Most Read Contributor in Australia, September 2016
A recent decision has highlighted the dire consequences of
employers failing to be proactive in detecting and removing known
risks to health and safety.
In the case, employee Mr Bakerov died as the result of a work
related accident at a sewerage treatment plant, presumed to have
slipped through a dislodged steel slatted grate in the walkway and
Similar walkways at the plant had been reported as problematic
as far back as 2008, the Melbourne County Court heard, with reports
at the time recognising that the consequences of the dislodged
grates included serious injury or fatality due to drowning.
Although the specific problems were remedied, similar
occurrences were reported throughout 2010. In particular, one
report noted that a possible cause of the dislodgement was the
aerated foam from the channel pushing up on the grates.
While various investigations into the accident could not
specifically point to the way in which Mr Bakerov happened to drown
in the channel, it was accepted that he must have fallen through a
dislodged slatted grate.
The company 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 (Vic). Accordingly
it was left to the Judge to determine the appropriate sentence. The
Company faced a potential fine of up to 9000 penalty units which is
After reviewing comparable cases and weighing up any mitigating
factors, the Judge ordered the defendant to pay a fine of $400,000
which would have been $500,000 but for the guilty plea. Moreover
the judgment noted that at the time of Mr Bakerov's death there
were extensive health and safety procedures already in place and as
such specific deterrence (that is, the component of a penalty
designed to focus the attention specifically on the company not to
reoffend) played only a modest role in the Judge's
The Court was particularly concerned by the following:
The fact that there had been a number of reports concerning the
grates which had gone unheeded. While some of the reports related
to checked-shaped grates (as opposed to the offending slatted
grates), the Judge found that these reports should have brought to
the mind of the health and safety supervisors that a similar
occurrence could happen with the slatted grates.
The consequences of a failure to take adequate steps were dire.
The Judge outlined that a guide for sentencing was to look at the
'foreseeable potential consequence' of a failure to take
steps. Before forming the view that the penalty should have been
$400,000, the Judge reviewed three other similar cases:
Director of Public Prosecutions v Amcor Packaging Australia Pty
Ltd  VSCA 219
A fine of $180,000 (maximum penalty: $250,000) was imposed after
a man was crushed by rollers in a paper manufacturing plant. There
had been no safety procedures or safeguards at the time despite two
Director of Public Prosecutions v Nationwide Towing &
Transport Pty Ltd  VSCA 291
The court imposed an aggregate penalty of $450,000 for two
charges (maximum penalty: $966,000) after a man was killed whilst
loading an excavator onto a trailer which did not have the
appropriate surface. There had been previous incidents after which
the company had resolved but failed to fix the issue with the
surface. Moreover, there had been neither safety instruction given
to the man nor any risk assessment conducted.
Director of Public Prosecutions v Coates Hire Operations Pty
Ltd  VSCA 131
The Court of Appeal set aside a fine of $250,000 imposed by the
sentencing judge, and substituted a fine of $500,000 (maximum
penalty: $966,000). The victim was an employee of a contracting
company who was not made aware of the loading procedures for a
truck (a winch was required).
Lessons for Employers
This case highlights the critical importance of employers being
proactive in detecting and removing risks to health and safety. It
also emphasises the importance of spreading information through out
an organisation about a risk to health and safety which may occur
in a similar situation but one which has not been expressly
reviewed, in this case the different types of grates. It is also a
clear example of a Court being prepared to impose a very
significant penalty for a breach of the safety laws in
circumstances where the business should have addressed known
dangers to which its employees were exposed.
DPP v Melbourne Water Corporation  VCC
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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