DPP v Frewstal Pty Ltd (Unreported, County Court of Victoria, Judge Cannon, 1 June 2015)
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CRIMINAL LAW – Appeal – Crown appeal against sentence – Occupational health and safety – Employer’s failure to ensure that persons other than employees are not exposed to risks to health and safety – Three charges – Failures with respect to the design of plant –Failures properly to maintain plant – Failures properly to instruct persons as to the use of plant – Failure causal of death of user of plant – Employer company fined an aggregate of $250,000 – Whether sentence manifestly inadequate – Residual discretion to dismiss Crown appeal despite inadequacy of sentence – Appeal dismissed – Occupational Health and Safety Act 2004 (Vic), s 23.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr B F Kissane QC with Mr J Gullaci
Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent
Dr G J Lyon QC with Mr P J Hannebery
Moray & Agnew
MAXWELL P:
Summary
The Occupational Health and Safety Act 2004 (‘OHSA’) imposes two principal safety duties on Victorian employers. The first is the employer’s duty to provide, so far as is reasonably practicable, a safe working environment for its employees.[1] The second is the employer’s duty to ensure, so far as is reasonably practicable, that ‘persons other than [its] employees’ are not exposed to safety risks as a result of the conduct of its undertaking.[2] In both cases, the employer is obliged to eliminate safety risks or, where that is not reasonably practicable, to mitigate the risks so far as practicable.[3]
The present case involves the second of these two duties. The respondent (‘Frewstal’) pleaded guilty to three separate breaches of its obligation under s 23 of the OHSA to ensure the safety of non-employees, in this case, delivery drivers engaged by a transport contractor.
Frewstal is the operator of a busy abattoir. In about 1991, it constructed and installed a ramp to enable the unloading of livestock from delivery trucks. On 14 September 2013, the ramp collapsed, killing a delivery driver.
The OHSA does not impose liability on employers for causing accidents. The legislative scheme is (with one exception) risk-based, not outcome-based.[4] Rather, the OHSA is breached when an employer fails to do what is reasonably practicable to eliminate or mitigate risk.
[4]Exceptionally, s 32 imposes liability for reckless conduct that ‘places … another person at a workplace in danger of serious injury’.
In this case, Frewstal failed, in three separate ways, to identify and eliminate a grave risk to safety. First, Frewstal failed to have…
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.
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Details
AGLC
DPP v Frewstal Pty Ltd [2015] VSCA 266
Case
[2015] VSCA 266
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions has appealed against the sentence imposed on Frewstal Pty Ltd by the County Court of Victoria, challenging the adequacy of the penalty imposed on the company for breaches of occupational health and safety laws that resulted in the death of an individual. The company was found guilty of three charges under the Occupational Health and Safety Act 2004 (Vic), relating to failures in the design, maintenance, and instruction regarding the use of plant at its premises. These failures were considered to have contributed to the death of a person using the plant.
The central issue before the court was whether the sentence imposed on Frewstal Pty Ltd was manifestly inadequate, warranting an increase in penalty. The court had to assess the seriousness of the breaches and the culpability of the company, considering the statutory objective of deterring such conduct in the future. The Crown argued that the fine of $250,000 was insufficient given the gravity of the breaches and the tragic outcome. The company, on the other hand, submitted that the sentence was appropriate given the circumstances, including its compliance history and efforts to improve safety measures post-incident.
In dismissing the Crown's appeal, the court recognised the significant breaches committed by Frewstal Pty Ltd, which had a direct causal link to the death of an individual. However, the court held that while the sentence was on the lower end of the scale, it was not so inadequate as to merit an increase. The court exercised its residual discretion under section 23 of the Occupational Health and Safety Act 2004 (Vic) and determined that the existing sentence was sufficient to achieve the aims of deterrence and denunciation. Consequently, the appeal was dismissed, and the original penalty of $250,000 was upheld.