Director of Public Prosecutions v Thiess Services Pty Ltd
[2015] VCC 1954
•6 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00986
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THIESS SERVICES PTY LTD |
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JUDGE: | His Honour Judge Carmody | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2015 | |
DATE OF SENTENCE: | 6 November 2015 | |
CASE MAY BE CITED AS: | DPP v Thiess Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1954 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms E. Holt | OPP |
| of Public Prosecutions | ||
| For the Accused | Mr R. O'Neill | K & L Gates |
HIS HONOUR:
1 On 4 August 2015, a jury of twelve convicted Thiess Services Pty Ltd of the following charges:
2 Charge 1, on 19 April 2012, failing to ensure that persons other than employees were not exposed to risk for their health and safety contrary to s.23(1) of the Occupational Health and Safety Act (2004); and;
3 Charge 2, on 27 April 2012, failing to make arrangements for ensuring the safety and absence of risk to the health of its employees in connection with the transport plant, contrary to s.21(1) and s.21(2)(b) of the Occupational Health and Safety Act (2004).
4 The trial was conducted over a total time of six days to verdict by the jury. The plea on behalf of the defendant company was adjourned until 20 August 2015, to allow for plea material to be collated and prepared.
5 The maximum penalty for a corporate defendant for each of these charges is a fine of $1,099,260 or as is outlined in the legislation, 9,000 penalty units.
SENTENCING FACTS
6 I find the following facts to be proved beyond reasonable doubt and consistent with the jury verdict of guilty to Charges 1 and Charge 2.
1) Thiess Services Pty Ltd is and was a company.
2) Thiess Services Pty Ltd was the employer of Brendan Maher, Matthew Dunne, and Clint Hendry, Shane Murphy and M. Cho.
3) In April 2012, Thiess Services Pty Ltd was conducting maintenance and conservation work along the banks of the Patterson River at Patterson Lakes. The work was done pursuant to a contract with the responsible authority, Melbourne Water.
4) In order to perform the work, Thiess Services Pty Ltd operated the tug and barge on the Patterson River. Melbourne Water owned the tug and barge, known as "Argie" and "Bargie" respectively. Thiess Services Pty Ltd oversaw the design, construction and surveying of the vessels. In particular, the barge was to have a capacity to carry a 5 tonne excavator.
5) In March of 2010, New South Wales Maritime surveyed the barge. New South Wales Maritime advised Thiess Services Pty Ltd that it had concerns about the stability of the barge in the loading and transportation of an excavator weighing 5.3 tonne.
6) In April 2010, New South Wales Maritime issued a Certificate of Survey for the barge. One of the conditions on the Certificate of Survey was: "The vessel (the barge) and ancillary equipment must be operated in accordance with loading conditions in the New South Wales Maritime approved stability book on board."
7) The designer of the barge recommended that a stability book be obtained to operate the vessel.
8) Thiess Services Pty Ltd made enquiries about obtaining a stability book. The cost of a stability book was estimated to be between $1,300 and $3,300.
9) Thiess Services completed a risk assessment in relation to the operation of the barge and boat at Patterson River. The risk assessment stated "A stability book will be provided with the barge in the near future".
10) At the time of the offences, in April 2012, the stability book had not been provided for the operation of the boat and barge.
11) Thiess Services Pty Ltd did provide a stability book for the operation of the boat and barge after the offences in April 2012.
CHARGE ONE
7 Savio Dragone was an owner/operator of a 15 tonne JCB excavator, contracted by Thiess Services Pty Ltd to perform works at Patterson River in April 2012.
8 On 19 April 2012, Mr Dragone was to have his excavator transported on the barge. He expressed concern to Thiess Services employees that the barge was not big enough to carry his excavator.
9 Dragone reversed his excavator onto the barge. The barge was stuck on the river bank. Dragone was instructed to use the boom of the excavator to push the barge off the river bank.
10 Dragone was instructed to move the boom to stop the barge rocking. He was relieved to get his excavator off the barge. Dragone did not use the barge to transport his excavator again.
11 There was no stability book for the barge and the movement of a 15 tonne excavator. The proper calculations and use of a stability book would have shown it was unsafe to transport Dragone's excavator on the barge.
12 Dragone was placed at risk of injury to his safety and health by Thiess Services Pty Ltd, by operating the barge without a stability book.
CHARGE TWO
13 The second offence occurred on 27 April 2012. The circumstances of this offence are as follows:
14 Thiess Services Pty Ltd hired a 13 tonne Caterpillar excavator for use on the Patterson River contract.
15 Mr Maher, an employee of Thiess Services Pty Ltd, was to be the operator of the excavator. He had only used a five tonne excavator on the barge prior to this day. He was not at work on the day Mr Dragone used the barge with his much larger excavator. Mr Maher contacted Shane Murphy, another member of Thiess Services Pty Ltd, to check if he could use a 13 tonne excavator on that barge. He was told the barge could hold 15 tonne and a 13 tonne excavator had been used on the barge before.
16 Mr Maher loaded the 13 tonne excavator onto the barge. The barge was stuck on the river bank. He used the boom of the excavator to push the barge off the river bank. Once the barge was afloat, it started to lean. Mr Maher was instructed to get into the excavator and move the boom of the excavator to right the barge. He started the excavator, moved the boom, and the next Mr Maher knew, was the barge, boat and the excavator tipped over and into the water.
17 Mr Dunham was a construction worker with Thiess Services Pty Ltd. He checked the barge before it was operated, on this particular day. He observed a hole in the barge and operated the bilge pumps to remove any water in the hull of the barge. No water came out of those bilge pumps.
18 After the barge, boat and excavator all tipped into the river, Mr Dunham bravely rescued Mr Maher from drowning. The boat operator, Clint Hendrey, was able to get to safety on his own accord. But for Mr Dunham’s actions, this event would have had tragic consequences for Mr Maher.
19 Mr Chris Tucker, a naval architect, designed the barge. He recommended to Thiess Services Pty Ltd that a stability book be on board the vessel to ensure it was operated within its limits. Tucker quoted the costs of $3,000 plus GST for preparation of a stability book. Tucker was not engaged by Thiess Services Pty Ltd to prepare a stability book before the offences. Thiess Services Pty Ltd did obtain a stability book for the barge from Mr Tucker after the repair of the barge.
20 I accept that if any water was in the hull of the barge before Mr Maher placed the excavator on it, the stability of the barge would have been adversely affected. Mr Tucker said that despite water in the hull, a stability book was still a necessary item to assess the stability of the vessel and its operation.
21 Mr Christopher Baldwin built the barge. He was asked by Mr Cho from Thiess Services Pty Ltd about a stability book prior to the offences. Mr Baldwin advised Mr Cho, a naval architect had to prepare a stability book. He sourced a person to prepare a stability book for $1,300 and requested Mr Cho confirm for Mr Baldwin to proceed with obtaining that stability book. Nothing happened until after the offences.
22 Graeme Mugavin, a naval architect, gave evidence in the trial as an expert witness. I accept his opinion that a stability book was a necessary requirement for the proper management of risk in the operation of the barge by Thiess Services Pty Ltd. Mugavin's opinion was that even if there was undetected water in the hull of the barge that affected its stability, a stability book was still a necessary item or tool for the operation of the barge safely. I accept that evidence.
23 Mr Graeme Peterson, an industrial accident investigator, gave evidence for Thiess Services Pty Ltd in the trial. He was a qualified naval master. His observations and evidence was about the state of the barge vessel after the offences. Mr Peterson inspected the barge on 7 June 2012, some six weeks after the offending. He found approximately six tonne of water in the hull of the barge at the time for his inspection. Mr Peterson concluded that the water was in the barge on 27 April 2012, the day of the offence.
24 I do not accept on the standard of beyond reasonable doubt that there was six tonne of fresh water in the hull of the barge prior to the event on 27 April 2012. The barge was completely flipped upside down in the Patterson River and was almost completely submerged prior to recovery from the river by the crane. I do accept that there may have been some water in the hull of the barge, but its significance on the stability of the barge on the day in question was minimal.
25 I find that the loading of the 13 tonne excavator on to the barge without consultation and calculation by using a stability book meant the operators had no proper means of assessing the stability of the vessel and hence the safety of the workers on it.
IMPACT ON VICTIMS
26 In this case the direct victims were the crew of "Argie" and "Bargie" on 27 April 2012. Mr Dunham elected not to give a Victim Impact Statement. Mr Hendry elected not to give a Victim Impact Statement.
27 Mr Brendan Maher did prepare a Victim Impact Statement dated 7 August 2015. As a result of the incident on 27 April 2102, Mr Maher suffered the following physical injuries;
a) fractured right ribs;
b) lung infection;
c) a smashed upper dental plate;
d) cardiac disturbance;
e) chest, neck and upper back pain.
28 Mr Maher has made a good recovery from his physical injuries but continues to have occasional back pain. Mr Maher has suffered psychological symptoms since the incident. He has flashbacks and nightmares about the incident. He is tearful on occasion when thoughts of the incident come back to him. He has disturbed sleep.
29 Mr Maher tried to return to work operating heavy machinery but was unable to continue due to the freezing up or panicking when the machinery would, as he described it, tilt or lean over. He now works in traffic management for Thiess Services Pty Ltd.
30 Mr Maher has been affected in his ability to ride motor bikes and use his fishing boats. He struggles with mood changes in his family life. He has recently started seeing a psychiatrist to deal with his suicidal thoughts. Mr Maher has suffered a near death experience which has had a significant adverse impact on his life.
SENTENCING CONSIDERATIONS
31 Thiess Services Pty Ltd had one prior conviction for breach of the Occupational Health & Safety Act (NSW) 1983. The company was fined $58,500 in the Industrial Relations Commission of New South Wales on 24 May 2004 for breach of a similar provision to Charge 1 on this indictment. Thiess Services Pty Ltd has three subsequent convictions for offences under the Occupational Health & Safety legislation. Each of these subsequent convictions arose from breaches which occurred prior to the offending in this indictment. The subsequent convictions are not to be seen as aggravating the penalty in these offences, but it does give a wider context to the importance of specific deterrence in this sentence.
32 Mr O'Neill on behalf of Thiess Services Pty Ltd offered a statement of regret in the course of the plea. I do not accept that this statement of regret is equivalent of remorse given the company contested both charges before a jury and was ultimately found guilty. I accept however that Thiess Services Pty Ltd has made a concerted effort to improve the systems for the safety of its workers since 2012. In the three years since these offences, the company's Recordable Injury Frequency Rate has reduced by 50 per cent to 5.5 injuries per million hours worked. In line with that improvement, the High Potential Incident rate has decreased by 50 per cent to 1.54 incidents per million hours worked.
33 The company has embarked on a program to engineer out as much potential risk to employees as is possible in the construction and facility management industry in which it operates. The company has strong and appropriate policies and paperwork to enforce the culture of safe work practices. In the course of the plea the following company documents and reports were tendered;
a) Thiess Service Management Report, April 2012;
b) Thiess Service Management Report, April 2015;
c) Health and Safety Policy of Thiess Services;
d) Thiess Group: Health & Safety – Health and Safety Standards;
e) TC Corporate Policy Manual;
f) ASO Marine Consultants Pty Ltd: 12.2m Pontoon Barge with Excavator – Stability Assessment for Barges Australia:- ASO Document 1393-3002-002, document about barges;
g) Thiess, Elizabeth Bay Dredging Project (Western Australia);
h) Photographs of the barge at Elizabeth Quay;
i) Certificate of Registration;
j) SAI Global: Audit Report – Triannual Audit for Thiess Services Pty Ltd.
34 I have noted those parts of those documents that Mr O'Neill directed my attention. In particular, I note that the company has sourced an external auditor, SAI Global, to check the total safety systems utilised by Thiess Services Pty Ltd. This is a positive step for the future safety of Thiess employees and indicates the company is now taking its occupational health and safety responsibilities very seriously.
35 I accept the company has taken extra steps beyond its strict legal liability in the care and employment of Mr Maher. I also accept the company is a supporter of numerous charities and community groups as was outlined during the course of the plea. I find that in both of these charges that the failure of Thiess Services Pty Ltd to have a stability book to assist in the operation of the barge was causative of the harm to the workers as the risk could not properly be assessed without the use of a stability book in operating the barge.
36 I make this finding on the standard of beyond reasonable doubt consistent with the jury's verdict on the evidence in the trial. The first charge or incident involving Mr Dragone was a “warning incident”. It was fortunate that no harm became of that breach by the company. The second incident is an aggravating feature of the offending because the company did not review or change its procedures after the first incident, and in particular did nothing further to ensure the stability of the vessel was safe by using the stability book. Mr Maher queried its safety before placing the excavator on to the barge and was assured it was okay. There was no proper basis for such an assurance when the company had never used a stability book to check it.
37 In occupational health and safety offences such as these two charges, it is the extent of the failure to ensure that employees or contractors are not exposed to risk to their health and safety which determines the objective gravity of the offence. The extent of the failure in this case is the lack of a stability book and its use in the operation of a vessel. It is a critical failure.
38 In order to determine the gravity or seriousness of the offences I have to asses:
(1) the extent of the departure from the duty owed;
(2) the extent of the risk to the health and safety that is created; and
(3) the likelihood of the risk of the particular harm resulting.
39 In these two offences, the extent of the departure from the duty owed to its employees or contractors is significant. Failure to have a stability book to enable the proper operation of a barge is a basic failure in a system of work.
40 The extent of the risk to health and safety which was created by the failure to have a stability book is demonstrated by the barge tipping over and sinking in the circumstances of the second offence. This occurred after the “warning” demonstrated by the rocking of the barge on the first offence after being required to push the barge off the river bank with the boom of the excavator.
41 The likelihood of risk of a particular harm is also demonstrated by the events of the second offence, but are obvious in any event, that is, drowning or injury from the failure of the barge to stay upright and afloat. I also have to take into account current sentencing practices for these offences. A large number of authorities were tendered for my consideration by both parties. Most of those sentencing cases dealt with cases of a plea of guilty which is not the case that I am now dealing with. Further, each case is different, as indeed these offences are from those cases referred to me.
42 Thiess Services Pty Ltd had been advised to get a stability before the barge was commissioned. The cost of the stability book was relatively small, that is, $3,000 plus GST. The need for a stability book was rudimentary to the safe operation of a vessel. The breach of the legislation is significant.
43 The company has a prior conviction and three subsequent convictions for occupational health and safety breaches. The company has taken significant steps to improve its occupational health and safety regimes since these offences. Nevertheless, specific deterrent has a role in this sentencing process. The most important sentencing consideration is the need to reflect general deterrence. The principles of just punishment and denunciation of breaches of the occupational health and safety legislation are also highly significant
44 The principle of totality of sentence has been considered in the overall sentence for these two charges. The first offence ought to have put the company on notice and to rectify the omission of a stability book before operating the barge in the same manner. The second offence is more serious because of the company continuing to breach its duty in the face of a warning and proceeding nevertheless with near fatal consequences for one of its workers.
45I sentence Thiess Services Pty Ltd as follows;
46Charge 1, it is convicted and fined $250,000.
47Charge 2 it is convicted and fined $350,000.
MS HOLT: As the court pleases.
MR O'NEILL: May it please Your Honour.
HIS HONOUR: Do you want a stay?
MR O'NEILL: Two months.
HIS HONOUR: Yes. I grant a stay of two months to pay the fine. Ms Holt, how is the application for Mr Dunham's bravery award going?
MS HOLT: I am instructed that the application is almost complete and Mr Clayton's is three-quarters complete.
HIS HONOUR: Thank you. I want to thank counsel and their instructors for their assistance in this case, and the plea part of it as well, and thank you for attending this morning.
MS HOLT: As the court pleases.
MR O'NEILL: May it please the Court.
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