Director of Public Prosecutions v Specialised Concrete Pumping Victoria Pty Ltd

[2018] VCC 105

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-01653

DIRECTOR OF PUBLIC PROSECUTIONS

v

SPECIALISED CONCRETE PUMPING VICTORIA PTY LTD

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2017
DATE OF SENTENCE:	15 February 2018
CASE MAY BE CITED AS:	DPP v Specialised Concrete Pumping Victoria Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 105

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited: Occupational Health & Safety Act 2004

Cases Cited:

Sentence: Fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. McGregor	OPP
For the Accused	Mr P. Rozen	Colin, Biggers & Paisley

HER HONOUR:

1The corporate entity, Specialised Concrete Pumping Victoria Pty Ltd (SCPV) has pleaded guilty to two charges under the Occupational Health and Safety Act 2004 of:

(1) failing to provide and maintain systems of work; and

(2) failing to provide information, instruction, training and supervision.

2The maximum penalty in respect of each offence in relation to a body corporate defendant is 9000 penalty units or approximately $1.365 million.

3The circumstances of SCPV's offending are summarised in the prosecution opening that was read by the prosecutor to the court, Exhibit A.  Those circumstances there set out, have been accepted by defence counsel as accurate and can be summarised as follows.

4On 12 November 2015 SCPV operated a business from a yard in Keysborough.  SCPV provided high volume concrete pumping services to the construction industry.   Part of the operation on this day required staff to disassemble a concrete pumping component known as a “tower tube” to enable it to be loaded by crane onto a truck for transportation to Queensland.  The relevant staff members present at the site were Tony Douglass, who was the Operations Manager, Adrian Gilchrist, Carlos Araujo and Jason Egan.  The latter three employees were involved in the disassembling task.

5The tower tube was approximately 15 metres long and capable of being split into sections.  The sections were held together with bolts and each separate length of the tower tube weighed about 2 ton.  The task required the loosening of bolts that held the links together whilst the tower was horizontal on the ground.

6In order to get access to some of the bolts the employees undertook this task using a forklift to slightly elevate the tower.  Photographs of the tower tube, its position on the ground and the forklift were provided to me.  The procedure implemented for this task was that Mr Araujo and Mr Gilchrist were to stand to the side of and behind the mast of the forklift so as to chock the underside of the tower tube with timbers.  The tower tube was then supposed to be elevated with the forklift so that bolts located underneath the tube could be accessed and loosened.

7Mr Egan took up position in the cabin of the forklift while Mr Gilchrist and
Mr Araujo stood in front of the tower tube.  Mr Gilchrist directed Mr Egan to elevate the tower tube.  However, he did not wait until both men were clear before lifting the tynes.  When the load was raised the tower tube slid off the tynes and struck Mr Araujo, trapping him against an adjacent brick wall. 

8Tragically, Mr Araujo died in the yard from multiple crush injuries inflicted around his ribcage.

9Representatives from WorkSafe attended the yard immediately after the accident.  The following day a representative from WorkSafe was informed that a safe work method  statement (SWMS) had been developed for this task.  It stated that when tower tubes were unloaded off trucks that they should be placed directly onto timbers so that they were already elevated.  If a forklift was then required to further elevate the tower tube an exclusion zone should be enforced around the tower tube and spotters used.  He was informed that a crane company had now been engaged to load the tower tube onto a truck for transport to Queensland.

10Expert opinion obtained by WorkSafe opined that:  (a) the forklift used in this task that gave rise to the incident was inherently unsafe because of the nature of the object being lifted; and (b) that a crane should have been used for the task of elevating the tower tube for full or partial disassembly.

11SCPV has accepted by its plea that it breached the relevant provisions of the Act by failing to reduce the risk of death or serious injury to employees in carrying out this work in the manner in which it did by:  (a) Providing an adequate system of work in relation to the procedure of splitting the pipes or tower tube, (Charge 1, pursuant to s.21(1) and 21(2)(a)); and (2) Providing employees and or instructing them in a written SafeWork method statement dictating that a crane was to be used to elevate the tube tower so that it could be partially and/or completely disassembled; and (c) Instructing employees not to use a forklift to elevate the tube tower so that it could be partially disassembled; and (d) Supervising employees to ensure that a forklift was not used to elevate the tube tower so that it could be partially disassembled.  See Charge 2, ss.21(1) and s.21(2)(e) of the Act.

12Tendered on the plea were a number of victim impact statements from
Mr Araujo's sister, parents and stepsister.  Each of them eloquently sets out the consequences following this industrial accident and the effect of the death of their son and brother on each individual and their family.  The circumstances of the death of this young man were tragic.  He went to work one day, never to return to his home.  The sentence I impose should not be understood by the family as in any way placing a value on the life of their son or brother or upon the grief and trauma that his death has caused them.  The impact on his family and friends has been significant and I take into account, pursuant to the provisions of the Sentencing Act.

13The gravamen of your breaches was that you allowed your employees to be left to improvise, using the forklift, making the lifting exercise of the tubing an inherently dangerous task.  There were no written instructions or supervision provided relating to this task being carried out or as to the use or otherwise of the forklift with materials of this weight.

14The primary factor in determining the appropriate penalty is the objective seriousness of the breach of the duty that the Act imposes.  The gravity of the contravention is measured by two factors:  the seriousness of the breach itself, that is the extent to which you departed from your statutory duty; and the extent of the risk of death or serious injury which might result from the breach.

15An assessment of the extent of the risk itself involves a consideration of two factors:  the likelihood of the occurrence of an event as a result of the breach, in this case doing the task in the manner in which it was done, endangering the safety or employees or others; and the potential gravity of the consequences of such an event.  In particular, whether there is a risk of death or serious injury, as in this case by crushing.

16You have clearly fallen short of your duty to ensure the safety of your employees.  Although the men were not specifically directed to use the forklift in the manner in which they did or specifically directed to undertake the work in an inherently and obviously unsafe manner, you took no steps to ensure this did not occur or to inform them of the dangerous manner in which they were undertaking the task.  The steps you should have taken to avoid the significant risk of death or serious injury was simple and available at the time of the incident.

17The need to ensure these steps were taken was particularly so in these circumstances where the likelihood of the risk of serious injury or death eventuating was high.  The risk involved in this case was of limited duration, namely the time required to disassemble the tower tube, and it was not suggested that unsafe practices were regularly adopted by your company.  However, the risk of this tragic incident occurring was objectively high and potential outcome grave.  There existed a strong risk of injury or death once the forklift was used to lift the tower tube and thus introduced the prospect of the load falling from the tines onto employees in the vicinity.

18You failed to monitor this incident in any manner, such that its occurrence may have been avoided.  You could and should have taken the relevant steps to avoid the risks associated with this task.  It was not suggested that you had directed the employees to carry out this task in the dangerous manner in which they did.  Such would have significantly aggravated this offending.  However, given that the workers were effectively left to their own devices to undertake the work in this manner, the prospect of them doing so was very real, as were the tragic consequences.  It was a risk that needed to be managed.  The objective gravity of your offending is mid-range serious.

19I take into account your plea of guilty.  You are entitled to a reduction in penalty as your plea has saved the time and court costs associated with a trial and no witnesses have been required to re-live this traumatic incident.  I also treat the plea as evidence of your remorse.  There is other evidence of remorse.  You fully cooperated with the investigators and you have no prior breaches or convictions related to the legislation and it is not suggested that you did not otherwise maintain a safe workplace.

20Additionally, I was informed that SCPV has been placed in liquidation and no longer operates.  However, the sole director of the company was in attendance during these proceedings and has previously expressed deep regret to the family of Mr Araujo.

21I take these matters into account, though I am mindful of the remarks by the Court of Appeal in DPP & Amcor Packaging Australia 11VR 557 at 564. “The primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence, particularly in cases involving a serious breach of the OH&S Act, subjective factors such as a plea of guilty, cooperation with the investigation  and subsequent measures taken to improve safety,  must place a subsidiary role in determination of penalty to the gravity of the offence itself.”

22Your counsel submitted the penalty imposed should reflect the overlap in the charges that the fail to provide an adequate system of work for this task was similar to the particulars in respect of Charge 2.  The prosecution highlighted the difference in the allegations, namely in Charge 1, the absence of any written system for the safe carrying out of the task; and Charge 2, relating to the failure re any system regarding the dangers of improvising, the dangers of using the forklift and not providing any supervision to ensure that the forklift method was not utilised in carrying out the task.

23I accept that there are some features that overlap in the particulars.  However, there are aspects of the breach that are not encompassed in both charges.  Further, I note Charge 2 is particularised as three separate acts.

24General deterrence is an important sentencing factor in cases involving breaches of the Occupational Health and Safety Act.  Employers must be aware that they will face significant financial penalties   if they engage in conduct that fails to protect the safety of their employees in accordance with their statutory obligations.  In the circumstances of this case specific deterrence has little or no part to play in the sentencing exercise.  SCPV has gone into voluntary administration and ceased trading in June 2016.

25The parties made reference to and provided me with some comparable cases.  Given the circumstances in respect of each case are unique, they do provide some guidance but are of limited assistance.  Taking all relevant sentencing matters into account as set out in those reasons, I sentence you as follows:

in respect of Charge 1 you are convicted and fined $250,000;

in respect of Charge 2 you are convicted and fined $250,000.

26Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to these matters I would have convicted and fined you in respect of each charge, $400,000.

27Do you need time?

28MR ROSEN:  If the court pleases.  Your Honour, I understand, and I may be incorrect here, I understand that stays and the like are now dealt with by Fines Victoria.  Is that - - -

29HER HONOUR:  That may be so.

30MR ROSEN:  I understand from 1 January.  I only learnt this last week in another matter.

31HER HONOUR:  All right.

32MR ROSEN:  That the court no longer concerns itself with stays.

33HER HONOUR:  Actually I think you are right.  I recall reading something about that towards the end of last year.

34MR ROSEN:  Yes.  I understand that Fines Victoria contact the defendant through their solicitors and then there is any discussion about a stay that is needed.

35HER HONOUR:  All right, thank you.

36MR ROSEN:  If that turns out to be wrong perhaps we could bring the matter back before Your Honour.

37HER HONOUR:  Yes, you can.

38MR ROSEN:  If that is permissible through Your Honour's associate we will contact you.

39HER HONOUR:  Yes.  Someone can contact my associate if that is the situation.  Thank you.

40MR ROSEN:  Yes, but we would be grateful with it being left on that basis.  Thank you, Your Honour.

41HER HONOUR:  Thank you.  The parties are excused.  Thanks.

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