SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0003
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) | Appellant |
| v | |
| COATES HIRE OPERATIONS PTY LTD (ACN 074 126 971) | Respondent |
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| JUDGES | MAXWELL P, WEINBERG JA and HOLLINGWORTH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 November 2011 |
| DATE OF JUDGMENT | 25 June 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 131 |
| JUDGMENT APPEALED FROM | R v Coates Hire Operations Pty Ltd (Unreported, County Court of Victoria, Judge McInerney, 13 December 2010) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Occupational health and safety – Failure to provide and maintain safe working environment – Failure to provide and maintain safe system of work – Failure to provide necessary information, instruction, training and supervision – Whether ‘rolled-up count’ – Management aware of non-compliance with safety procedures – Company aware of risks associated with non-compliance – No action taken to enforce compliance – Judge found ‘disregard of safety of workers’ – Relevance of prior enforcement action and prior convictions – Specific deterrence – General deterrence – Company’s culpability very high – Appeal allowed – Fine increased from $250,000 to $500,000 – Occupational Health and Safety Act 2004 (Vic) ss 21(1), 21(2)(a) and (e), 33, 144.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr P G Priest QC with Mr S T Russell | Sparke Helmore |
MAXWELL P
WEINBERG JA
HOLLINGWORTH AJA:
Summary
Coates Hire Operations Pty Ltd (‘Coates’) is a national (and international) equipment hire company. It is the largest such business in Australia. As noted by the sentencing judge, the company’s southern region (Victoria, South Australia and Tasmania) had turnover of $160 million in 2009–10. The company employs 2,200 people at 210 locations throughout Australia.
The delivery of equipment to customers of Coates is carried out by transport sub-contractors engaged by Coates. Of these, two are relevant for present purposes: Redline Towing and Salvage Pty Ltd (‘Redline’) and Dandenong Heavy Haulage Pty Ltd (‘DHH’).
On 2 February 2007, Mr Colin Todd, a driver employed by Redline, died while loading equipment onto a semi-trailer tilt tray truck at Coates’s Dandenong depot. The equipment in question was a piece of large-scale, wheeled, industrial equipment known as an ‘elevated work platform’ (‘EWP’).
Mr Todd had driven the EWP onto the truck, instead of using a winch cable to load it. This was in direct contravention of safety procedures adopted by Coates, which required that the winch cable ‘MUST ALWAYS be connected to the equipment when loading and unloading’.[1] As will appear, however, Mr Todd had never been given a copy of the relevant procedures, and had never had an induction in the procedures.[2]
[1]Emphasis in original: see [17] below.
[2]See [21] below.
The sentencing judge found that the safety procedures were directed at eliminating ‘the very hazard which killed Mr Todd’. He said:
On 2 February 2007, and indeed for some time preceding it, Coates and all its sub-contractors who utilised the…
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- AGLC
- DPP v Coates Hire Operations Pty Ltd [2012] VSCA 131
- Case
- [2012] VSCA 131
- Decision Date
CaseChat Overview and Summary
The court examined the extent of Coates Hire's non-compliance with safety procedures, the awareness of management and the company of the risks, and the failure to enforce compliance. The judge found that Coates Hire showed a disregard for the safety of its workers. The court also considered the relevance of prior enforcement actions and convictions, which suggested a pattern of non-compliance. The appeal hinged on whether the original sentence of $250,000 was sufficient to address the gravity of the breaches and to deter future non-compliance.
In its judgment, the Court of Appeal concluded that the original sentence did not adequately reflect the culpability of Coates Hire. The court found that the company's culpability was very high, given its awareness of the risks and failure to act. The court increased the fine from $250,000 to $500,000 to ensure that the sentence served the purposes of specific and general deterrence. The appeal was allowed, and the fine was increased accordingly.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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