In brief - Court of Appeal dramatically increases penalty for safety breaches

Two companies convicted of safety breaches have had their fines increased by the Victorian Court of Appeal, from a combined total of $450,000 to a combined total of $1,500,000 following the death of a worker on a building site in Melbourne.

Collapse of section of pile driving rig leads to workplace fatality

A recent decision of the Court of Appeal in Victoria reinforces the need for employers to be vigilant and thorough in their approach to workplace health and safety. In the case DPP v Vibro-Pile (Aust) Pty Ltd & Frankipile Australia Pty Ltd, two companies received an increase in the fines initially imposed from a conviction and sentence in the County Court for a fatal incident in May 2011, when a worker fell approximately 40 metres to his death. The incident involved the collapse of the top section of a pile driving rig at a building site in Southbank in Melbourne.

An employee of Frankipile Australia Pty Ltd was attached with fall protection devices to the top section when it collapsed. The piling rig was being operated by Vibro-Pile. The collapse was caused by a failure to insert particular bolts when erecting the piling rig.

Alleged failure of employers to eliminate or reduce risk

The prosecution alleged that it was reasonably practicable for the employers to have:
  • Identified and documented the risk of collapse
  • Documented the correct procedure for the erection of the piling rig
  • Provided the necessary induction and training for employees
  • Supervised the erection of the piling rig to ensure the correct procedure was followed
According to the prosecution, such measures were suitable and readily available, given what the defendants knew, or ought to have known about the risk.

Both companies found guilty of breaching OHS Act

Both companies entered a plea of not guilty before the County Court of Victoria. The trial proceeded over 17 days. Both companies were found guilty and convicted of breaching section 21 of the Occupational Health and Safety Act of Victoria. The maximum penalty that each company faced was in excess of $1 million. The County Court imposed a fine of $350,000 against Frankipile and an aggregate fine of $100,000 against Vibro-Pile.

The companies appealed against the conviction and fines imposed, while the prosecution appealed against the manifest inadequacy of the fines imposed by the County Court.

Piling companies' safety fines increased to $1.5 million

On the 24 March 2016, the Court of Appeal determined that leave to appeal against the convictions should be refused. The court allowed the prosecution appeal against the inadequate sentences imposed. The resentencing resulted in fines totalling $750,000 against each company.

The Court of Appeal held that the breach consists of the employers' failure to eliminate or reduce a risk to employee safety and the occurrence of a death or injury is of evidentiary significance only. The gravity of a breach of the OSH Act is not measured by the particular consequences of the breach. The court stated:

For example, a very serious breach, involving clear disregard of the safety of workers, might result in only a minor injury - or no injury at all. Conversely, a relatively minor breach could result in a death, in circumstances which could not reasonably have been anticipated.

Health and safety of workers and others should not be put at risk

The duty to protect the health and safety of employees and others in the workplace is expressed in very similar terms in each jurisdiction within Australia and in New Zealand.

The harmonised Work Health and Safety Laws, which were modelled on the Occupational Health and Safety Act in Victoria, have been adopted in Queensland, New South Wales, Tasmania, South Australia, ACT, Northern Territory and Commonwealth locations. Western Australia operates under the Occupational Safety and Health Act which has similar obligations to Victoria.

The Work Health and Safety Act in NSW requires persons conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, that the health and safety of workers and others are not put at risk from work carried out as part of the conduct of the business or undertaking. This requires all employers and business operators to take reasonably practicable steps to identify and assess the availability and suitability of ways to eliminate or minimise the risk.

Reasonably practicable steps to manage the hazards and risks of your business

Adopting a risk-based approach to managing your business will support your workers and executives in providing a safe and productive workplace which will ensure the ongoing profitable viability of your business.

Consulting with your workers regarding the operating hazards and risks and considering the requirements of the Work Health and Safety Regulations, codes of practice in your jurisdiction and relevant Australian standards will provide the knowledge to populate and implement a safety management system which is relevant for your business.

A safety management system that is compliant with AS 4801 is an excellent tool to ensure that you have a safe, productive workforce, so that the risk of injuries and fatalities is minimised and you avoid appearing as a defendant in prosecution proceedings.

Danger of civil actions being taken against you

Employees or others who have been impacted by an incident or by activities of your business or undertaking, to whom you owe a common law duty of care, may commence civil proceedings to obtain significant damages. An alleged failure to comply with the obligations set out in the above safety laws is relied upon to assert an allegation of negligence against employers, principal contractors and occupiers in personal injury proceedings.

Further, contractors involved in a workplace incident may also suffer a detrimental impact which could lead to potential breach of contract proceedings.

Be proactive in your approach to workplace safety

To reduce the potential exposure to your business, it is recommended that you:
  • Identify the hazards and risks of your business or undertaking
  • Consult with workers, contractors and the community
  • Obtain legal advice as to the relevant laws, regulations, codes of practice and AS/NZ standards for your business operations
  • Implement a safety management system which meets best practice

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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