Director of Public Prosecutions v Royal Automobile Club of Victoria
[2021] VCC 2150
•16 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01034
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROYAL AUTOMOBILE CLUB OF VICTORIA (RACV) LTD (ACN 004 060 833) |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2021 | |
DATE OF SENTENCE: | 16 December 2021 | |
CASE MAY BE CITED AS: | DPP v ROYAL AUTOMOBILE CLUB OF VICTORIA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2150 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Jason Gullaci | Office of Public Prosecutions |
| For the Accused | Dr David Neal QC | Sparke Helmore Lawyers |
HER HONOUR:
1Just after 1 am on 10 March 2018, John Halls was killed when the RACV Roadside Assist vehicle that he was driving in the course of his employment, ran off the road and struck a tree. There was no collision with anyone or anything before the vehicle left the road and no sign of braking or swerving before it hit the tree. There were no mechanical defects in the vehicle which might have caused it to run off the road.
2Mr Halls had worked 89 hours of a 96 hour on call shift, and 17 hours straight since his first callout the previous day. He was observed to be visibly tired by the last driver he assisted, when, going above and beyond the call of duty, he took a stranded driver into Healesville rather than leave him on a deserted country road. This combination of circumstances points inexorably to the conclusion he fell asleep at the wheel. Fatigue was the reason his vehicle ran off the road. That resulted in the collision and Mr Halls' death.
3Sleep expert Professor Drew Dawson, Director, University Research Centre and the Engaged Research Chair in Psychology at Central Queensland University Adelaide, having examined the evidence, concluded:
Halls was very likely to have been fatigued at the time of the accident and the level of fatigue and therefore fatigue-related risk. In my opinion, this level of fatigue-related impairment is not consistent with a safe system of work.
While it is likely that Halls' working time arrangement contributed substantially to the level of fatigue experienced, it is also possible Halls' health and medication status may have affected his level of fatigue.
I have little choice but to conclude that the RACV and their sub-contractor, [erroneously described as] Yarra Valley Automotive [rather than Yarra Junction Automotive], failed to provide even the minimal requirements of a safe system of work with respect to fatigue. In my view, this is an especially egregious situation since it is inconceivable in this day and age that RACV managers would have been unaware of the significant hazard posed by fatigue. Indeed, the RACV website has a significant body of literature devoted to the timely identification and management of fatigue-related risk in their customers. To fail to apply the same knowledge and information to their staff is, in my opinion, a gross dereliction of their duty of care.
Professor Phillip Swann, Senior Research Fellow, School of Public Health and Preventative Medicine at Monash University and former Principal Scientist, Driver Impairment and Manager Drugs Alcohol and Fatigue at VicRoads, having also examined the evidence, concluded:
The sleep associated medical prescription medication Moclobemide and medical prescription medication that promotes sleep Zolpidem, were being used by John Halls prior to and at the time of his death in the fatal accident and were a potentially significant fatigue risk factor.
The RACV systems of work do not appropriately recognise the potential fatigue risks associated with the operation of an RACV breakdown assistance vehicle. The RACV Roadside Emergency Assistance drivers are required to undertake potentially hazardous tasks, such as driving a vehicle and work at the roadside servicing a vehicle and in these work situations the risks associated with fatigue are significant. The RACV systems of work do not appear to provide appropriate fatigue risk management information for RACV Roadside Emergency Assistance drivers.
Also, the RACV systems of work do not appear to appropriately monitor the RACV Roadside Emergency Assistance driver's workload, breaks, sleep related health conditions, such as sleep apnoea and insomnia, and their use of sleeping and alerting medications and drugs.
The 21 on-call shifts, which Mr Halls worked in the previous year, have an unusually long on-call shift period of approximately 96 hours with many potential fatigue risk factors. These fatigue risk factors include factors related to:
·quality of the sleep environment when working extended shifts, given the unpredictability of the timing and frequency of the on-call alerts;
·the quantity of sleep opportunity after finishing a job, given the unpredictability of the timing of the on-call alerts;
·the time since last sleep, given the unpredictability of how many consecutive calls will be received at any set period during the extended shift period.
The ways of eliminating or reducing these fatigue hazards include the employer providing Fatigue Risk Management Training and Education at the beginning of employment and at regular intervals updating this information.
These training fatigue risk activities should focus on the risks of fatigue, such as micro sleeps, the personal symptoms of fatigue and the actions that should be done to reduce fatigue, such as the use of caffeine and planning ahead to ensure sufficient restorative sleep is obtained every 24 hours. The fatigue risk management training should also include how to manage fatigue risks before driving at night, information on how to take preventative naps before potentially fatigue risk driving or working and information on how to use recovery naps during on-shift breaks.
Other actions include reducing shift risks by:
·Monitoring job times during on-call shifts to identify when the next job involves both night driving and when the designated driver on-call has had, at that point in time, less than 10 hours break between jobs. When this happens, the employer should provide a back-up alternative driver to take this next on-call job and take any other further jobs until the RACV Roadside Emergency Assist driver has had a 10 hour in-shift break.
·Reducing the alternating four-day plus extended shift times to two days, which still allows two full days for recovery.
·Other actions include regular monitoring of driver sleep related health conditions such as insomnia and sleep apnoea and use of sleeping and alerting medications.
·The employer should also consider these fatigue risk factors when designing shift schedules, selecting and outfitting RACV Roadside Emergency Assist vehicles, selecting employees, and should provide employees with information on their responsibilities to manage their off-work time breaks to ensure they start each on-call work period both fully alert and fit for duty.
The RACV OH&S documents and Operations Manual are inadequate with regard to fatigue risk knowledge. Fatigue is not mentioned as a factor in the documents, although, these documents have information on other risks such as manual handling and vehicle risks. There were no fatigue or risk management documents provided in relation to Yarra Junction Automotive.
4Mr Halls was 66 years old. As was clear from the heartfelt victim impact statements made by his family, some of which were read aloud at the plea hearing, he was living a full and active life and was full of plans for his future. His death has devastated his close-knit family, his wife of over 50 years, his three children, their partners and his grandchildren. The hall where his funeral was held was too small to hold all those who came to pay their respects to him. The crowd spilled into the street. He was given a guard of honour by the local SES, Fire Brigade and police. That is a powerful testament to the regard in which he was held, not just by his family, but in his community, and to his commitment to assisting others.
5That a failure to recognise and manage the risk to life and safety from fatigue in drivers providing roadside assist services, meant measures which could have eliminated or reduced the risk of fatal injuries sustained after falling asleep at the wheel were not in place makes the loss of this community minded, much loved family man, harder for his family to bear. This is the human face of avoidable workplace or work related injury and death.
6Mr Halls was not directly employed by RACV. I was told RACV retained the services of contractors who, by their contract, were required to have sufficient mechanically skilled staff, equipment and vehicles to provide a 24/7 Emergency Roadside Assist service to all RACV members requiring assistance in a specified geographical area. Whatever the legal or contractual arrangements, all ERA drivers providing ERA services to RACV members were required to drive RACV badged vehicles and wear RACV badged clothes. In the eyes of many Victorian drivers, ERA drivers were the public face of the RACV.
7
The RACV contract for the Yarra Junction/Healesville area was with an entity called Yarra Junction Automotive Repairs. That is not a company but is one of a number of trading names or companies operating out of a mechanical workshop in Yarra Junction owned or operated by Dominic Pezzimenti. Just months before Mr Halls died, ownership of Yarra Junction Automotive Repairs Pty Ltd, one of
Mr Pezzimenti’s Yarra Junction entities, apparently was transferred to his granddaughter, Brooke Hampton. Ms Hampton later told investigators that the company took over the contract to provide ERA services on behalf of the RACV in the Yarra Junction/Healesville area. It would appear that whoever actually operated or owned the entity providing ERA services, nothing changed in terms of the day-to-day operations, so far as the drivers employed to actually provide the services were concerned.
8For about 12 months before Mr Halls' death, he and the only other Roadside Assist driver employed by a Yarra Junction entity, were the only two employees providing ERA coverage for the Yarra Junction entities in their specified area. They worked alternate 96 hour straight rosters. That is, four days and nights straight on, followed by four days and nights off. If one of the two employees were sick or took holidays, the other covered for him. Before that, these two ERA drivers had worked a 12 days on, two days off, daytime only shift. Mechanics engaged in other businesses operated by other Yarra Junction entities shared a roster for weekends and night shifts.
9Investigations conducted by WorkCover after Mr Halls' death revealed RACV did not train contractors or their employees in relation to the risks of fatigue. Although there was a general provision in the contract between RACV and Yarra Junction Automotive Repairs in relation to OH&S compliance, there was no specific obligation imposed on contractors by RACV to ensure they had safe systems of work concerning fatigue and its associated risks. RACV did not conduct any checks or audits in relation to training or safe systems of work in relation to the risks of fatigue.
10The materials before me indicate that neither RACV nor the Yarra Junction entities had turned their minds to their respective obligations to protect drivers against the risk of death or injury from driver fatigue. When asked about why RACV, despite its reliance before me on the plea, on its well-publicised involvement in public awareness campaigns about the risks drivers pose to themselves and others from fatigue, had not done so in relation to its own contractors and their employees, the only explanation Dr Neal, senior counsel for RACV, said it could proffer was that it 'missed the issue'. When asked how that could have happened, he used the squeaky wheel analogy. He said there had been no previous fatalities and that RACV had never looked at ERA driver fatigue related risks because the system had worked so well until Mr Halls' death.
11RACV is a large, well established organisation. I was told in the course of the plea it is a not-for-profit mutual organisation. That is, it uses its funds to provide services to members, not to maximise profits. Road safety has been a priority since it was established. The company was founded in 1903, has over two million members and employs over 3,000 people directly. It has been providing ERA services for over 100 years and its ERA service is a large undertaking. It has contracts with 91 regional depots and 350 direct and indirect contractors who provide ERA service and attend approximately 820,000 callouts a year.
12There is nothing to suggest it does not have the resources, whether internally or by seeking external advice, to ensure it is aware of and complies with its OH&S obligations for its employees and contractors. As a result of Mr Halls' death and the shortcomings WorkSafe's investigation revealed, in awareness of and accepting responsibility for identifying the risk of death or injury from driver fatigue and taking steps to eliminate or reduce those risks, so far as practicable, Yarra Junction Automotive Repairs Pty Ltd and RACV were charged with offences under the Occupational Health and Safety Act 2004 (‘the Act’).
13Charges against Yarra Junction Auto are yet to be heard. RACV, having initially and ultimately unsuccessfully sought to persuade WorkSafe to accept an enforceable undertaking under s16(1) of the Act, has now pleaded guilty to one charge of failing to ensure, so far as was reasonably practicable, that persons other than its own employees were not exposed to risks to their health and safety arising from the conduct of its undertaking, specifically the conduct of the ERA service.
14By its guilty plea, RACV admits, as detailed in the particulars:
·there was a risk of serious injury or death in a motor vehicle accident to employees of its contractors who provided ERA services to its members (particulars 6 and 11);
·that risk was from driving while fatigued (particular 6);
·it was reasonably practicable for it to eliminate or reduce that risk to the health and safety of ERA drivers by providing:
a) information to contractors about risks associated with fatigue;
b) training to contractors about how to protect against fatigue;
c) suggested policies or procedures to assist contractors to minimise risks to drivers, who provided the service, driving whilst fatigued (particular 8);
d) providing Toolbox Safety Alerts to contractors about fatigue;
e) having fatigue management processes and communicating them to contractors and having fatigue management procedures and communicating them to contractors were reasonably practicable measures which could have eliminated or reduced the risk of death or serious injury to Mr Halls, and other RACV badged ERA drivers who from driving while fatigued (particular 9).
15
RACV failed to implement these measures and so, on the day of his death,
Mr Halls and other ERA drivers were exposed to those risks to their health and safety.
Objective gravity of offending
16As both Dr Neal, who appeared with Mr O'Neill for RACV, and Mr Gullaci prosecuting, were at pains to point out, the fact that Mr Halls died is not an element of the offence to which RACV has pleaded guilty, nor is it of itself a measure of the seriousness of RACV's conduct in breaching its obligations under s23 of the Act. The charge is one of exposure to risk, or rather, the failure to take reasonably practicable steps to eliminate or reduce the risk to the health and safety of workers. It is not necessary for the risk to materialise for the charge to be established and the gravity of the consequence, that is, whether death or injury resulted and if injury, the seriousness of the injury, is not of itself necessarily a measure of the seriousness of a particular breach. As the Court of Appeal said in DPP v Frewstal[1]:
The fact that a death occurs as a result of a safety breach provides little guidance as to the seriousness of the breach. (Maxwell JA)
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 Occupational Health & Safety Act, not according to the result or consequences of the breach. (Priest and Kaye JJA)
[1] [2015] VSCA 266.
17However, as both counsel acknowledged, the fact that the failure to take reasonably practicable measures to eliminate or reduce the risk is exposed by the materialisation of the risk, which resulted in the death of a worker, is not irrelevant.
18In Frewstal, the court put it in these terms:
A very serious breach of the Occupational Health & Safety Act, involving clear disregard of the safety of workers, might result in only a minor injury or no injury at all, if the breach were detected before an accident occurred. Conversely, a relatively minor breach can result in a death, in circumstances which could not reasonably have been anticipated. In both cases, the touchstone for sentencing is the gravity of the breach of the Occupational Health & Safety Act, not the gravity of the consequence. (Maxwell JA)
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. (Priest and Kaye JJA)
19In assessing the gravity of the breach, Frewstal provides this assistance:
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.
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.
20These are then the guiding principles for me.
21The prosecution submitted this was a serious breach of the Act, that RACV departed significantly and substantially from its statutory duty to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of their undertaking. The provision of Emergency Roadside Assist services is a significant part of RACV's business. No steps were taken to guard against fatigued drivers, despite the well-known and well documented risks of death or serious injury resulting from driving whilst fatigued.
22The seriousness of the breach, Mr Gullaci submitted, was added to by knowledge RACV had and the role that it had assumed to educate drivers about the risks of driving whilst fatigued. The seriousness of the breach is further compounded, he submitted, by the size of RACV's ERA undertaking and its state-wide operation. Although materialisation of the risk is not an element of the offence, the fact that the risk did materialise here and result in death, Mr Gullaci submitted, was a further measure of the seriousness of this particular breach.
23The defence on the other hand, submitted RACV's culpability could not be assessed as high. Its written submissions put it in these terms:
While the plea accepts that the measures alleged would contribute to safety, that should be seen against mass road safety campaigns on the theme that 'Drowsy Drivers Die'. That message has been well and truly provided to all drivers for many decades. It is reinforced for those involved in long-distance truck driving by logbooks, mandatory rest breaks and rest periods between shifts. On the other hand, the emergence of on-call driving for delivery of goods or services, where the driving may be done by personnel as an add-on to other employment and be provided by third-party businesses, presents new and different regulatory and safety issues. Although fatigue is a well-known risk generally, there is a gap in the research and literature, and a consequential lack of guidance material, on the management of driver-related fatigue.
24This submission, in my view, does not address the assessment of the gravity of RACV's conduct for the following reasons.
25First, in assessing the gravity of the breach, the question is not whether the measures would contribute to safety. As the passages from Fewstall quoted above reveal, the gravity of the breach is assessed by reference to the extent to which the defendant departed from its statutory duty and the extent of the risk that death or serious injury might result from the breach. That latter consideration, in turn requires a consideration of the likelihood people's safety will be endangered by a breach and the potential gravity, in particular whether there is a risk of death or serious injury, flowing from the breach.
26Second, consideration must be directed to the extent of RACV's departure from its statutory duty and the extent of the risk of death or serious injury that might result from the breach, not to the conduct of others. It follows that the question of what responsibility individual drivers or contractors have to protect against the risk of driver fatigue is separate from what responsibility RACV has under the Act to take reasonably practicable measures to eliminate or reduce the risk of death or injury resulting from driver fatigue in the provision of its ERA undertaking. For the same reason, the role of public awareness campaigns about driver fatigue or regulatory controls to manage fatigue in long haul truck drivers are irrelevant to the assessment of the gravity of RACV's breach of its statutory responsibility.
27Third, given that I was told that RACV has always used contractors to provide appropriately qualified personnel to provide its 24/7 ERA service, on call driving services are not a novel phenomenon for the RACV. As its submission on this point expressly acknowledges, fatigue is a well-known risk generally. The gig economy may present new and different regulatory and safety issues in other areas of service provision by on call drivers, but RACV has always run its undertaking this way. RACV cannot call in aid the fact other sectors of the economy embracing on call driver services may be confronting the fatigue related risk and safety issues associated with contractors providing on-call drivers for the first time. RACV is well aware of the risks associated with driver fatigue and has for many years operated a business model which required ERA drivers to be available at all hours, on-call.
28Fourth, that there is limited research or guidance on the management of driver fatigue matters little when, as RACV emphasised in its own submissions, driver fatigue is a well-known risk. In its own submissions, RACV referred to the regulatory regime governing long distance truck driving. The measures it referred to include limits on the number of consecutive hours a driver can be behind the wheel, a cap on the number of hours a driver can drive in 24 hours, and mandatory rest breaks. More detailed research may assist in managing the risk, but the risk of driver fatigue and the risks associated with long working hours without adequate breaks is public domain information known to, or capable of being ascertained, by RACV and included in its provision of information, training and recommended policies to its contractors.
29The more fatigue is a known risk, the greater is RACV's culpability for its failure to consider and take what it now acknowledges, are reasonably practicable measures to eliminate or reduce the risk to drivers employed by contractors to provide RACV's ERA undertaking. Similarly, the more fatigue is a known risk, the greater is RACV's culpability in relying on the absence of past fatigue related fatalities to justify its inaction. The obligation to eliminate or reduce a known risk of death or serious injury is not discharged by reacting only when that known risk materialises.
30Applying the principles in Frewstal extracted above, I am satisfied that this is a serious breach of RACV's statutory duty to eliminate or reduce the risk of fatigue in drivers employed by its contractors to provide its ERA service. The risk of driver fatigue, as RACV emphasised in the plea, is a well-known risk and one which it has taken a lead role in educating the community about. That it knew driving while fatigued presented a risk of death or serious injury is demonstrated by its reliance on the plea campaigns such as 'drowsy drivers die'. That it failed to take reasonably practicable measures to eliminate or reduce that risk, is acknowledged by the plea.
31That it failed, despite its own lead role in promoting awareness of the risk and the measures to be taken to eliminate or reduce it, to do so in its own undertaking, that is, in respect of the ERA service it provides through its 350 contractors to its members, adds to the seriousness of the breach. And that it failed to take those reasonably practicable measures because it did not even turn its mind to the risks to the drivers who, through its contractors, provided its own ERA service, makes this, in my view, an even more serious breach.
32It would it appear, from the responses to the questions I asked in the course of the plea, that RACV did not have any processes in place to pro-actively review its policies and procedures to ensure it complied with its OH&S obligations in respect of driver fatigue. It is clearly inadequate to trust, as it appeared from what I was told in the plea, RACV did, that the absence of death or serious injury to a person providing ERA services for it was sufficient assurance, that it was not in breach of its OH&S obligations in respect of driver fatigue. That too adds to the gravity of the breach.
33When considering the extent of the risk of death or serious injury which might result from the breach, it is clear, as RACV's own reliance in the course of the plea on the 'drowsy drivers die' campaign, that there is a real and appreciable risk that driving whilst fatigued risks death or serious injury. RACV's culpability is measured by reference to the failures it acknowledged on the plea; that is, to take reasonable and practicable steps to inform and train, in respect of the risk of death or serious injury from driver fatigue, and to suggest policies and procedures to eliminate or reduce that risk.
34There is no satisfactory answer for the failure, in my view. Whether it can be classified as blissful ignorance, as Mr Gullaci said, or a case of being lulled into a false sense of security because there had been no previous fatalities, as Dr Neal contended, the failure, given RACV's knowledge and involvement in road safety campaigns about the risks of driving whilst fatigued, is simply inexcusable.
35RACV submitted that its breach could not be seen to be causative of the incident in the sense that there is no evidence that had RACV provided the information, training and suggested procedures in relation to driver fatigue, that Yarra Junction Auto would have rostered Mr Halls differently, or that he would not have driven whilst fatigued that night, or that the collision would not have occurred. In its written outline, it submitted the direct cause of Mr Halls' fatigue was the rostering system and Yarra Junction Auto was the party responsible for that.
36Dr Neal also relied on the fact that Mr Halls and his co-worker were the ones who had suggested the 96 hour on 96 hour off roster to suit their convenience, in supporting his submission that the failures of others, not RACV, were responsible for Mr Halls' death. This misses the point, in my view. Had RACV taken the measures it acknowledges by the plea it should have, the roster may not have been proposed by Mr Halls and his co-worker or accepted by Yarra Junction Auto. It is unproductive to speculate either way as to what might have happened had RACV not failed in its duty to inform, train and make suggestions. That Yarra Junction Auto may also bear responsibility for OH&S failures does not absolve RACV of responsibility for its own failures.
37In oral submissions, it was put that Mr Halls bore some responsibility, not only by reason of his part in proposing the roster, but also because he was visibly fatigued on the night. Toxicology after his death show that there was Stilnox in his system and, therefore, he should not have been driving, and also, that there was availability of a backup or relief driver were he fatigued.
38Seeking to divert blame onto Mr Halls is unproductive. It is pointless to speculate as to whether he would or would not have proposed the roster, driven whilst fatigued, taken Stilnox during his shift or called a backup driver, had RACV provided the information, training and recommendations it acknowledges it should have. Similarly, it is pointless to speculate as to whether the availability of a backup or relief driver was a real option or a promise honoured in the breach as the evidence of a co-worker seemed to indicate.
39None of these matters, even if made out, absolve RACV of its responsibility for its breaches of its responsibilities under the Act. None of these submissions sit comfortably with the expressions of acceptance of responsibility, remorse, and regret.
40I am satisfied that the failure to inform, train and recommend created an appreciable risk that drivers working such a roster would be fatigued and their safety would, as a result, be endangered. I am also satisfied that the risk of endangerment was grave; that is, that there was a risk such as that which materialised here, namely, death. I am satisfied, therefore, that this is a serious breach of RACV's obligations under the Act.
Applicable sentencing principles
41The maximum penalty for this offence prescribed by Parliament is 9000 penalty units which, translated into the dollar terms applicable at the time of the breach, is a $1,427,130 fine. That is one measure of the seriousness with which the offence is regarded. Whilst each case must be assessed by reference to its own facts and circumstances, the maximum fine available is a yardstick which provides some guidance as to where, in any individual case, it sits on the continuum.
42General deterrence is of considerable importance in cases of OH&S breaches. Where, as here, the consequence of a breach is a real risk of death or serious injury, general deterrence is of particular importance. As the Court of Appeal emphasised in DPP v Vibro Pile (Aust) Pty Ltd,[2] the penalty must draw attention to the importance of workplace safety and send a message to employers, as RACV was in respect of Mr Halls for the purposes of the OH&S breach, that failure to eliminate or mitigate safety risks will attract significant punishment. On the other hand, as the New South Wales Court of Appeal said in Warman International Ltd v WorkCover Authority of New South Wales [3]:
The level of penalty must, on the one hand, compel attention to the occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high.
[2] [2016] VSCA 55 at [233].
[3] (1998) 80 IR 326 at 339.
43Having regard to the findings I have made as to the gravity of the offending and RACV's culpability, general deterrence, denunciation and just punishment all loom large in the sentencing mix and I take as guidance the references to the authorities that I have just detailed.
44Turning, then, to the matters relied on in mitigation. RACV can rightly call in aid in determining the appropriate sentence, and reducing the penalty otherwise appropriate for such a breach, its guilty plea, its absence of prior convictions and history of community engagement and support. It is also entitled to have taken into account in mitigation the steps it has taken to discharge its responsibility to eliminate or reduce the risk of driver fatigue in its ERA drivers since this tragedy occurred.
45
RACV has pleaded guilty to the charge. The sentence should, I accept, be less severe than the sentence otherwise appropriate had it pleaded not guilty and been convicted after trial. The guilty plea has significant utilitarian value and advances the interests of justice. The complex factual circumstances canvassed during the plea provide ample support for the conclusion that a trial would have likely been long and factually and legally complex. It would have prolonged the time Mr Halls' family had to wait for the charge to be resolved. There was a real prospect
Mr Halls' wife Glenys would have had to give evidence at trial about the real,
day-to-day impact on Mr Halls of the 96 hour roster, of whether the paper promises of backup or relief assistance had any practical utility and of the signs of fatigue on the night he left and did not come home. She has been spared that ordeal. Those matters carry significant weight in this case.
46The guilty plea must also carry additional COVID related weight. Not only for its impact on reducing or not adding to the backlog in the court, but in the added stressors, risks, costs and trial times flowing from conducting trials under COVID conditions. I do not accept, however, that it was a plea entered at the first reasonable opportunity. I consider the plea was offered only after RACV had been unsuccessful in what I was told were protracted negotiations directed to urging WorkSafe to withdraw the charge and accept an enforceable undertaking instead. According to the chronology filed by the defence, the charge was laid in February 2020. Six months later, in August 2020, RACV initiated discussions with WorkSafe about an enforceable undertaking. The protracted negotiations to which Dr Neal referred, did not conclude until May 2021. RACV, then indicating its intention to plead guilty, applied unsuccessfully for the matter to be dealt with summarily. The court rejected that application and it was committed for plea to this court later in May.
47Insofar as a guilty plea indicates acceptance of responsibility and so is evidence of remorse, I accept the plea is evidence of remorse, which also adds to the weight to be given to the guilty plea. I take into account also that, in the over 100 years of its operations, RACV has never previously been convicted of any workplace safety related breaches. That is a matter of considerable weight, although, having regard to its explanation for its failure to appreciate the risk of or its responsibility for avoiding ERA driver fatigue, namely, there had been no previous incidents of fatalities from driver fatigue, so no consideration had been given to whether there was a risk which it had a responsibility to eliminate or reduce, that must be tempered by an acknowledgement that there was an element of good luck, not good management, at least in respect of its failure here.
48I have already referred to the fact that RACV is a not-for-profit mutual organisation. Its reason for existence was, I was told, to deliver benefits to its members and their communities by:
'Informing and advising them, representing members' interests and providing them with assistance when in need by delivering products and services in its fields of motoring, mobility, leisure, insurance, financial services, social
well-being and the home.'49I was told RACV's purpose is to deliver maximum value and benefits to its members and the broader community rather than seeking to maximise profits. It has a long record of contribution to, and support of, the broader community through partnership programs, research funding and contributions to grassroots community organisations. Illustrative of that is its 2020-21 contributions of over $5m for causes including suicide prevention services and material aid for people affected by bushfires and COVID-19 lockdowns, solar and battery powered energy relief to bushfire affected communities, a range of specialist support services for disadvantaged and marginalised communities including people from Aboriginal, cultural and linguistically diverse community, and LGBTQI+ communities, other groups facing disadvantage such as victims of family violence and refugee and asylum seeker families.
50I accept RACV's failure in this case must be seen, not only against its absence of previous criminal history for work safety related offences and generally, but its long history of good corporate citizenship.
I take into account also the comprehensive nature of the steps I was told have been taken since the appreciation, following
Mr Halls' death, that RACV had failed in its responsibility to take reasonably practicable steps to eliminate or reduce the risk to the safety of ERA drivers from fatigue. Those steps include:
· Implementing a fatigue management policy and fatigue management procedures for all areas of the business, including ERA providers, ensuring that a specific fatigue management procedure was communicated to and enforced in relation to RACV's regional ERA contractors.
· Developing and implementing processes to enable patrols from neighbouring areas or a taxi to be despatched when a regional service provider is unable to attend a job.
· Developing and implementing an electronic declaration by ERA drivers, declaring that they are fit for work prior to accepting any jobs between the hours of 11.00 pm and 6.00 am.
· Developing and implementing fatigue management training for metropolitan and regional ERA drivers.
· Creating and distributing a fatigue awareness video to metropolitan and regional contractors.
· Enhancing the regional contractor auditing process, with a focus on fatigue management.
· Forming a working group between RACV and associated roadside assistance providers. The working group meets on a monthly basis to review the management of safety risks across all businesses.
· Developing and implementing a declaration form for contractors and managers, declaring that all training has been provided, including a system whereby contractors are not able to log on until training is completed.
· Developing and implementing the roll out of telemetry services in ERA vehicles. RACV is working to fit all 321 ERA vehicles owned by RACV and its contractors, such as Yarra Junction Auto, with telemetry devices that record unsafe driving situations, including excessive travel time without a break. To date, RACV has fitted approximately 20 vehicles, as it is currently trialling the effectiveness and suitability of the devices before rolling the devices out to its entire fleet of vehicles. Following this trial, RACV intends to fit the remaining ERA vehicles with the devices.
· Producing monthly reports regarding the data from the telemetry devices to provide management with visibility and information regarding driver behaviours, allowing unsafe behaviours to be addressed in a timely manner and establishing fleet benchmarks promoting safe driving behaviour.
51This is an impressive list of changes. Whilst, on the one hand, it shows a genuine commitment to promptly identify and implement reasonably practicable steps to eliminate or reduce the risk of death or serious injury resulting from ERA driver fatigue and, therefore, must be properly credited in assessing appropriate sentence, I cannot help but note also that it poignantly shows what could and should have been part of RACV's processes before this tragedy.
52I was told RACV had invested approximately $3.5m over the past three financial years to dedicated occupational health and safety personnel, outside consultants, equipment, technology and other initiatives. On inquiry, it turned out that most of that was its annual or recurrent spend on OH&S costs, not specifically related to or responsive to its breach. When the $2.39m spent directly on employed OH&S personnel and the $663,561 on external safety expertise and consultants as part of general operations is removed, that left just under half a million dollars committed to an Australian Automobile Association road safety project on reducing the road toll which I was told that, at RACV's urging, would have, as its first focus, fatigued driving; that break down of its budget spend, apart from implementing these measures, related to OH&S. It does show, of course, a commitment to OH&S generally.
53Dr Neal submitted that little weight needed to be given to specific deterrence, as the measures that have been taken by RACV and which I have just outlined, demonstrate not only the significant actions implemented following Mr Halls' death, but an ongoing commitment to health and safety. I accept that submission, although, I remain troubled by the absence of evidence, despite my inquiries, of any steps taken to acknowledge or identify the failure in systems and processes that led RACV not to appreciate in the first place that there was a risk to the health and safety of ERA drivers for which it was responsible to take steps to eliminate or reduce, until this fatality.
54Dr Neal submitted that the weight to be given to general deterrence should be significantly tempered by the nature of the offender, given that, as a non-profit, any fine will be subtracted from the funds available to be spent on providing member and community services. Fine questions about the weight to be given to general deterrence in assessing the quantum of a fine for a significant OH&S breach, may well be a relevant consideration when dealing with a volunteer, under resourced community based organisation which derives its funds from grants and donations and is dedicated to providing services to the marginalised and disadvantaged.
55Without devaluing RACV's community contribution or detracting in any way from what I have already said about the weight to be given to its record as a good corporate citizen, RACV's core function is to deliver benefits to its members by delivering products and services. As a not-for-profit, its purpose was described to me as delivering maximum value and benefits to its members and the broader community, rather than seeking to maximise profits.
56It is a large commercial enterprise. I noted earlier at its size; over 3,000 direct employees, 820,000 callouts a year, over two million members, contracts with 91 regional depots and 350 direct and indirect contractors providing ERA services.
57There is something repugnant about a submission that the weight to be given to general deterrence should be reduced, because a fine will reduce the funds available to member services or community contributions. It should go without saying that the provision of services to members and of contribution to the broader community, can never be at the expense of safety of those workers of an enterprise such as RACV employs, or for whom it has a responsibility through the contractor system by which it provides the ERA services to its members. A fine for such a breach should not be reduced because it might detract from member services or other charitable donation or community contributions.
58I reject the submission that the extent to which funds otherwise available to RACV to provide member services and community contributions, would be depleted by a fine, or the amount of the fine should be taken into account when considering the weight to be given to general deterrence. I also reject the submission that a non-conviction disposition is appropriate. In my view, despite the fact RACV comes to be sentenced as a first offender, having regard to the findings I have made about the gravity of the breach and the weight to be given to general deterrence, a conviction is warranted.
59Ultimately, sentencing is an exercise in intuitive synthesis. There is no mathematical formula and, importantly, for Mr Halls' family, it must be emphasised, a sentence punishes wrongdoing. It is not a crude measure of the value of a life of a much loved, hardworking man, who died just doing his job. May this process of charge and conviction, of detailing the shortcomings in RACV's OH&S obligations and imposition of a penalty, serve as a reminder to all of the importance of putting worker safety first.
60Balancing these matters as best I can, on the charge of failing to ensure, so far as was reasonably practicable, that persons other than its own employees were not exposed to risks to their health and safety arising from the conduct of its undertaking, RACV is convicted and fined $475,000.
61HER HONOUR: Mr Gullaci, are there any other orders that are required to be made?
62MR GULLACI: No, thank you, Your Honour.
63HER HONOUR: Dr Neal, any other orders that are required to be made?
64DR NEAL: No, Your Honour.
65HER HONOUR: Thank you. We'll then adjourn.
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