The trend of courts imposing increasingly heavy penalties for OHS offences has again been demonstrated in a recent case in the Victorian County Court, in which an experienced drilling rig foreman was convicted and sentenced to 20 months imprisonment, wholly suspended for three years. This follows closely after a construction worker was sentenced to a four month intensive corrections order (see our Legal Update).
The foreman was convicted of an offence of reckless endangerment under the Occupational Health and Safety Act 2004 (Vic) (the OHS Act) because he directed a 21 year old inexperienced junior worker to drive an overloaded truck with faulty brakes down a steep slope at a mining exploration site, resulting in an incident in which the worker suffered fatal injuries.
Judge Margaret Rizkalla found that he knew the parking brake on the truck was defective but continued to use the truck anyway — directing the worker to drive the truck onto a steep and difficult slope, knowing that the worker had only recently obtained his heavy vehicle licence.
The foreman was responsible for supervising a three person crew undertaking exploratory drilling for gold at Clonbinane north of Melbourne in December 2006. The crew included the junior worker who had his truck licence for just over two weeks, having only 11 hours of driving training before commencing work.
On his first day at the site, the worker was instructed by the foreman to drive an overloaded truck in off-road conditions, on a slope of approximately 10 degrees. The Court heard from a witness who had worked in the drilling industry for 10 years, who said the slope was the steepest he had seen a truck driven down.
The worker was attempting to reverse onto a drilling pad located at the top of the slope when the wheels locked up and the truck started sliding down the incline, gathering momentum before flipping over and landing on its roof. The worker was ejected from the cabin and pinned underneath the tray behind the cab and was crushed to death.
The Court heard evidence that the foreman knew that the truck’s parking brake was defective and that the worker had alerted him to that earlier that day. The investigation by Worksafe Victoria confirmed that the truck’s primary brake and the emergency hand brake were not working and the secondary brake had been disconnected. One expert said in the course of the proceedings that given the state of the brakes, it would have been physically impossible for the truck to have stopped on the slope without crashing.
The WorkSafe investigation also indentified that the truck had not been serviced for over six months and did not have a seatbelt. The worker had not undergone an induction or received any safety training to understand gear selection to manoeuvre the truck on steep terrain.
The offence of reckless endangerment
Employees have a duty under the OHS Act to take reasonable care for the health and safety of themselves and others who may be affected by their acts or omissions at a workplace.
The offence of reckless endangerment under section 32 OHS Act is more stringent in its characteristics than mere failure to take reasonable care. It is committed when a person recklessly engages in conduct that places another person at a workplace in danger of serious injury. Simply stated, this offence is committed where a person has (or ought reasonably to have) knowledge of the likelihood that death or serious injury may occur but continues to require the activity to occur.
Section 32 applies to corporations, company officers and employees. A breach of section 32 is a serious offence, attracting a maximum penalty for an individual of up to $200,000 or imprisonment for up to five years or both.
In this case, Judge Rizkalla noted that section 32 provides for a five year maximum term of imprisonment “to be imposed in circumstances where there is an injury in a work place, which demands both criminal punishment and serious criminal punishment by way of a term of imprisonment, because of the serious nature of the culpability of the conduct and the consequences involved”.
Her Honour also commented that “parliament has seen fit to impose to this particular charge, a term of imprisonment to deal with significant and serious breaches of duties owed by one worker to another”.
In this case, Her Honour noted that the foreman by directing the worker to drive the truck knowing that the park brake was defective, engaged in conduct which placed the worker in danger of serious injury. That the foreman did not know that this meant that the braking system as a whole was defective did not mean that he was not guilty of the offence – but had he known that, his conduct would have been even more serious.
The approach of the Court when sentencing
The foreman pleaded guilty to reckless conduct endangering persons at the workplace. Judge Rizkalla imposed a 20 month prison sentence, wholly suspended for three years. She noted that if the foreman commits any offence in the next three years for which a prison sentence applies, he will be brought back before the Court to be re-sentenced.
While the company and managing director had also been convicted and fined, Her Honour noted that the offence of the foreman was “a more serious matter because you were the person on site on this particular day, you were the person who was in the position to understand the serious risk of injury should the Mack truck be driven in those circumstances”.
Judge Rizkalla said the supervisor had let the young worker down and she hoped the tragedy of the case would serve as a lesson to others. Her Honour indicated that she would have ordered the foreman to serve a custodial jail sentence had the foreman not entered a plea of guilty, saving costs to the State of Victoria.
Her Honour also had regard to the significant delay of approximately two years between the date of the offence and the date that proceedings were commenced and the total of five years between the offending and the sentence. The Court heard that the stress of having the proceedings hanging over his head for an extended period had been a contributing factor to the breakdown of his de facto relationship and he now had limited contact with his young son.
The Court also heard that the supervisor had difficulty in obtaining employment over the five year period because his criminal record noted the pending charges against him which were akin to charges of “industrial manslaughter”. As a result, the supervisor was forced to obtain work in remote locations.
The Court also heard that the foreman was under considerable financial stress and had to sell the family home to cover his legal costs. Her Honour took those matters into account in favour of the supervisor in the sentence and concluded that the supervisor was a good prospect for rehabilitation and a low prospect of re-offending in the future.
Judge Rizkalla noted that part of the process of the Court in sentencing is to deter others from engaging in similar, reckless conduct and “to send a message to people involved in any occupation whereby their actions may place others at risk that they should take every precaution to ensure the safety of others, other workers who work with them”.
“It is to be hoped that the tragedy of this case may well serve to send a harsh reminder to others in your situation, of the need to exercise care for the safety of others in the work place”, said Judge Rizkalla.
Drilling company and managing director convicted and fined
The company that employed the foreman pleaded guilty in the Victorian County Court in April 2010 to “recklessly endangering a worker”. The company was convicted and fined $750,000 and the company’s managing director was convicted and fined $120,000 for being an officer of a company which breached its obligations under the OHS Act. Both the company and managing director are appealing against the severity of their sentences.
Judge Felicity Hampel commented in those proceedings that “a case such as this is a stark reminder that behind every occupational health and safety prosecution is a real person… someone’s sibling, child, spouse or friend, whose safety and wellbeing should at all times be the paramount concern of every employer”.
WorkSafe Victoria’s Acting Executive Director for Health and Safety at the time, Stan Krpan, noted that “the prosecution was able to prove that through the actions of the company’s personnel, the company was recklessly indifferent to placing the worker at risk of serious injury because he was instructed to use an unsafe truck in particularly dangerous circumstances”.
A further warning for employers, managers and supervisors
We recently reported on other cases where heavy penalties have been imposed for reckless endangerment at work. In a recent case a Victorian Magistrate convicted and sentenced a 21 year old construction worker to a term of imprisonment, to be served by way of a four month intensive corrections order, after he pleaded guilty under section 32 of the OHS Act to recklessly endangering another worker at his workplace. That followed an incident in 2009, when the construction worker fired several nails at an apprentice, hitting and causing blindness to his left eye.
These sentences highlight the willingness of the Courts to impose terms of imprisonment on individuals guilty of engaging in reckless conduct.
The model Work Health and Safety Act includes high penalties for these offences
Under the model Work Health and Safety Act, to come into effect in most Australian jurisdictions from 1 January 2012, this type of “reckless conduct” will be considered a Category 1 offence.
The penalties for Category 1 offences for corporations will be fines of up to $3 million per offence, while the maximum penalty for an individual conducting a business or undertaking or an officer of a business or undertaking will be a fine of up to $600,000 or five years imprisonment or both. Where a worker engages in reckless conduct, the penalty may be a fine of up to $300,000 or five years imprisonment or both.
Lessons for business
Employers should take steps to ensure:
- that all plant is maintained in a safe working condition,
- training and instruction in the safe operation of plant is provided to all workers and that training is relevant to operational requirements,
- tasks are allocated to workers based upon relevant skills and experience,
- safe work polices and processes are reinforced through regular training and communications,
- workers are aware of their legal responsibility to take reasonable care for each other’s safety and the serious consequences for workers who engage in reckless conduct in the workplace,
- a reasonable level of supervision to enable misbehaviour and bad actors to be identified and either counselled or disciplined where appropriate.
Officers of companies, partnerships and associations that carry on a business or undertaking should take reasonable steps to ensure that their organisation has in place policies and procedures for each of these steps to take place. Managers and supervisors should take reasonable care in carrying out their role in ensuring compliance.