Metricon Homes Pty Ltd v O'Grady (VWA) (No 2)

[2018] VSC 816

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 01529

METRICON HOMES PTY LTD	Appellant
v
COLLEEN O’GRADY (VICTORIAN WORKCOVER AUTHORITY)	Respondent

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2017
DATE OF JUDGMENT:	21 December 2018
CASE MAY BE CITED AS:	Metricon Homes Pty Ltd v O’Grady (VWA) (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 816

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SENTENCING – Appeal from conviction under s 21(1) Occupational Health and Safety Act 2004 (Vic) dismissed – Whether error in sentencing at first instance – whether re-sentencing required – Gravity of breach – Extent of departure from statutory duty – Extent of risk of injury – Relevance of injury to victim – Orbit Drilling Pty Ltd v The Queen [2012] 35 VR 399 – DPP v Frewstal Pty Ltd [2015] VSCA 266 (24 September 2015) – DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 (24 March 2016).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	G Livermore	Sparke Helmore Lawyers
For the Respondents	D Gurvich QC and A French

HIS HONOUR:

Introduction

1. In March 2017 a magistrate found the appellant, Metricon Homes Pty Ltd (‘Metricon’) guilty of an offence under s 21(1) of the Occupational Health and Safety Act 2004 (Vic) (‘the Act’) on the basis it had placed three employees, Mr Newbegin, Mr Bilson and Mr Altair, at risk of injury. Metricon appealed the magistrate’s decision on various grounds. It was successful only in relation to Mr Altair. In a judgment delivered earlier this year I concluded Metricon’s appeal should be dismissed.[1]

   [1]Metricon Homes Pty Ltd v O’Grady (VWA) [2018] VSC 351 (26 June 2018).

1. After judgment was delivered, Metricon raised the following further issues:

(a)   Because the sentence imposed by the magistrate depended in part on the finding in relation to Mr Altair which was not sustained, the sentence should be set aside, and Metricon re-sentenced.

(b)   Because Metricon enjoyed some success on the appeal, there should be no order for costs.

(c)    Because the magistrate’s finding was not sustained insofar as it related to Mr Altair, the finding of guilt in relation to the alleged breach of duty owed to Mr Altair should be formally set aside.

Background

1. I will not repeat the relevant background set out in the judgment dismissing Metricon’s appeal.  In summary, the charge related to the failure of Metricon to ensure that the frame of a residence it was constructing was inspected and approved by a building inspector before allowing roof tiling work to occur.  A failed building inspection report identified that PT bracing, which was a weight-bearing element of the roof frame, had not been installed. There was a risk that if the roof was loaded with the weight of tiles, before the defect was rectified and the frame was approved, it might collapse and cause injury to workers.

1. Before the frame was approved, the roof was loaded with tiles and tiling work commenced.  A section of the roof collapsed while Mr Altair was performing tiling work.  As a result he suffered injury.  The learned magistrate found that the absence of the PT braces was a cause of the roof collapse.

1. Particulars to the charge included Mr Altair as one of the three employees put at risk by Metricon’s breach of s 21(1) of the Act. However, Mr Altair was not employed by Metricon. The two Metricon employees at risk of injury if the roof collapsed were not on or in the vicinity of the roof when it collapsed, but were placed at risk because the possibility existed that they might walk under the roof or in proximity to it after it was loaded with tiles.

1. In the Magistrates’ Court the charge was found proven in respect of Mr Altair under s 21(3) of the Act which reads:

For the purposes of subsections (1) and (2)—

(a)a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and

(b)the duties of an employer under those subsections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.

In fact the particulars to the charge did not allege that Mr Altair was an employee by virtue of s 21(3). On appeal the respondent (‘the VWA’) conceded in its written outline that it was necessary for the particulars to identify that the statutory duty was owed by virtue of s 21(3) of the Act, and because it did not do so the charge was insufficient in law with respect to Mr Altair.

1. In sentencing remarks the learned magistrate referred to Mr Altair having suffered an injury which involved hospitalisation.  The magistrate imposed a fine of $15,000 without conviction, and ordered that Metricon pay VWA’s costs of $30,000.

The appeal

1. Metricon brought this appeal under s 272 of the Criminal Procedure Act 2009 (Vic), sub‑s 9 of which provides:

After hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates’ Court with or without any direction in law.

The parties agree that if I conclude an error has occurred in the sentencing process I should re-sentence Metricon, rather than remitting the matter to the Magistrates’ Court.[2]

[2]McWhirter v Dunlop; Tran v Harris [2013] VSC 697 (13 December 2013) [54]; Rodger v Wojcik [2014] VSC 308 (24 June 2014) [40].

Relevant principles

1. A number of cases have considered the relevance of exposure of workers to risk of injury in breach of s 21 of the Act, and of the seriousness of an injury which actually occurs, to sentencing. In Orbit Drilling Pty Ltd v The Queen,[3] the Court of Appeal concluded that the objective seriousness of an offence under s 21 of the Act was determined by the extent of the failure of an employer to ensure its employees were not exposed to risk of injury, and not by the consequences of materialisation of the risk. The Court added that an accident causing injury to an employee may provide evidence of the existence and seriousness of the risk.[4]

   [3][2012] 35 VR 399 [62].

   [4]Ibid.

1. In DPP v Frewstal Pty Ltd,[5] the Court of Appeal said:

In our opinion, sentencing judges should be guided by the following principles:

• First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An accused is punished according to the gravity of the breach of duty owed under the OHSA, not according to the result or consequences of the breach.

• Secondly, the gravity of the breach is measured by two factors — the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.

• Thirdly, an assessment of the extent of the risk itself involves consideration of two factors — the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others; and, the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).

• Fourthly, the fact that the breach in the particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.[6]

[5][2015] VSCA 266 (24 September 2015) [127].

[6]Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610, 650 [95].

1. In DPP v Vibro-Pile (Aust) Pty Ltd,[7] the Court considered a submission by the prosecution that the Sentencing Act 1991 (Vic) (‘Sentencing Act’) required the sentencing court to take into account, separate from the assessment of the nature and gravity of the offence, the impact of the offence on any victim and any injury, loss or damage resulting directly from the offence.[8] It is important to note this submission related to the death of a worker, who was not an employee of Vibro-Pile, and that the particulars of the charges against Vibro-Pile did not identify the deceased worker as a person placed at risk and did not rely on s 21(3) of the Act. The prosecution drew attention to the definition of ‘victim’ in s 3 of the Sentencing Act:

   [7][2016] VSCA 55 (24 March 2016) (‘Vibro-Pile’).

   [8]Sections 5(2)(daa) and (de) of the Sentencing Act.

victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender;

The Court of Appeal concluded:

195In our view, the Director’s submission must be accepted.  The provisions of the Sentencing Act 1991 are quite clear.  The sentencing court is obliged to consider the impact of the offending on victims, that is, on persons who suffer loss and damage as a ‘direct result’ of the offending.  For these purposes, it makes no difference whether the duty breached is a duty owed to employees (s 21 and s 22) or to others (s 23).

…

200This discussion highlights the complexity of sentencing for OHSA offences.  As discussed earlier in these reasons, the question of whether the safety breach caused injury or death is irrelevant to criminal liability. Further, in a case like this, the occurrence of death or injury would not have any bearing on the assessment of the objective gravity of the offence.  Yet at the same time it is a matter which must be taken into account in assessing victim impact (assuming the availability of sufficient evidence or — on a plea — a relevant admission).  This underlines the importance of prosecutors being properly instructed, so that they can explain these distinctions very clearly to the sentencing court.

Submissions

1. The VWA submitted the penalty imposed on Metricon was lenient and, given the nature of the offence and the plea of not guilty, a lower sentence is not warranted.

1. Metricon submitted, first, it was sentenced on a more aggravated basis than it should have been because the magistrate took into account the risk to Mr Altair in circumstances where the likelihood of the risk materialising was evidenced by the roof collapsing and Mr Altair suffering serious injury.  Second, it should have been sentenced only on the basis of the likelihood of the risk materialising and causing injury to Mr Bilston and Mr Newbegin, which it should be concluded was remote ‘having regard to the fact that the only evidence of the materialisation of the risk was the fact that the roof collapsed when Mr Altair’s weight was on it along with a load of roof tiles being distributed by him.  Messrs Bilston and Newbegin would never be at risk in that situation, as they described in their evidence.’  Third, the magistrate sentenced Metricon on the erroneous and aggravated basis that it had not given consideration to the safety ramifications of the building surveyor’s report when in fact Mr Bilston and Mr Newbegin had considered the report and concluded the matters raised in it did not adversely impact on the safety of working on the roof.

Analysis

1. For the following reasons I reject Metricon’s submissions.  First, I reject its characterisation of the degree of risk to Mr Bilston and Mr Newbegin.  In reasons for judgment I concluded:[9]

…The risk of the roof collapse arose from loading the roof with the weight of tiles when the weight-bearing PT braces had not been installed.  There was no evidence the risk of collapse was limited to the times when tilers were on the roof laying tiles.  Mr Bilston and Mr Newbegin attended the building site regularly in the course of their work for Metricon.  The possibility existed that, other than at times when tilers were on the roof performing tiling, they might walk under or in proximity to the alfresco roof.  As a consequence, Mr Bilston and Mr Newbegin were placed at risk of serious injury if the roof collapsed because it was loaded with the weight of tiles when it was inadequately supported.

I do not accept that the risk to Mr Bilston or Mr Newbegin was remote.  Viewed prospectively, there was a risk of the roof collapsing which arose when it was loaded with tiles and tiling work commenced and continued until the PT braces were installed.  If either Mr Bilston or Mr Newbegin was under or within proximity of the roof when it collapsed there was a real risk of them suffering very serious injury.  The collapse of the roof is evidence which is relevant to the existence of the risk to Mr Newbegin and Mr Bilston, and of the seriousness of the risk.

[9][2018] VSC 351 [63].

1. Second, as the decision in Vibro-Pile[10] demonstrates, the injury to Mr Altair is a relevant sentencing consideration. The learned magistrate found the absence of the PT bracing was a cause of the roof collapse. In the judgment dismissing Metricon’s appeal I found that conclusion was open. Therefore Mr Altair is a victim for the purposes of the Sentencing Act. In sentencing Metricon the Court must have regard to the injury to Mr Altair.

   [10][2016] VSCA 55 (24 March 2016).

1. Third, I do not regard the mischaracterisation of the evidence of Mr Bilston and Mr Newbegin as significant.  The learned magistrate mistakenly concluded that neither Mr Bilston nor Mr Newbegin considered the failed building inspection report before the roof tiling work commenced.  However, weighed against that finding was his Honour’s acceptance that Metricon had a history of being safety conscious, had in place various work systems to check the safety of the frame before work proceeded, and that neither Metricon nor the various contractors on site appreciated the risk which came about because of the somewhat unusual size of the alfresco area of the residence under construction.

1. Fourth, I accept VWA’s submission that after removing from consideration the risk to Mr Altair and the mischaracterisation of the evidence of Mr Bilston and Mr Newbegin to which I have referred, the sentence is lenient. The risk to which Mr Bilston and Mr Newbegin were exposed was serious. The building permit issued to Metricon specified it was to be read in conjunction with the engineering design for the building, which required installation of PT braces to support the large alfresco roof. A WorkSafe alert identified the risk that temporary supports may be insufficient when a roof frame is exposed to additional loads, including from roof workers installing roofing. There is no evidence Mr Bilston or Mr Newbegin asked the engineer, the roof framers or the building inspector about the sufficiency of the temporary supports before allowing the roof to be loaded with tiles. The maximum penalty of over $1,000,000 reflects the seriousness with which a breach of s 21 of the Act should be treated. General deterrence, as the learned magistrate observed, is of particular importance. I take account of the lack of relevant prior offending, Metricon’s history of being safety conscious and having in place systems to check frame safety, that neither Mr Bilston nor Mr Newbegin appreciated the risk, and the immediate response by Metricon to change work methods to avoid future risk.

1. I accept the submissions of the VWA that a lower sentence is not warranted.

Costs

1. Metricon appealed on 12 grounds.  Ground 2, which related to the finding in respect of Mr Altair, was conceded in the VWA’s written outline.  Ground 3 was not separately argued.  Metricon failed on the remaining 10 grounds.  The appeal will be dismissed.  In my view it is appropriate that Metricon pay VWA’s costs of the appeal.

The finding in relation to Mr Altair

1. Metricon submits the record must be corrected by a formal finding that it is not guilty of the charge in relation to Mr Altair. I recorded in my judgment,[11] and again in these reasons, that VWA conceded that issue. I accept Metricon’s submission, and VWA’s concession, that, because the particulars to the charge did not identify that the statutory duty to Mr Altair was owed by virtue of s 21(3) of the Act, the finding that the charge was proven in respect of Mr Altair could not be sustained. In my view nothing more is required.

   [11]Metricon Homes Pty Ltd v O’Grady (VWA) [2018] VSC 351 (26 June 2018) [55].

Costs

1. I will order that:

(a)   The appeal is dismissed; and

(b)   The appellant pay the respondent’s costs.