Supreme Court of Victoria24 March 2016
Summary of Judgment
DPP v Vibro-Pile [2016] VSCA 55
24 March 2016
The Court of Appeal (Maxwell P, Redlich and Whelan JJA) today dismissed an appeal against conviction by an employer found guilty of breaches of the Occupational Health and Safety Act 2004 (‘OHSA’).
The prosecution followed the collapse of a pile driving machine at a building site in Southbank in May 2011. The builder had engaged Frankipile Australia Pty Ltd (‘Frankipile’) to carry out pile driving work. Frankipile, in turn, had asked a related company, Vibro-Pile (Aust) Pty Ltd (‘Vibro-Pile’), to provide an operator to erect and operate its pile driving machine.
The machine was erected incorrectly. Critical bolts were left out. The machine collapsed and a Frankipile employee was killed.
Conviction
After a trial in the County Court, both companies were convicted on two charges.
The first charge was that the company failed to provide a safe system of work for its employees, by not including in the instruction manual for the pile driving machine a warning of the risk of collapse if it was not erected correctly.
The second charge was that the company failed to provide for its employees the necessary induction, training and supervision to eliminate or reduce the risk of collapse.
On Vibro-Pile’s conviction appeal, the Court concluded that it was well open to the jury to find the charges proved. On the evidence, the Court said, the risk of collapse was real and foreseeable. Of particular significance was what Vibro-Pile knew, or ought to have known, about the lack of training and experience of the operator whose services it provided to Frankipile, and of the Frankipile workers who would be assisting him.
In the Court’s view, it was open to the jury to conclude that the inclusion of an appropriate warning in the manual, and the provision of the necessary induction, training and supervision, would have eliminated or reduced the risk of collapse.
It was also open to the jury to conclude that it was reasonably practicable for Vibro-Pile to have taken those safety measures.
Sentence
The judge in each case imposed a single or “aggregate” fine on both charges. Frankipile was fined $350,000 and Vibro-Pile was fined $100,000. The Director of Public Prosecutions appealed against the inadequacy of both sentences.
The Court today allowed the Director’s appeals and resentenced the companies. In each case, the company was fined $250,000 on the first charge and $500,000 on the second charge.
The Court pointed out that the occurrence of the worker’s death did not, of itself, provide any guidance as to the seriousness of the breach. But the defects in training and supervision were particularly serious nevertheless.
A grave risk to worker safety existed not just for any worker on the rig but also for any worker working on the ground in its vicinity. This was a foreseeable consequence of Vibro-Pile and Frankipile breaching s 21 of the OHSA. If the risk eventuated, the consequences were potentially very grave.
Their Honours continued:
The seriousness with which breaches of s 21 of the OHSA are to be treated is, as the sentencing judge observed, reflected in the maximum penalty of 9000 penalty units, or $1,075,050. The sentencing judge also rightly observed that general deterrence is of particular importance in offending of this kind. The sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.
In mitigation, the sentencing judge properly took into account Vibro-Pile and Frankipile’s prior good safety records, the lack of relevant prior offending, and Frankipile’s evidence of its steps taken since the offending to improve its workplace safety. His Honour found, nevertheless, that neither offender had shown remorse.
In our view, the sentence in each case was below the range reasonably open to the judge. In imposing the sentences he did, the sentencing judge failed to have sufficient regard to the maximum penalty, the nature and gravity of the offences, Vibro-Pile’s and Frankipile’s culpability, and the impact of the offences on the family of (the victim). The sentencing judge failed to give sufficient weight to general deterrence and Vibro-Pile’s and Frankipile’s lack of remorse, and failed to impose a penalty that sufficiently reflected the need for denunciation of these breaches.
NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.
Summary of Judgment –DPP v Vibro-Pile[2016] VSCA 55Page 1 of 3