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On 9 October 2007, Mr Luke Aaron Murrie, an employee of D&G
Hoists and Cranes Pty Ltd (D&G) was fatally injured when an L
68 pack of crane components slipped while it was being lifted and
repositioned.
The company was prosecuted under the provisions of the
Occupational Safety & Health Act, convicted and substantially
fined.
The directors, Mr Keating and Mr Decesare, were also prosecuted
and convicted in proceedings before a Magistrate. The appeal to the
Supreme Court concerned the conviction and fines imposed upon the
directors.
The conviction was appealed, principally on the grounds that the
directors did not know that an unsafe system of slinging the load
was being used. The evidence before the Magistrate had identified
two methods of slinging such a load, one of which was unsafe. The
directors had claimed that the method which was supposed to be used
was a safe method. However, on the occasion in question, an unsafe
method of slinging had been used and resulted in Mr Murrie's
death.
The case for the prosecution was that even if the directors did
not specifically know that the unsafe method of slinging was being
used at the time, they knew, or ought to have known, that the
unsafe method was used from time to time and that they had been
negligent in failing to take steps to improve work place safety to
avoid the risk.
Justice McKechnie concluded that the Magistrate had not been in
error in convicting the directors on the evidence and dismissed the
appeal against the conviction.
The company had been fined $90,000 and each of the directors
$45,000. The penalties were also appealed on the grounds that they
were manifestly excessive.
Justice McKechnie noted that the penalty imposed on the company
was 22.5% of the total possible penalty and, given the seriousness
of the offence, he was satisfied that it was not manifestly
excessive.
As far as the penalties against the directors were concerned,
His Honour noted that the Magistrate had applied the same arbitrary
percentage (22.5%) in determining the penalty to be imposed upon
them and he considered that such an approach was flawed.
Whilst the fines themselves were not manifestly excessive, His
Honour found that the Magistrate was wrong to conclude that the
fines could not be apportioned as a matter of discretion. As a
result, he found that the fines should be set aside and determined
that a fine of $90,000 should have been apportioned as follows:
D&G - $70,000
Mr Decesare - $10,000
Mr Keating - $10,000
The case illustrates clearly the consequences for a company and
its directors of placing employees at risk in circumstances where
there is some degree of neglect on the part of the company.
The fact that directors are also at risk of conviction for an
offence on the basis of imputed knowledge is equally significant.
In this case, the consequences in terms of penalty have been
ameliorated to some extent by the appeal court's decision.
However, in future cases, there is no guarantee that a
Magistrate's approach at first instance will reflect that
moderation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
