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IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01816
DIRECTOR OF PUBLIC PROSECUTIONS
V
MELBOURNE WATER CORPORATION
--JUDGE:
HIS HONOUR JUDGE O'NEILL
WHERE HELD:
Melbourne
DATE OF HEARING:
20 February 2014
DATE OF SENTENCE:
27 February 2014
CASE MAY BE CITED AS:
DPP v Melbourne Water Corporation
MEDIUM NEUTRAL CITATION:
[2014] VCC
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
CRIMINAL LAW
Sentence – breach by a corporation of s21(1) and s21(2)(c) of the
Occupational Health and Safety Act 2004 – death of worker falling
through a displaced grate upon a walkway – previous instances of
grate being displaced.
Occupational Health and Safety Act 2004; Sentencing Act 1991
Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd
[2005] VSCA 219; Director of Public Prosecutions v Nationwide Towing
& Transport Pty Ltd [2011] VSCA 291; Director of Public Prosecutions v
Coates Hire Operations Pty Ltd [2012] VSCA 131
Conviction and fine of $400,000
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APPEARANCES:
Counsel
Solicitors
For the DPP
Mr M Tovey QC
Solicitor for the Office of
Public Prosecutions
For the Accused
Ms A Fox
Allens Linklaters
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
!Und efined Boo km ar k, I
HIS HONOUR:
1
Melbourne Water Corporation (“Melbourne Water”) has pleaded guilty to one
charge of failing to keep its workplace safe and without risks to health
pursuant to s21 of the Occupational Health and Safety Act 2004 (“the Act”).
The maximum penalty for a breach of the section is 9,000 penalty units, or
$1,099,260.
Circumstances of offending
2
The circumstances surrounding the death of Mr Tim Bakerov and the
circumstances of the offending by Melbourne Water are set forth in the
Summary of Prosecution Opening, which I adopt.
3
It should be said at the outset that whatever findings I make and whatever
penalty I impose, little of what was said in the course of the plea hearing, and
of what I have to say today will give much solace or comfort to Mrs Bakerov
and her daughters, given the tragic circumstances of the death of their
husband and father. He was clearly, from the material which I have read, in
particular the Victim Impact Statement of Mrs Bakerov, a much-loved and
revered family member, friend to many and a respected work colleague by all
at Melbourne Water and Ecowise Australia Pty Ltd. Many will live with the
great sadness of his passing at too young an age. I should also say I accept
from Ms Fox, counsel for Melbourne Water that all from that organisation, both
management and workers, were shocked by and deeply regret his death in
the course of his work duties on 1 December 2011.
4
Melbourne Water is a very large organisation, responsible for the removal and
treatment of almost all of Melbourne’s sewerage and for the management,
protection and control of Melbourne’s water systems.
5
Mr Bakerov worked at Melbourne Water’s sewerage treatment plant at
Bangholme (“the plant”). In fact he was employed by a company, Ecowise
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DPP v Melbourne Water Corporation
Australia Pty Ltd and carried out biological analysis work at the plant. For the
purposes of the Act, he is regarded as an employee of Melbourne Water.
6
At the plant, there were various concrete walkways constructed over Return
Activated Sludge Channels (“the channels”).
On part of one walkway a
number of steel slatted grates (“slatted grates”) were embedded in grooves in
the walkway, and used to gain access to the channel beneath.
7
On other walkways, other steel grates, made of checker plate (“checker plate
grates”) were used. I was informed that the checker plate grates were usually
secured to the walkways by bolts or other fixation devices.
It would also
appear that on occasions the slatted grates had checker plates applied to the
upper portion.
8
As early as August 2008 there was a report that both slatted and checker
plate grates had become dislodged. An incident report at the time said:
“Excess foaming in the RAS channel has caused the [sic] several metal
covers to dislodge…it is possible to step from the stairs and fall into the
RAS channel. This should it occur would result in very serious injury and
possible fatality due to drowning.”
9
As a result, new checker plate grates were bolted to the concrete. Further, on
a number of occasions in 2010, grates again become dislodged or were
unsecured. On one occasion, this was caused by aerated foam from the
channels flowing up to and through the grates. These were the subject of
specific reports. In December 2011, an employee of a contractor working at
the plant said that some twelve months earlier, two grates had become
dislodged, one of them a slatted grate in the same area where the incident
involving Mr Bakerov occurred. On that same earlier day about 200 metres
away, the same employee observed another slatted grate missing from its
position. The employee may have been referring to the same incidents
reported in 2010.
10
VCC:AS
It is unclear on precisely how many occasions from 2008 there were reports of
2
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DPP v Melbourne Water Corporation
grates of various types either missing, or displaced from the grooves in the
walkways.
I accept that while not a regular occurrence, it occurred on a
sufficient number of occasions that it ought to have prompted those
responsible for occupational health and safety to take steps to ensure slatted
grates were properly secured. As events subsequently showed, it was a
simple and inexpensive task to secure them to the concrete.
11
In the early hours of 1 December 2011, Mr Bakerov went about his duties of
obtaining samples from tanks and channels and returning them to the
laboratory. It was noticed that he had not returned and investigations showed
a slatted grate was missing from a walkway. Each grate is approximately 800
millimetres square and weighs approximately 12.5 kilograms. Mr Bakerov’s
body was subsequently recovered from the channel. Also in the channel was
a slatted grate. Two other grates were found in channels some distance away.
12
Various investigations were conducted as to what had occurred and while not
conclusive, it would appear Mr Bakerov either slipped and fell into the hole
created by the missing grate, or possibly was attempting to return a misplaced
grate to its proper position when its weight or the course of the aerated foam
in the channel, pulled him into it.
13
Whatever the precise circumstances surrounding the incident, it is
acknowledged by Melbourne Water there was a causal link between the
missing, misplaced or unsecured grate, and his fall and death.
14
Subsequently, an improvement notice was issued by a WorkSafe inspector,
requiring the grate to be secured and this, as with other grates at the plant,
was attended to promptly.
15
I accept that around the time of the incident, Melbourne Water had an
extensive health and safety management system at the plant. This had been
the subject of internal and external audit. I accept there was an inspection
and monitoring system along the walkways in the area.
VCC:AS
3
It is indeed
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DPP v Melbourne Water Corporation
disappointing, even tragic, that given such a system, those in occupational
health and safety roles had not seen fit to secure the grates, given the
previous instances of them having been found missing or misplaced.
16
I was informed by Ms Fox that officers of Melbourne Water were of the view
that the slatted grates were secure in their grooves under their own weight,
given any rise in foam from the channel would pass through the slats. This
view stands in stark contrast to the earlier incidents where the plates had
been missing or displaced.
Impact of the offending
17
I have already referred to the Victim Impact Statement of Mrs Bakerov. It is a
comprehensive and clear statement of the tragic affect upon herself and her
daughters of the loss of Mr Bakerov. I accept without reservation the deep
grief and loss she and her family feel. It is likely this will continue for the rest
of their lives.
Sentencing considerations
18
I accept Melbourne Water pleaded guilty to the charge at the earliest
opportunity.
I accept further it was co-operative in all respects with the
authorities and with subsequent investigations.
19
I note Melbourne Water has no prior convictions for this or any similar
offending, and has not come to the notice of the relevant authorities since. I
accept that within a short space of time, it took steps to ensure all grates at
the plant, were rendered safe, and in addition, undertook an extensive safety
audit.
It directed a range of further training, maintenance and inspection
procedures focussed upon safety.
It published the circumstances of the
incident, and the steps it had taken, to other water authorities. I note many
persons in senior management at the corporation were present in court,
reflecting the seriousness with which the death of Mr Bakerov, and this
prosecution, were taken.
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DPP v Melbourne Water Corporation
20
I accept the plea of Ms Fox that specific deterrence has only a modest role to
play as a sentencing consideration, given the safety procedures in place prior
to the incident, and the extensive steps taken subsequently.
21
The authorities have referred to the importance of general deterrence as a
sentencing consideration. In the modern work environment, there is a clear
duty upon employers to take proactive steps to ensure those who work within
their premises are provided with safe premises and a safe system of work.
22
There are two aspects of the failures of Melbourne Water relating to the death
of Mr Bakerov that are of particular significance. The first is that there were a
number of incidents going back three years where there were clear reports of
missing or displaced grates on the walkways. It is true that not all related to
slatted grates but even those related to checker plate grates ought to have
brought to the mind of those in charge of health and safety that
notwithstanding the different construction of the grates, there was the real
prospect that the slatted grates would become dislodged, thereby creating a
significant hazard. Despite the evidence of reports on these prior occasions,
no steps were taken to investigate the risk of slatted grates becoming
dislodged, and no consequent steps taken to secure them. In my view, this
was clear and substantial failure, in particular in a workplace where there were
considerable hazards, and occupational health and safety matters were said
to be important.
23
The second significant issue in my view is that the potential consequence of
the failure to take adequate steps to properly secure the grates, was dire. A
missing or displaced grate in this plant with hazards such as water courses
and channels, would likely result, to anyone who gave the matter a moment’s
thought, in the death of a worker by drowning, if he stood upon an uncovered
hole, or attempted to lift the heavy grate back into place. Tragically, in this
case, that indeed occurred.
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DPP v Melbourne Water Corporation
24
As was said in Director of Public Prosecutions v Amcor Packaging Australia
Pty Ltd:1
“When determining the appropriate penalty in a case of the breach of a
statutory duty imposed for the purpose of protecting the lives and well
being of those who may be affected by the breach, the foreseeable
potential consequences must be taken into account as it is the
avoidance of those consequences which, when considering the
objective seriousness of the offence, constitutes the raison d’être for the
establishment of the legislated regime in the first place. To a substantial
extent the seriousness of a breach must be assessed by reference to
those potential consequences and the measure of evidenced disregard
concerning the safety of employees in the circumstances. … .”
25
Ms Fox submitted that in assessing the seriousness of the breach in the
present case, it ought be regarded in the lower to middle category.
26
I was taken to a number of authorities where the Court of Appeal has imposed
fines following breaches of the Occupational Health and Safety Act 2004
leading to the death of a worker.
27
In Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd,2 a
worker lost his life when he was dragged into very large rollers on a paper
manufacturing machine.
There was no guard over the rollers, he was
provided with no safety instruction as to operation of the machine, and there
was no safety manual nor safety procedure. There had been two earlier risk
assessments which documented entanglement in the rollers as a hazard, and
one prior incident of a related nature. The company had two prior offences,
although their significance was regarded as minor. The Court imposed fines
of $180,000 in respect of each of two offences. The maximum penalty at the
time was $250,000 per offence.
28
In Director of Public Prosecutions v Nationwide Towing & Transport Pty Ltd,3
the Court considered the death of a worker as a result of a large excavator
coming off a trailer. The trailer was inappropriate to carry the machinery as it
1
2
3
VCC:AS
[2005] VSCA 219
Supra
[2011] VSCA 291
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DPP v Melbourne Water Corporation
was too narrow, and had the wrong surface. There had been a prior similar
incident as a result of which the company had undertaken to use appropriate
trailers with rubber matting. Those steps were not taken. In addition, there
was no risk assessment and no instructional material nor adequate training
provided to the worker.
The Court approved an aggregate penalty of
$450,000 in respect of two charges imposed by the sentencing judge. The
maximum penalty at the time was $966,000.
29
In Director of Public Prosecutions v Coates Hire Operations Pty Ltd,4 the
Court heard the Director’s appeal where a worker was killed while loading an
elevated work platform onto a truck. The loading, according to a specific
written safety procedure, was meant to have been undertaken by a winch
cable. The worker involved, an employee of a contracting company, was not
made aware of the safety procedure, was given no induction as to its
operation, and was not aware that the work was meant to have been carried
out by winch. The Court of Appeal set aside a fine of $250,000 imposed by
the sentencing judge, and substituted a fine of $500,000.
The maximum
penalty at the time was $966,000.
30
It is impossible to map both serious and mitigating features in respect of the
sentences in these cases and compare them with those in the current matter.
Each case must be determined upon its own facts and circumstances.
Nonetheless, the cases provide a general guide as to the level of fines to be
imposed. I accept that the present case does not have some features of
those other cases, including the failure to provide guards where the risk was
obvious in the Amcor Case, the use of an inappropriate equipment in
circumstances where there had been a similar prior incident, such as in the
Nationwide Case and the complete failure to instruct an employee on an
established safety procedure, as in Coates Hire. Nonetheless, by reason of
the matters to which I have earlier referred, in particular the earlier reports
4
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[2012] VSCA 131
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DPP v Melbourne Water Corporation
over three years of missing or displaced grates and further, of the clear risk of
death to a worker should he fall into a channel through a hole left by a
dislodged grate, I regard the offending as serious and, so far as one is able to
categorise such seriousness, I would not regard it in the lower range, nor in
the highest range. I would regard it as something in at least the middle range.
Sentence to be imposed
31
Having regard to all of the matters to which I have referred, I impose the
following sentence:
32
On the charge of failing to maintain a workplace that is safe and without risks
to health, Melbourne Water Corporation is convicted and ordered to pay a fine
of $400,000 (four hundred thousand dollars).
33
Pursuant to s6AAA of the Sentencing Act 1991, I state that but for the plea of
guilty, I would have imposed a fine of $500,000.
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DPP v Melbourne Water Corporation