Workplace
Relations and
Safety
28 May 2012
Supreme reckoning – court hands down
first reckless endangerment sentence
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
Focus
• 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.
Facts
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.
BRISBANE
Level 11 66 Eagle Street Brisbane QLD 4000
GPO Box 1855 Brisbane QLD 4001 Australia
Telephone +61 7 3233 8888 Fax +61 7 3229 9949
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 Proceedings
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.
SYDNEY
Level 16 55 Hunter Street Sydney NSW 2000
GPO Box 462 Sydney NSW 2001 Australia
Telephone +61 2 9270 8600 Fax +61 2 9270 8699
NEWCASTLE
Level 4 251 Wharf Road Newcastle NSW 2300
PO Box 394 Newcastle NSW 2300 Australia
Telephone +61 2 4924 8900 Fax +61 2 4924 8999
www.mccullough.com.au
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.
The Appeal
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.
The Findings
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.
Further information
For further information on this decision and its
implications for your business please contact:
Jeremy Kennedy on +61 2 4924 8909
Cameron Dean on +61 7 3233 8619
For updates on developments in relation to
workplace relations and safety law link in with
Jeremy Kennedy LinkedIn, subscribe to Workplace
Health & Safety Lawyer discussion group on
LinkedIn or follow Jeremy on Twitter @WHSLawyer.
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.