Introduction

In the recent decision of DPP v Coates Hire Operations Pty Ltd [2012] VSCA 131, the Victorian Court of Appeal considered the correct approach in sentencing when a fatality occurs because of a failure to enforce agreed safe methods of working. It was held that such a failure justified an increase in the original fine imposed on an equipment hire company for breaches of the Occupational Health and Safety Act 2004 (Vic) from $250,000 to $500,000.

The Court held that the defendant company, Coates Hire Operations Pty Ltd (Coates), had a high degree of culpability for the death of a subcontracted driver in 2007. The Court agreed with the DPP that the original fine of $250,000, handed down by the County Court against Coates, was “manifestly inadequate” and doubled the fine on appeal (noting that the fine would have been $600,000 if Coates had not entered a plea of guilty). The case provides useful guidance on the factors which should be taken into account in determining the appropriate penalty in safety prosecutions.

The facts

The deceased driver had been loading an electric boom lift onto a semi-trailer tilt tray truck at a Coates depot. Coates’ safety procedures required that all equipment being loaded or unloaded must be connected to trucks by a winch cable. The driver did not follow this procedure and instead drove the boom lift onto the truck while standing in the platform, without a winch cable connected. During the process, the boom lift’s rear wheels (on which the brakes operated) lifted off the ground, and without braking capacity, the boom lift slid back down the tilt tray and rolled over. The driver was crushed under the boom lift’s platform.

Coates’ culpability

The Court found that Coates:

  • had clear knowledge of the risk. For example, Coates had issued a Safety Alert warning workers of this precise risk after a similar incident occurred in 2006, and had been issued with an Improvement Notice in 2004 in relation to training provided to drivers who were loading machinery onto trucks;
  • failed to adequately train and supervise the driver, who had not been given a copy of Coates’ safety procedures, nor inducted in those procedures;
  • failed to monitor compliance with, and enforce, safety procedures by having competent workers on the ground. Coates’ Safety Manager at the time knew that workers were breaching the relevant safety procedures but ignored the lack of compliance. A yardman at the depot had been instructed by his Plant Manager to let drivers load equipment however they chose.

At trial and on the appeal, Coates argued that its culpability should be reduced because it had been “let down” by the failure of its Safety Manager to enforce safety procedures in relation to loading plant onto trucks. The Court of Appeal rejected this submission, and found that where a known disregard of safety procedures is allowed to continue, “it is the employer which has let its employees (and contractors) down, not the other way around”.

Lessons for PCBUs

  • Officers of a PCBU need to ensure they exercise due diligence in ensuring that the PCBU is complying with its WHS legal obligations. This means having a Due Diligence Framework in place to assist officers in ensuring the resourcing, implementation and continuing legal compliance of the PCBU’s Safety Management System (SMS).
  • Regularly review the safety performance of workers with core safety responsibilities, including senior managers and WHS managers, with particular reference to known risks and risks which have been identified in previous dealings with safety regulators.
  • Safety obligations are not static, and your SMS needs to be subject to regular internal and external audits, to ensure that it remains effective, follows or exceeds industry best practice and is legally compliant. WHS legal practitioners can give you assurance of the legal compliance of your SMS.