Courts get tougher on work deaths

Cameron Hannebery and Kathryn Bion, of law firm Deacons, say several sentences handed down in the past 12 months demonstrate a deliberate and significant increase in fines imposed for breaches of the Occupational Health and Safety Act where a fatality is involved.The current OHS Act was introduced by the state government in 2004, and one of its major changes was a substantial increase in penalties for safety breaches. The maximum penalty under the act is now over $900,000, compared to a maximum of $250,000 under the previous legislation dating back to 1985.“As prosecutions for breaches of the new act are only now reaching their conclusion, a pattern has emerged illustrating a willingness by the judiciary to impose significant fines under the new penalty regime, particularly for those breaches resulting in fatalities,” Hannebery and Bion say.The first employer sentenced for an offence under the new act was Star Track Express, fined $200,000 in the Victorian County Court for failing to maintain a safe and healthy working environment.The charge related to the death of a forklift operator. The company had hired a high-mast forklift, and the operator was killed when the mast struck an overhead beam and the machine rolled on to its side.Hannebery and Bion say the judge in sentencing referred to a number of aggravating factors: an inadequate response to a similar event only a day earlier, failure to enforce the wearing of seatbelts and failure to enforce restrictions on where the forklift was operated.In the County Court, Camden Neon was fined $300,000 after pleading guilty to a charge relating to the death of an employee who was electrocuted while replacing floodlight globes at a car yard. The judge in the case identified aggravating features including “minimal, if any” instructions to employees and their exposure to an obvious and foreseeable hazard.In the highest penalty referred to in the study, Fosters Australia was fined a total of $1.125 million – $562,000 on each of two counts – over the death of an employee who was trapped in a heavy steel door at Melbourne’s Abbotsford brewery. The judge in the County Court noted that a similar crushing incident had occurred at the brewery in 2002, four years before the fatality. The company had responded by installing guarding on the machine where the original incident occurred, but took no action on the other machine.Giving reasons for the sentencing, Judge Jane Campton indicated the total fine would have been $1.5 million if the company had not pleaded guilty and that the primary consideration when deciding sentences in such cases was “general deterrence”.

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