Work Health and Safety Update
March 16, 2017
DPP v CLM Infrastructure Pty Ltd  VCC 192 (3 March 2017)
The defendant, CLM Infrastructure Pty Ltd (‘CLM’), pleaded guilty to the charge of failing to provide information or instruction contrary to s21(1) and 21(2)(e) of the Occupational Health and Safety Act 2004 (Vic) (‘the OHS Act’).
Section 21 of the OHS Act sets out the duties of employers to employees. Section 21(1) provides that an employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health. Section 21(2) provides that an employer contravenes s21(1) if the employer fails (among other matters) to provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health pursuant to s21(2)(e).
The construction works that were the subject of the proceeding involved a drilling process and the use of a bed borer machine. Employees had drilled successfully before they experienced difficulty in retracting a bore head. At some stage, the machine was turned back on during the ‘break out’ process and pivoted in the direction of a worker, Mr Gorsuch, striking him and causing him to fall against the back of a truck and strike his head before falling into a trench. Mr Gosuch suffered serious head injuries.
No allegations were made in respect of the training provided by CLM, nor of any deficiency in CLM’s systems of work. Rather, CLM’s breach arose out of the fact that neither the Safe Work Method Statement nor the Operating Manual for the machine relevant to the performance of the work specifically addressed safety measures or risks associated with the use of equipment on the machine to perform a ‘break out’ process.
Judge Ryan referred to the cases of Dotmar Epp Pty Ltd v R  VSCA 241 and DPP v Frewstal Pty Ltd  VSCA 266 in identifying the balancing exercise to be undertaken by the Court in considering the gravity or seriousness of a breach measured by reference to its potential consequences, the extent of the defendant’s disregard for the safety of employees (if any), and the risk of the potential consequences of the breach materialising.
His Honour held that the offence did not involve an element of reasonable practicability, but was to be regarded as a strict liability offence, and found that although the seriousness of the consequences of the breach was high, the breach was at the lower end of the scale.
The Court also held that the breach related to ‘documents only’ and, observing that the activity had never occurred before, noted it was outside the parameters of training, supervision or instructions that the employees had received. The conduct of employees was regarded as at the ‘outer level’ of risk foreseeable to CLM, and that there was no evidence of CLM disregarding the safety of its workers. While there was a risk of death or serious injury as a result of the conduct engaged in by the employees, the Court assessed the likelihood of the risk eventuating to be low.
Taking all these matters into account, Judge Ryan fined CLM $50,000 without conviction. A fine of $75,000 would have been imposed by Judge Ryan if CLM had not pleaded guilty at an early stage.
The above case highlights that Victorian courts are willing to impose significant monetary penalties for breaches of s21 of the OHS Act, despite circumstances where the relevant risk of injury eventuating is low, and in circumstances where the defendant can evidence a history of good company safety standards and adequate training and supervision protocols. Organisations are reminded to remain vigilant and address risks with documents such as Safe Work Method Statements and/or Operating Manuals even if such risks may seem remote.
Authored by Brett Weir, Partner and Oliver Lesage, Lawyer, Melbourne.
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