Suspended sentence for supervisor who recklessly endangered a fellow worker in breach of the OHS Act
Background
A supervisor has been convicted and given a suspended prison sentence after being found guilty under section 32 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) relating to the death of young worker in 2006.
Bradley Alford, a 21 year-old employee of Orbit Drilling Pty Ltd, was directed by his supervisor, Maurice Barton, to drive an overloaded truck down a steep 10 degree slope. Subsequently, the truck lost control and overturned, crushing him to death.
Prior to the incident, Mr Alford had undergone only 11 hours of driver training and had held his truck licence for approximately two weeks. In addition to his inexperience as a truck driver, Mr Alford had not received any induction or safety training. Following the incident, it was discovered by investigators that the truck had no seatbelt, faulty brakes and had not been serviced in over six months. WorkSafe investigators also discovered that Mr Barton was aware of a fault with the parking brake on the truck prior to the Incident. However, Mr Barton claimed he was not aware that the fault with the parking brake meant the truck's rear brakes would also not function properly.
Decision
In the recent sentencing hearing in the Victorian County Court, Judge Margaret Rizkalla sentenced Mr Barton to 20 months in prison, suspended for three years. Mr Barton's sentence is the first prison sentence to be handed down under the Victorian OHS Act for a "duty related" offence (the only other prison sentence handed down under the OHS Act relates to an offence involving the assault of a WorkSafe inspector).
Judge Rizkalla said the young worker had been let down by Mr Barton and emphasised that the suspended sentence meant any offence committed by Mr Barton in the next three years, for which a prison sentence was applicable, would be likely to send him to jail.
In previous court hearings in relation to the same incident, Orbit Drilling became the first company to be convicted under section 32 for recklessly endangering a person at a workplace and was fined A$750,000. In addition, the director of Orbit Drilling, Martin Smith, was also convicted and fined A$120,000 for breaching sections 144 (liability of officers) and 21 (duties of employers) of the OHS Act.
In sentencing Mr Barton, Judge Rizkalla noted that in many respects his offence was a more serious matter than the offences committed by Orbit Drilling and its director as Mr Barton had been the person on the site on the day of the incident and had been the person most appropriate to understand the risk of serious injury should the particular truck be driven in the circumstances of the incident.
Lessons
This case highlights the importance of employers maintaining their plant and equipment adequately and ensuring workers receive adequate training. Furthermore, the severity of the sentence handed down in this case emphasises the increasing willingness of courts in Victoria and other states to impose prison sentences in addition to financial penalties where a high level of culpability attaches to a breach of OHS laws by those in management or supervisory positions.
Managers and supervisors must require their organisations to have in place comprehensive, appropriate and adequate systems of work to ensure all workers undertake the necessary training before commencing work and to ensure that all plant and equipment is adequately maintained. It is now clear that where a reckless failure to do so leads to the serious injury or death of a worker, the courts will not hesitate to impose custodial sentences.
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