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)

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Coates Hire Operations Pty Ltd

Details

AGLC: DPP v Coates Hire Operations Pty Ltd [2012] VSCA 131
Case: [2012] VSCA 131
Decision Date: 25 June 2012

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed against the sentence imposed on Coates Hire Operations Pty Ltd (Coates Hire) for breaches of occupational health and safety laws, following an incident that resulted in the death of an employee. The case was heard in the Court of Appeal, which had to consider whether the original sentence was too lenient. The crux of the legal issues was whether the original sentence adequately reflected the culpability of Coates Hire and served the purposes of specific and general deterrence.

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