundly damaged” as a result of the death of “Harry”. Furthermore, she describes how she cannot sleep, cannot work, does not see anyone or go anywhere and that “without Harry”, she does not care anymore;
(b)Ketena Zagaretos, the mother of Harry, describes her life “stopping” after hearing news of his death. In a very poignant way, she describes how her heart “aches all day long, from the time I wake up, to the time I go to sleep” and that a day does not go by without her crying, missing him at every moment of her waking life. In particular, she describes how she visits the gravesite of Harry every day, sitting alone for hours, wondering why her son is there and not out in the world enjoying himself. What was her love for Harry has now turned into this “hurt, anger and depression” and she does not have the will inside to enjoy any part of her life;
(c)Dimitrios Jim Zagaretos, the brother of “Harry”, describes how he had
a very close bond with his brother and from the night of his death, feels as though his life has “stopped”, in the sense of something “missing and broken inside of me that cannot be fixed to work properly”. In particular, he describes socially withdrawing from friends and attending celebrations, such as festive days, Christmas and Easter, are not enjoyable, but now sorrowful. In particular he describes how over the last couple of years, he has difficulty working on some occasions and his work output has dropped dramatically. Furthermore, following Harry’s death, he had to increase his mortgage by $25,000 to pay for memorial services at church and at home.
33 Exhibit 5 is the criminal record of Downer, which consists of the following:
(a) On 11 October 2007, at the Magistrates’ Court of South Australia (Industrial Offences Jurisdiction), Downer was convicted and fined $48,000, plus costs for failing to ensure that the employee was, whilst at work, safe from injury and risk to harm, contrary to s.19(1) of the Occupational Health Safety and Welfare Act 1986)(presumably the South Australian Act).
(b)On 6 November 2008, at the Wodonga Magistrates’ Court, Downer was:
(i)Convicted and fined $60,000 for failing to provide and maintain
a safe working environment, plant and systems of work, contrary to ss.21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004;
(ii)Secondly, convicted and fined $4,500 for failing to notify the authority immediately after becoming aware of an incident at the workplace, contrary to ss.38(1) and 38(5) of the Occupational Health and Safety Act 2004;
(c)On 13 August 2010, at the Cairns Industrial Magistrates’ Court, without conviction, fined $40,000 for failing to ensure the workplace health and safety of each of the employer’s workers at work contrary to s.28 of the Workplace Health and Safety Act 1995 (presumably the Queensland Act).
34 Downer tendered the following plea material:
(a) A brief outline of submissions on plea (“Exhibit D”); and
(b) Remedial measures folders (two of those) (“Exhibit E”).
35 VicRoads tendered the following plea material:
(a)Outline of submissions - VicRoads (“Exhibit A”);
(b)Folder of plea material, together with summary of plea material
(“Exhibit “B”);
(c)Contract No.8212 between VicRoads and Downer (“Exhibit “C””).
36 Each party spoke to their respective submissions during the course of the plea.[24]
[24]See Plea Transcript (“PT”) in relation to the plea on 26 and 27 June 2017
Details of the accused
37 It is appropriate to have some understanding of the history, nature and powers of VicRoads. Roads Corporation (ABN 61 760 960 480) trading as VicRoads, is a Victorian statutory authority that was established under the Transport Act 1983 and continues under the Transport Integration Act 2010.
38 The Roads Corporation was created following the merger of the Road Construction Authority and Road Traffic Authority, under the Transport (Amendment) Act 1989, with effect from 1 July 1989. Those authorities were created under the Transport Act 1983, which abolished the earlier Country Roads Board, that had been in existence since 1939 (having been formed under the Country Roads Act 1912). The Road Construction Authority was the direct successor to the Country Roads Board under the Transport Act 1983.
39 Section 86(1) of the Transport Integration Act 2010 describes VicRoads’ primary object to be:
(1)"The primary object of the Roads Corporation is to provide, operate and maintain the road system, consistent with the vision statement and the transport system objectives.”
40 The VicRoads’ functions are set out in s.87(1) of the Transport Integration Act 2010 and consist of the following:
(a)"Construct, maintain or vary roads, rail infrastructure and other transport assets;
(b) Provide and maintain roadsides;
(c)Support the lead transport agency to plan for the road system as part of an integrated transport system, including by the development of feasibility studies under the lead transport agency's planning framework;
(d)Support the development of strategies in respect of policies and plans to improve the safety of the road system for all users;
(e)Develop and implement operational policies to improve the safety of the road system for all road users, including through:
(i)Works to improve the safety of road and road-related infrastructure;
(ii)Information and advice on the safety of motor vehicles and motor vehicle standards;
(iii)Education and training to improve the safety of road user behaviour;
(iv) Enforcement activities;
(f)Develop and implement operational policies and plans, including through legislation, regulations, standards, guidelines and practices, for the road system and related matters under the lead transport agency's planning framework;
(g)Operate the road system by managing access and controlling use, including by:
(i) Installing, operating and maintaining road and road-related infrastructure such as signals, signage, line markings, intelligent transport systems and other road management systems;
(ii) Implementing road space allocation measures to give priority to particular modes of transport at certain times on specified roads or parts of roads;
(iii)Managing road works and incidents and events on roads in a manner which minimises disruption to the road system;
(iv)Implementing an appropriate enforcement strategy;
(h)Provide registration, licensing and accreditation services for the transport system and related matters;
(i)Provide technical, project management, consultancy and information services related to the transport system, including on a commercial basis consistent with government policy;
(j)Provide advice to the Secretary, the Department and the lead transport agency to assist in the development of strategic policy and legislation relating to the transport system and related matters;
(k)Support the lead transport agency to protect future options for the improvement of the transport system including reserving land for future transport corridors;
(l)Support the development of, and with the approval of the lead transport agency, develop and implement, effective environmental policies, strategies and management systems under the lead transport agency's planning framework to support a sustainable transport system, including minimising any adverse environmental impacts from the road system;
(m)Provide and disseminate information to Victorians about the road system and related matters, including on a commercial basis consistent with government policy;
(n)Facilitate the establishment, management and operation of an integrated transport service centre as directed by the lead transport agency;
(o)Perform any other functions or duties conferred on the Roads Corporation under a Transport Restructuring Order or by or under this Act or any other Act or regulations under this Act or any other Act.”
41 I was informed by Counsel for VicRoads that it is responsible for maintaining 23,000 kilometres of road across Victoria and managing road infrastructure and other assets to the value of $47.5 billion. Any revenue received is applied to the statutory functions set out above. In the VicRoads’ Annual Report 2015/2016, VicRoads reported employing approximately 2,475 employees throughout Victoria in that year.
42 Counsel for VicRoads submitted that, in order to carry out its road construction and maintenance obligations, VicRoads is required to contract out the majority of such work, in particular, undertakings requiring road construction expertise and capacity. VicRoads maintains a register of pre-qualified contractors or consultants that have demonstrated they possess the necessary expertise, management systems and financial capacity to undertake particular categories of works for services for VicRoads.[25] Only pre-qualified contractors and consultants are eligible to tender for the supply of works and services covered by those particular pre-qualification categories.
[25]See tabs 3 and 4 of exhibit B
43 It was submitted that on average, VicRoads awards 130 formal (that is, with
a value of $200,000 and above) contracts for construction-related work annually. In addition to these formal contracts, there are many minor works performed under purchase order arrangements and maintenance contracts, under which ongoing rehabilitation construction work is performed across the road network.
44 Counsel also submitted that all contractors seeking pre-qualification must have established management systems in occupational health and safety, quality, industrial relations and environmental management and that the contractor’s occupational health and safety management system must be audited or certified by appropriately registered auditors or certification companies. Reference was made to Part B of the VicRoads’ application for
pre-qualifications at Tab 4 of Exhibit B.
45 Counsel for VicRoads stressed that as part of the pre-qualification assessment, applicants were assessed against requirements for experience in undertaking relevant work; qualification and experience of company personnel, both management and operational; specific management system requirements (quality, occupational health and safety and environmental management); financial capacity; and reference checks.
46 Such pre-qualification system had been in place for approximately twenty years and certainly existed at the time of the events in 2011. Furthermore, at and around that time, Downer held the required pre-qualification status (referred to as Maintenance and General Works - General (Specialist Work) - Road Surfacing Asphalt GD-RSA)- to undertake the works at the site situated near the intersection of Canterbury Road and Bayswater Road, Bayswater.
47 Leading Counsel for Downer briefly traced the corporate history of Downer back to 1863, when a company referred to as John Walker & Co, came into existence and later, in 1898, Clyde Engineering was established and work was undertaken in New Zealand. In 1911, Evans Deacon Industries, the “EDI” in Downer, was established, followed by Roche Brothers in 1922 and then, in 1933, Downer & Co was established. There was a merger in the 1950s between Downer and William Cable Holdings and then a series of acquisitions which, in 2001, led to a significant merger between Evans Deacon Industries and Downer & Co, after which a number of other businesses were acquired, including Emoleum Industries and in 2014, the significant acquisition of Tenix.
48 Leading Counsel for Downer noted that Downer is one of the largest, if not the largest, non-government owned infrastructure service businesses in Australia and New Zealand and it maintains more than 40,000 kilometres of bitumised road in Australia and more than 32,000 kilometres in New Zealand. Apparently, it services all of Australia’s state road authorities, the New Zealand Transport Agency and the majority of local government councils, authorities in both countries. Downer currently employs 19,000 staff and currently has between 200 and 300 jobs which might include paving jobs, or full road construction, or highway jobs “on the go at any one time”.
49 Leading Counsel for Downer also informed the court that the business of Downer extends beyond road paving profiling and renewing of surfaces. It also involves development of road surface technology, the development of asphalt plants that are more environmentally friendly and development of all pavements of all types, including red bus lanes and various textured surfaces to give warnings to vehicles.
The circumstances of the offending
50 On the evidence, and consistent with the verdicts of the jury, I am satisfied beyond reasonable doubt that the offences, of which Downer has been found guilty, occurred in the following circumstances. I should add that such circumstances cover the offence to which VicRoads has pleaded guilty.
51 On or about 7 September 2011, VicRoads entered into a contract with Downer, Contract No.8212 for asphalt resurfacing of various roads within metro
south/east region - North Sector[26]- which essentially provided for Downer to resurface various roads commencing in or about Warburton and generally moving towards the city.
[26]See excerpts of Contract in the Prosecution Jury Book at tab 10
52 VicRoads retained overall supervision, but the “contractor” -in this case, Downer- was in possession of the worksite when the construction works were being carried out[27] and has direct control over safety on site.[28] The Downer supervisor in charge of the site was, at all relevant times, Mr Laurie Alie (who
I shall refer to as “Alie”).
[27]See clause 161.C(1) of the Contract
[28]See clause 168.02 of the Contract
53 In particular, the Contract provides for:
(a)The contractor to undertake “risk assessments” of each site to determine the risks and treatments required to eliminate, or significantly reduce, as far as reasonably practicable, those risks;
(b)Pursuant to Clause 168.03 of the contract:
(i)Downer is to make the arrangements for ensuring that all persons at the worksite are properly trained and supervised;
(c)Pursuant to Clause 168.04 of the contract, which is headed “Risk/Hazard Assessments”, it is provided that:
“The contractor shall undertake a risk/hazard assessment of each site/work activity to determine the risks and treatments required to eliminate, or significantly reduce, so far as is reasonably practicable, those risks/hazards. The details of the risk/hazard assessment shall be recorded as Safe Work Method Statements, highlighting statements that are for ‘high risk construction work’ and copies are to be submitted to the HSCP [Health and Safety
Co-ordination Plan] to the superintendent. The Safe Work Method Statements and Health and Safety Co-ordination Plans shall be available on site for the duration of the works, to enable audit and surveillance to be conducted.”
(d)Pursuant to Clause 186.06, VicRoads (that is, the Superintendent) will arrange surveillance and audits to ensure that the contractor, Downer, is complying with the Health and Safety Co-ordination Plan.
54 By the night of 29 November 2011, Downer, pursuant to the contract, commenced to resurface a stretch of Canterbury Road near the corner of Bayswater Road, Bayswater. This is best seen, perhaps, by way of an aerial Google map, covering the intersection of Bayswater Road and Canterbury Road and extending to the west along Canterbury Road (towards the city) and slightly to the east (that is, to Ringwood). The eastbound carriageway marked in pink - heading towards Ringwood - was to be the subject of resurfacing on 29 and 30 November 2011.[29]
[29]See Prosecution Jury Book – exhibit 1 during the trial and, in particular, at Tab 5
55 Downer entered into a contract with Statewide Traffic Control Proprietary Limited (which I shall refer to as “Statewide”), which was to provide traffic control on and around the site. The late Zagaretos was employed by Statewide as
a foreman/traffic controller. It was the responsibility of Statewide to draw up plans for the control of traffic when work was being undertaken on any particular site. Reference is made to the document headed “Downer EDI Works,
Contract 8212, Job No. 318, Plan 2”.[30] Plan 2 was the traffic plan in force on
30 November 2011.
[30]See Prosecution Jury Book – exhibit 1 at Tab 1
56 Road surfacing on the night of 30 November 2011 only involved the northern carriageway of Canterbury Road, heading generally in an easterly direction. The southern carriageway of Canterbury Road was unaffected. Plan 2 provided that before any work commenced on the site, traffic control workers would, through a serious of signs, flags and bollards, gradually funnel traffic from three lanes in the northern carriageway, to one lane in the northern extreme of that carriageway. That is best described by the top diagram in Plan 2.
57 The central part of Plan 2 reveals how the live lane of traffic is in the extreme northern lane, with bollards dividing the live lane of traffic and the worksite. Furthermore, the diagram depicts various traffic controllers employed by Statewide, who were required to be in those positions to control the flow of vehicles on and off the worksite.
58 The mid and southernmost lane of the northern carriageway was where the resurfacing was to be done, with some additions at and around the intersection of Bayswater Road and Canterbury Road. Although the whole work site was in the order of 800 metres, it was anticipated that resurfacing would be broken down into three portions, each of approximately 300 metres.
59 The processes involved in resurfacing followed an established routine, consisting of:
(a)The road surface is crunched up by what is called a profiler or, sometimes, a roto-mill. The profiler was about 2.8 metres wide and turns about 40 millimetres from the existing asphalt, in order that the asphalt can be replaced and a new surface obtained. The profiler is driven by one person and moves at about walking pace. It is a very large vehicle on caterpillar tracks. The material taken up from the road surface travels onto a conveyor belt on the profiler, which then tips such material into trucks.[31]
[31]See exhibit “B” (tendered during trial) which depicts a profiler (or a rota mill) depositing material in a truck
There would also be someone walking near the profiler with a remote control to gauge when the profiling is an appropriate depth;
(b)The trucks being loaded up with the profiler rubbish were driven by drivers contracted by Downer and they would enter the worksite by going down the inbound lanes of Canterbury Road, until they found a sufficient area to turn and then come up the outbound lane and pull in front of the profiler. There were four to five trucks and the driver of the profiler would give one blast when he wanted a truck to come back under the belt and two blasts when the truck was full, so in order that there would be
a largely continuous supply of trucks under the profiler conveyor belt;
(c)A bobcat was also required to help clean up the surface and such bobcat was driven by an employee of Downer or a subcontractor and the bobcat picked up what were referred to as the “crumbs”, being the smaller amounts that the larger profiler had not cleaned up. The bobcat would also stay fairly close behind the profiler, scrape up the extra pieces with its bucket, and empty the bucket in front of the profiler, which would then pick up the extra rubbish;
(d)Although the bobcat got the bulk of the rubbish, a sweeper would then sweep up the rest. It was necessary to get all the dust and stones off the site before resurfacing the area. The sweeper would cover a much broader area. They would generally do a run behind the profiler, then they would back up and do another run, which would involve the sweeper reversing along the whole length of the portion of road where the work was being undertaken. Downer had contracted with U-Sweep Proprietary Limited, (“U-Sweep”) to provide a sweeper and the driver was Pollard;[32]
171 MR TOVEY: I can't see that there's any real problem with that, Your Honour.
172 HIS HONOUR: No, look, I will allow a month. In relation to the fines leaded against, or sentenced against Downer and VicRoads, I will order that there be a stay on payment of such amounts for a period of one month.
173 MS COATES: I am instructed that one month would be acceptable to Downer. Two weeks, I'm instructed, is really - - -
174 HIS HONOUR: Pushing it.
175 MS COATES: - - - incredibly difficult.
176 HIS HONOUR: No. All right. I suppose it is a difficult time around Christmas.
177
MS COATES: And that's the difficulty, a stay of a month doesn't really give
a month, because of the absences over Christmas.
178 HIS HONOUR: No, I understand that. No, anyway, you have got two months.
179 MS COATES: Thank you, Your Honour.
180 HIS HONOUR: Yes, anything else to raise with me?
181 MS COATES: No, Your Honour.
182 HIS HONOUR: Yes, again, look, I thank counsel for their very able assistance in this matter. It has no doubt been very trying for everyone and particularly for the members of the family, which I hope this brings some closure to this issue, but time will tell. Yes, thank you, we will adjourn the court sine die.
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