Publications / Work Health and Safety
By Gillian Holmes (Lawyer)
Earlier this month the Supreme Court of Victoria, Court of Appeal (Court) dismissed a long fought appeal, upholding the state’s first conviction for ‘reckless endangerment’.
The Court ruled that the reckless conduct of Orbit Drilling Pty Ltd (Orbit) placed a worker at significant risk of safety, and that Orbit’s managing director Martin Smith had failed as an officer to take ‘reasonable care’.
This decision was eagerly anticipated not only in Victoria, but also in New South Wales and Queensland where, as a result of harmonised workplace laws, similar provisions exist involving the mental element of recklessness and duty owed by officers.
Importantly, this decision sends several serious reminders to organisations to ensure:
- those in supervisory positions are adequately trained, capable and aware of their significant responsibilities
- adequate procedures are in place to ensure plant maintenance and worker training requirements are not overlooked
- proper procedure is enforced by organisations with remote sites and decentralised control, and
- systems are in place to ensure officers are aware of their due diligence requirements and are actively complying with same.
In December 2006 a crew supervisor employed by Orbit at Clonbinane drilling and exaction site, directed a 21 year old employee to drive off-road, down a steep slope in an over-loaded vehicle with defective brakes.
The new recruit had been employed by Orbit for little more than a week and was effectively untrained in the operation of the Mack truck he was instructed to drive.
Although driven slowly, the truck’s brakes were so defective that there was no capacity to stop or maintain control of the vehicle. The truck gathered speed on the decline, became uncontrollable and the driver was thrown from the cab and killed on impact.
A subsequent investigation into the incident found that the brakes were manifestly defective and that both the site manager and deceased’s direct supervisor knew of this. A pre-mobilisation form completed only hours before the incident also identified that the truck had no park brake operating and no functional rear brakes.
Although Victoria is yet to adopt harmonised safety legislation, the current Occupational Health and Safety Act 2004 (Vic) (OHSA) was the framework on which the model laws were created, and has contained the reckless endangerment provision (at section 32), and duty of officers since it was enacted in 2004.
As such the Orbit decision ruled on the mental concept of recklessness which is the key element of Category 1 offences which now apply to the harmonised WHS legislation in the Commonwealth, New South Wales, Queensland and the territories.
The Director of Public Prosecution (DPP) commenced proceedings against Orbit and the company’s managing director alleging the fatality was the result of two separate breaches of the OHSA. Specifically:
- the crew supervisor’s reckless conduct in directing the employee to drive the truck (which for the purpose of the OHSA was vicariously the company’s conduct), and
- the managing director’s failure to ensure Orbit complied with its OHSA duties.
During the proceedings the County Court also heard uncontested evidence by both a professional engineer and expert heavy vehicle mechanic that the brakes were defective, the vehicle was not adequately maintained and servicing was virtually non-existent. Evidence was also led that at the time of the incident the truck was carrying well in excess of the required maximum load.
The County Court considered Orbit guilty of letting business growth and expansion come at the expense of safety, noting the company began with an impressive OHS record and clear procedures, but that these became less of a priority as attention was devoted to operations.
In particular the Judge took the opportunity to spell out this failing, saying the:
‘that the more a company expands, the more remote sites it operates from, the more reliant on site managers and decentralised control, the more it needs to ensure that it has systems, processes, training and accountability that are not dependent on one individual but rather dependent on processes which exist and which are properly and rigidly enforced’.
Both Orbit and Mr Smith pleaded guilty to the charges before the County Court and were fined $750,000 and $120,000 respectively.
In separate proceedings the crew supervisor was also convicted and received a suspended gaol sentence for his role in the incident.
Both defendants appealed the County Court’s decision on the basis that their fines were manifestly excessive, given their cooperation with the DPP, early entry of guilty pleas and the significant steps taken post incident.
Mr Smith also argued that as the sole director and CEO of Orbit, the County Court’s decision had effectively imposed on him a double penalty.
In dismissing the appeal the Court found that Orbit’s culpability was ‘very high indeed’ given the company required the driver to undertake the task, knowing:
- he was inexperienced and untrained
- the truck had defective brakes, and
- the task required him to perform a technically difficult manoeuvre.
Furthermore, the Court found that the comprehensive response by Orbit to the incident demonstrated how easily the tragedy could have been avoided, and how ‘woefully inadequate’ the procedures that existed, were.
In determining Mr Smith’s appeal, the Court dismissed his double penalty argument and drew a clear distinction between the two charges, finding that Orbit was penalised for the act of ‘recklessness’ and Mr Smith for his ‘lack of reasonable care’.
The Court held the evidence showed such serious and systematic failings on the part of Mr Smith which resulted in a young worker’s death. In particular the full bench held the company’s inadequate training and supervision and culpable failure to maintain the vehicle reflected gross negligence on the part of Mr Smith, and were ‘a very great falling short of the standard of care required’ of him as an officer.
The Court also considered Mr Smith’s liability greater by virtue of the fact the deficiencies were capable of straightforward and low-cost rectification. In particular, the Court said it was plainly ‘reasonably practicable’ that a company like Orbit would ensure a new driver was trained, supervised and that its vehicles were safely maintained.
Although a Victorian decision, much can be gleaned from the Orbit decision in other jurisdictions.
In particular this case could be cited as a relevant authority for proceedings of the Work Health and Safety Act 2011 in both New South Wales and Queensland, given the similarities in the section 32 of the OSHA and the ‘Category 1 offence’ provisions in the harmonised legislation.
This is made more likely given the relative scarcity of work health and safety decisions which consider this mental element of recklessness, and the timeliness of this decision.
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Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.