Key points

• Proof of a breach of the Occupational Health and Safety Act 2004 (Vic) does not require proof that the breach caused actual harm to any person.

• The offences created by the Act are risk-based, and not outcome-based, offences.

• The gravity of the outcome is however directly relevant to sentencing.

Facts

In late May 2011, Frankipile had been engaged to perform piling work at a building site in Southbank, Melbourne. For the purposes of performing the work, Frankipile had brought a pile drilling machine, known as a Fundex 3500, to the site.

Frankipile requested Vibro-Pile provide a worker to perform the piling work at the site on the Fundex Machine. Vibro-Pile arranged for a Fundex operator, Mr WT, to perform the work. Vibro-Pile engaged Mr WT because it believed that he was highly experienced in operating the Fundex 3500.

In the course of rigging the Fundex for use, a length of part of the machine can be adjusted by the addition or subtraction of sections of varying lengths. Each section is fastened to those sections above and below it by means of an extension which is secured by being bolted into the rig.

On the afternoon of 27 May 2016, Mr WT was asked to attach a 1.8 metre section to an extension of the rig. This section required 16 bolts to attach it securely to the rig, however, Mr WT and his assistant only used six bolts. This was because Mr WT mistakenly believed that the other 10 bolts were unnecessary.

Importantly:

• Mr WT had never had any practical training in erecting the rig to its full height or, in particular, installing the 1.8 metre section, and had never seen it done.

• Mr WT was not supervised during the fitting of the extension.

• The operating manual for the Fundex machine, prepared and maintained by Vibro-Pile, was deficient in that it failed to say that the rig would collapse if there was a failure to insert all of the bolts, and failed to set out a procedure for correctly attaching the 1.8 metre section to the rig.

The following day, the 1.8 metre section of a piling rig being operated by Mr WT collapsed because of the failure to insert the requisite number of bolts.

Mr S, an employee of Frankipile, was attached by fall protection devices to the top of the section that collapsed. He fell about 40 metres, sustained extensive injuries, and died at the scene.

Charges

Vibro-Pile and Frankipile were both charged with offences under the Occupational Health and Safety Act 2004 (Vic) (OHS Act), namely that they had:

• failed to identify the hazard that the piling rig would collapse if all of the 18 bolts were not inserted, and accordingly failed to control the risk by ensuring that there was a documented procedure for safely attaching the extension; and

• failed to induct/train relevant employees in the safe attachment of the extension, and failed to supervise the attachment of the extension.

Frankipile and Vibro-Pile were both convicted of these charges and were fined $350,000 and $100,000 respectively. The Director of Public Prosecutions (DPP) appealed against each of the sentences on the ground of manifest inadequacy.

The appeal and sentencing

The Court of Appeal allowed both appeals by the DPP and ordered that Frankipile and Vibro-Pile each pay a revised fine of $750,000.

In overturning the original sentence, the court focused on two issues: the correct approach to assessing culpability, and the relevance of the injury to sentencing.

Assessing culpability

Although it was clear that actual harm had been sustained in this case, the court held that the OHS Act does not require proof that the breach caused actual harm to any person. The offences created by the OHS Act are risk-based offences rather than outcome-based. This means that a breach of the OHS Act will flow from an employer’s failure to eliminate or reduce a risk to employee safety – whether the specific risk results in an injury is unnecessary to establish a breach, and is of evidentiary significance only.

The effect of this is that the WorkSafe authority, the regulator responsible for prosecuting an alleged breach of the OHS Act, does not need to prove that the employer’s breach “caused” an accident. Rather, the prosecution needs only establish that:

• there was a risk to employee health and safety;

• the measures identified as necessary would have eliminated or reduced the risk (as the case may be); and

• it was “reasonably practicable” in the circumstances for the employer to have taken those measures.

Assessing sentencing

While this decision makes it clear that the consequences of a safety breach are irrelevant to establishing criminal liability under the OHS Act, it is one of the factors which must be taken into account when assessing the sentence to be imposed. The Sentencing Act 1991 (Vic) requires the court to consider the impact of the breach on those persons who suffer loss and damage as a “direct result” of the offending.

In this case, the Court agreed with the DPP that the original sentences imposed on Frankipile and Vibro-Pile were inadequate, considering the loss of life resulting from the safety breaches and the impact on the family of Mr S.

Bottom line for employers

• When a court is required to assess culpability, it will not focus on the cause or gravity of the result — the focus will be on the risk and whether the employer has applied reasonable means of addressing the risk.

• However, the gravity of the consequences will be relevant when assessing the appropriate sentence.