IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	

CR-18-02470

THE QUEEN 		
		
v		
		
UNITED ACCESS PTY LTD		

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JUDGE:	His Honour Judge Johns  	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2020 	
DATE OF SENTENCE:	22 July 2020 	
CASE MAY BE CITED AS:	DPP v United Access Pty Ltd 	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1085		

REASONS FOR SENTENCE
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Catchwords: 	CRIMINAL LAW – Sentencing, Occupational Health and Safety - Failure to provide or maintain safe working environment - Workplace death.

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions 	C. Mandy SC
A. Sim	Director of Public Prosecutions 	
			
For the Accused	R. O’Neill
K. Grinberg	Wotton and Kearney	

HIS HONOUR:

1	On 2 March 2020, United Access Pty Ltd (‘United Access’) was found guilty of two charges contrary to the Occupational Health & Safety Act 2004 (Vic) (‘the Act’). The two offences arose out of an investigation conducted after an incident at the premises of United Access on 11 August 2017.
2	The two charges found proven were: 
a.	That United Access, as an employer failed, so far as was reasonably practicable, to provide or maintain for employees a working environment that was safe and without risks to health (Charge One s21(2)(a) of the Act); and
b.	That United Access, as an employer failed, so far as was reasonably practicable, to ensure that persons other than its employees were not exposed to risks to their health and safety arising from the conduct of the undertaking (Charge Two s23(1) of the Act).
3	Each charge contained particulars that were similar in their terms, and can be summarised in the following way:
a.	United Access is an elevated work platform hiring company.
b.	United Access employees were involved in loading mobile elevated work platforms (‘MEWP’) onto trucks to take to work sites.
c.	United Access also had a number of truck drivers (non-employees) from other companies coming to its site to load mobile elevated work platforms onto vehicles to be transported to site.
d.	There was a risk that if a MEWP was loaded or unloaded onto a vehicle out the front of the site on the road, by either United Access employees, or non-employees visiting the site, that passing motorists may collide with the MEWP as it was being loaded or unloaded.
e.	Employees and non-employees were exposed to the risk of serious injury or death as a result of the failure by United Access to eliminate or reduce the risk of collisions between passing traffic using Malcolm Road and employees loading or unloading MEWPs on the road at the front of the site.
f.	It was reasonably practicable for United Access to provide and maintain a system of work that was safe and without risks to health, specifically: 
i.	having a written system of work which required as a default position that all loading or unloading of MEWP’s occurred within the site; and
ii.	having a system of work that allowed for the loading and unloading of MEWPs from the road, at the front of the site, where loading or unloading within the site was not reasonably practicable; and 
iii.	having a written system of work that defined what additional precautions had to be taken when loading or unloading occurred at the front of the site on the road such as;
•	the use of the truck’s flashing lights and/or hazard lights; and 
•	the use of bollards to highlight the area being used to load or unload; and 
•	the use of bollards to create an exclusion zone between passing traffic and the loading or unloading of equipment.
4	United Access operated its elevated work platform hiring company at 
130 Malcolm Road Braeside.  During the trial the jury were taken on a view and as a result I have a clear understanding of the premises and the size of the different types of elevated work platforms that were routinely collected from the site.
5	Whilst loading large mobile elevated work platforms on-site (in the driveway) would avoid the risk of engaging with traffic on the roadway, it is common ground that there were other risks associated with loading larger equipment in the driveway, making roadside loading preferable from a safety point of view.
6	United Access had been operating at the site for approximately 12 years at the time of the incident which led to the investigation.
7	On 11 August 2017, the deceased James Watt, was employed as a truck driver by Allied Transport Services (‘Allied’).  Allied had been engaged by another company, Coates Hire (‘Coates’), to pick up and deliver a MEWP from United Access.
8	United Access, at the time of the incident, did not really engage with the drivers Coates sent to pick up the units when hiring from United Access.  United Access proceeded on the basis that Coates had their own rules and systems, so United Access did not pass any information about their site rules onto the drivers collecting on behalf of Coates.  United Access also assumed that drivers would be appropriately trained and qualified for the work they were to do.
9	Coates, when hiring from United Access, would be provided with a combination to the key safe so that all drivers they sent could access equipment after hours if necessary.  It was normal practice for the drivers to load and unload their equipment.
10	Craig Murphy had been employed by United Access for nine years at the time of the accident.  He was present when it occurred.  When he loaded MEWPs onto semitrailers, which was a daily occurrence, he would try to avoid ever having any part of the bucket on the road.
11	Mr Murphy’s evidence in essence was that it was necessary to load MEWPs of a certain dimension by the side of the road, but the normal practice was to do so in such a manner that the bucket containing the driver who was operating the platform did not protrude into the line of traffic on the roadway.  
12	It was Mr Murphy’s evidence that the regular practice was that the bucket would not protrude or should not protrude past the outline of the semitrailer vehicle that the platform was being loaded onto.  There was evidence in the trial that a practice known as slewing, which involved the bucket swinging away from the roadside over the nature strip as the platform was driven onto the back of the truck, was the safest manner of loading by the roadside.
13	The deceased, James Watt, arrived at the United Access site at around 5 am on 11 August 2017.  He was there to collect an 86-foot MEWP and load it onto an Allied truck before transporting it to Geelong.
14	Mr Watt’s vehicle was parked immediately in front of the premises on the right-hand side of the United Access driveway as one faced the premises.  Mr Murphy’s semitrailer was parked on the other side of the driveway, effectively behind 
Mr Watt's vehicle and facing the oncoming traffic.  This was done to provide some ‘protection’ for Mr Watt’s manoeuvre.  The driveway to the premises was between Mr Watt’s truck and Mr Murphy’s truck.
15	The incident was captured by CCTV footage.  The footage depicts Mr Watt lowering the boom of the MEWP in the driveway and operating the MEWP from the bucket in the normal fashion.  He can be seen to drive the boom and bucket onto the roadway in front of the property with the body remaining on the driveway.  He was driving bucket first out onto the roadway.
16	As he moved forward onto the roadway the bucket appeared to dip, probably due to the incline of the driveway.  The bucket protruded out beyond the perimeter of Mr Watt’s truck and it was also beyond the perimeter of Mr Murphy’s truck.  The bucket was low enough to be struck by a vehicle that was travelling along the roadway.  The passing vehicle made contact with the bucket.  Mr Watt was ejected from the bucket and sustained serious head injuries.  He died as a result of these injuries in hospital on 11 September 2017.
17	The driver of the vehicle which struck the MEWP, Judy McShane, states that she recalls approaching a truck parked on the left side of the road with lights flashing (Mr Murphy’s truck).  She did not see the MEWP being driven by Mr Watt at any stage.  The only part of the MEWP that could have been visible to her ( and was visible to a driver someway behind her) was the bucket containing Mr Watt and part of the boom.  The rest of the MEWP was obscured by Mr Murphy’s truck.  As Ms McShane passed Mr Murphy’s parked truck she heard a loud bang.
18	The level of visibility at the time of the collision was not entirely clear.  The bucket of the MEWP was not illuminated by lights nor did it have any high visibility paint or markings upon it.  It was elevated above the roadway.  In all of the circumstances, including the distraction of Mr Murphy’s truck, it is understandable how Ms McShane failed to notice the bucket hovering above the roadway.  I have received a victim impact statement from Ms McShane and I have taken that matter into account.
19	Worksafe attended the scene on 11 August 2017 and an improvement notice was issued to require a defined system of work for how and where MEWP’s were to be loaded and unloaded at the workplace.  The Notice suggested that a safe system of work may include; driver competency requirements, designated loading areas within the workplace, and risk controls when loading is required on Malcolm Road such as; traffic management rules, the use of spotters and ensuring that the bucket is not extended out over or into the road.
20	As a result of the improvement notice, United Access implemented a detailed system of work that addressed the risk.
21	Amongst the issues at trial was the evidence that suggested Mr Watt may not have held the appropriate license to drive and load an MEWP of the particular length he did.  Much emphasis was also placed by the defence on the unsafe procedure of loading large mobile elevated work platforms on-site in the driveway.  The prosecution case however was always one of flexibility – if it was not safe to load in the driveway, load on the road, but with safe systems in place.  Further, the prosecution case was that a simple written instruction for non-employees would emphasise the risk of protruding beyond the perimeter of a truck into the line of traffic, and would have highlighted the method employed by Mr Murphy, including the method of slewing to avoid protrusion into the line of traffic.
General Deterrence
22	General deterrence is a significant sentencing factor when dealing with breaches of the Act.  In determining the gravity or seriousness of the offences this court must assess first; the extent of the departure from the duty owed; secondly, the extent of the risk to health and safety thereby created; and, thirdly, the likelihood of the risk of the particular harm resulting.
23	In DPP v Frewstal (2015) 47 VR 660, Priest and Kaye JJAs stated:
“In our opinion, sentencing judges should be guided by the following principles:
(a) First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offence charged.  An accused is punished according to the gravity of the breach of duty owed under the Act, not according to the result or consequences of the breach.
(b) Secondly, the gravity of the breach is measured by two factors – the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.
(c)Thirdly, an assessment of the extent of the risk itself involves consideration of two factors – first, the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others; and second, the potential gravity of the consequences of such an event (in particular, where there is a risk of death or serious injury).
(d) Fourthly, the fact that the breach in a particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.”
Objective seriousness of the breaches
24	The following matters are relevant to my assessment of the objective seriousness of the breaches in this case:
a.	The risk of collision between an MEWP being loaded onto a truck on the roadside and a passing vehicle was an obvious one.
b.	It was a risk that United Access were aware of.
c.	It was a risk that United Access and its employees – in particular Mr Murphy – sought to address by endeavouring to load MEWPs on the vehicles on the roadside in such a manner that no part of the MEWP protruded beyond the perimeter of the truck.  This was not always followed precisely, however.  This involved a process of slewing so that the bucket was swung above the nature strip whilst observing the body of the vehicle drive onto the truck.
d.	This practice, if employed faithfully, was safe so long as it was employed faithfully in every case.
e.	It was commonplace for non-employees attending the site to use a similar method and indeed the thrust of the evidence suggested that it was standard industry practice to do so.
f.	Whilst it was not unreasonable for United Access to expect that non-employees attending the site would be adequately trained, have the right licensing and experience, and adopt best practice – United Access had a duty to ensure so far as practicable that this would occur.  Their obligation in this regard extended to providing a written system of work and written notice, perhaps even in as simple a form as a sign near the key safe, reinforcing that roadside loading was only to occur if it was unsafe to load in the driveway.  If it was to occur, safety measures such as the use of bollards were to be employed and the safe loading practice of slewing to avoid the bucket protruding into the carriageway was to be used.
g.	These measures were relatively inexpensive to implement.  It was their workplace – they had a duty to ensure so far as reasonably practicable that those attending their site and their own employees were aware of the risk and understood the work systems to be adopted.
h.	The risk of collision in all of the circumstances that prevailed at United Access prior to 11 August 2017 was not high, given the usual practice and the experience and expertise of drivers who attended.  It was however, a present and identifiable risk, and tragically on 11 August 2017, the consequences of the risk eventuating were made apparent.  It was also a risk that was relatively inexpensively addressed.
i.	I do not find in all of the circumstances that the breaches represent a ‘wide departure’ as urged by the prosecution.  Rather, a lower mid-range departure when all the variables are considered.
j.	I consider that the breach regarding the duty to non-employees is graver than the extent of the breach in relation to employees.
k.	This is not a case where there was disregard by United Access for the safety of either employees or non-employees.
Matters in Mitigation
25	United Access promptly and emphatically set about implementing systems of work which addressed the risk satisfactorily. 
26	United Access is of previous good character and operated for some 20 years up until the time of the incident.  The company has an excellent safety record prior to this event, and subsequent.  There are no prior matters and prior to 11 August 2017 the company had never received an improvement or prohibition notice.
27	United Access is a family company.  John Wilson is the owner operator and his two sons have been employed in the company.  There was evidence during the trial that Mr Wilson was a leading figure within the MEWP industry and in particular to do with safety.  He has made a significant contribution to safety initiatives in the industry through membership of the liaison committee between Worksafe and the industry body.  United Access regularly contributes to charities and I was provided with documentation evidencing that fact.
28	I accept absolutely that Mr Wilson and United Access sincerely regret the events on 11 August 2017 and of course the unfortunate passing of Mr Watt.
29	I accept that such an event has had a significant traumatic impact upon 
Mr Wilson, his employees and his family.  I accept that United Access remains committed to do everything they can to ensure that no such incident takes place in the future in respect of any employee, contractor or visitor to their site.  I also accept that they remain committed to continuing to contribute to safety initiatives in the industry more broadly.
30	I was told and I accept that further to the steps taken in direct response to the incident, the company took action to review its safety systems more generally.  It engaged a Worksafe licensed training and safety consulting company to review its safety systems and make changes accordingly.  In particular, it implemented an application for reporting issues, near misses and so on, and following up with risk assessments and documenting the implementation of appropriate measures.
31	United Access is appropriately considered to be a small family company.  I heard evidence on the plea from Mr Wilson’s wife, Ms Gina Wilson, which provided a much closer understanding of the origins, development and operation of the business, particularly within the family context.  
32	It was expressive and eloquent evidence and it delivered the message in a better way than can be gained from written material.  The impact upon the Wilson family, not simply Mr John Wilson, but also his sons, as a result of the fatality is very significant.
33	I accept that for a company like United Access the impact of an incident such as the death of Mr Watt is felt in a very real and direct way, such that many of the factors relevant to sentence have already been met.  The factor of general deterrence, however, remains of great importance.
34	I have been told and I accept that the COVID-19 pandemic has seen the turnover of United Access drop by 30 per cent.  This has been due to the cancellation of events which formed a significant part of the hiring business.  I have borne in mind that the impact of the aggregate fine I will impose on this small family company will be much harder felt than if it were applied to a bigger company or indeed a multinational such as ‘Hungry Jacks’, which was involved in one of the cases provided to me.
35	I have been provided with information regarding United Access’ financial position.  It is clear that United Access intend to continue trading and as best they are able to absorb the impact of the fine I now impose.
36	The maximum penalty for each offence is 9,000 penalty units.
37	 I propose to impose an aggregate fine across the charges, given they arise out of the same factual scenario.  I have had regard to the principle of totality.
38	On Charges 1 and Charge 2 United Access Pty Ltd is fined $85,000 with conviction on each charge.
39	Any other matters?
40	COUNSEL 1:  No, Your Honour, thank you.
41	COUNSEL 2:  I seek three months (indistinct words).
42	HIS HONOUR:  Yes, do we still give stays?  I think, I am certainly happy to give a stay of three months if I am able to.
43	COUNSEL 2:  Your Honour certainly still has the power.
44	HIS HONOUR:  Yes, all right.  I will stay payment of that fine for three months.
45	COUNSEL 2:  Please the court.
46	HIS HONOUR:  All right, no other matters?
47	COUNSEL 2:  No. 
48	COUNSEL 1:  No, Your Honour. 
49	HIS HONOUR:  All right, thank you, adjourn the court.
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