The Federal Court has, on 22 May 2015, handed down one of the heaviest penalties seen in Australia for a breach of occupational health and safety laws.
Transpacific Industries Pty Ltd (Transpacific) is a large company (it employs in excess of 4,200 people) which owns a business known as Cleanaway, providing garbage collection and disposal services in Western Australia. Mr Aaron Meotti (Mr Meotti) was an employee of Transpacific, engaged to drive a garbage collection and disposal truck which was owned by Transpacific.
Being a licensed self-insurer under the Comcare scheme (pursuant to the Safety Rehabilitation and Compensation Act 1988), Transpacific was subject to the now-repealed Commonwealth Occupational Health and Safety Act 1991.
On 28 February 2011, Mr Meotti was driving the truck at approximately 70km/h on West Swan Road in Caversham. There was a stationary van in Mr Meotti’s lane which only became visible when the car in front of Mr Meotti suddenly pulled out to avoid it. Mr Meotti applied the brakes and the truck skidded 60 metres, hitting the stationary van and continuing to skid into the opposite lane. It there hit a wagon travelling in the opposite direction. The driver of the van was hospitalised and suffers ongoing neck pain. The driver of the wagon was killed.
It emerged in the subsequent investigation that the automatic slack adjusters, which compensate for wear in the brake pads, were not fastened properly. If they had been, the truck would have been able to brake in time to avoid hitting either the van or the wagon.
Not only was this defect not picked up during numerous mechanical inspections prior to the accident, it was also missed on three inspections by Transpacific after the accident. The problem was not fixed until Transpacific were issued with an improvement notice, requiring it to ensure all brakes on its heavy vehicles were serviced and operating in accordance with manufacturer’s instructions.
Comcare commenced a prosecution against Transpacific alleging a failure to take all reasonably practicable steps to protect the health and safety of its employees and those members of the public who may be exposed to risks as a result of its activities. The first allegation related to the incident itself. The second to fourth allegations related to the failure to identify the brake problem on each occasion after the incident.
Transpacific disputed some of the details but, in essence, admitted breaches as alleged. In effect, it was accepted that there was not a sufficient process in place for ensuring that the mechanics in charge of testing the brakes were being instructed correctly and properly supervised.
Transpacific argued that all four breaches were part of the same course of conduct such that, in assessing a penalty, they needed to be treated as one breach. Justice Michael Barker found that the incident itself should be treated separately to the subsequent failures to identify the defect, but that those three failures should be treated as a single course of conduct.
Justice Barker then applied a penalty of $181,500 to each course of conduct, being a total record penalty of $363,000. This represented 75% of the maximum penalty that could have been applied by the Federal Court. Transpacific was also ordered to pay Comcare’s costs.
The Justice stressed the importance of general and specific deterrence. The breaches were not deliberate but nor were they the result of momentary inadvertence. They had arisen due to the failure by Transpacific to have an adequate system in place to ensure incidents such as this could not occur. Whilst it was said that the purpose of a penalty in this context was not to provide retribution or compensation for the victims, the fact that one person was injured and another killed highlighted the seriousness of the risk taken when safe systems are not observed.
This case highlights the need for a high level of attention to detail when designing and implementing safety systems. Transatlantic did have a system in place to check “the brakes” of its vehicles on a regular basis – the problem is that the particular mechanics engaged to check “the brakes” did not also check the slack adjusters as part of this inspection, and there were no systems in place to identify such oversights. This simple (but ongoing) mistake resulted in the death of one person and the injury of another, as well as being (presumably) extremely traumatic for Mr Meotti, particularly as Transpacific attempted, unsuccessfully, to at least partially blame him for the accident.
For more information on this paper or any Employment and Workplace Safety matter please contact partner Tom Darbyshire on (08) 9321 3755.
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