A Victorian employer and its director who were fined heavily after a newly-recruited and untrained worker was "knowingly exposed" to grave danger - which led to his death - have failed to have their penalties reduced in the State Court of Appeal.
In December 2006, an Orbit Drilling Pty Ltd supervisor directed a 21-year-old employee to drive a heavily-loaded truck with defective brakes down an extremely steep off-road hill.
The worker, who had been with the company for little more than a week, and had limited driving experience, lost control of the vehicle and died when it overturned.
Orbit Drilling became the first entity to be convicted for recklessly endangering a worker under s32 of the Victorian Occupational Health and Safety Act 2004.
It pleaded guilty and was fined $750,000.
Its managing director, Martin John Smith, was also charged over the incident, and fined $120,000 after pleading guilty to breaching s144 (liability of officers) and s21 (duties of employers) of the Act.
In the proceedings at hand, the employer and the director contended that their sentences were manifestly excessive because they had entered early guilty pleas, were first offenders, and had taken "very significant steps" to improve their safety standards after the incident.
The employer also argued that as Smith was its founder and sole director, the trial judge had effectively imposed a "double penalty".
But Court of Appeal Justices Chris Maxwell, Bernard Bongiourno and Emilios Kyrou found the employer and director's offences were "quite distinct".
"Orbit was to be punished for its act of recklessness in requiring [the worker] to drive the unsafe truck," they said.
"Mr Smith, on the other hand, was to be punished for his own lack of reasonable care in failing to ensure that the company established and maintained safe systems of work."
The Court found that the employer was "aware that it was placing [the worker] at grave risk, that there was a high likelihood that the danger would eventuate and that, if it did, [the worker] would be very seriously injured".
However, the bench went on to find that the director's culpability was greater "by virtue of the fact that [the] deficiencies were capable of straightforward and low-cost rectification".
"To expect a company like Orbit to ensure that a new driver was appropriately trained and supervised, and that its trucks were maintained in a safe and roadworthy condition, is to do no more than state the minimum conditions for the safe conduct of this business.
"The appeals must be dismissed."
The supervisor who instructed the worker to drive down the hill received a suspended prison sentence for his role in the incident in October 2011 proceedings.
Orbit Drilling Pty Ltd v The Queen; Smith v The Queen [2012] VSCA 82 (3 May 2012)
