The first company in Victoria to be convicted and fined for recklessly endangering a worker has today lost an appeal against its sentence.
And the Court of Appeal has urged the maximum penalty for the crime be examined "as a matter of urgency" considering much higher penalties for the crime interstate.
In 2010, Orbit Drilling Pty Lty pleaded guilty and was convicted and fined $750,000 over the death of 21-year-old Bradley Alford at Clonbinane.
Company director Martin Smith was also fined $120,000 after he admitted the company had breached it duty of care towards it employees.
Mr Alford was crushed to death on December 9, 2006, when he lost control of the Mack truck he was driving on a steep slope and it became airborne, bounced several times and overturned. He was thrown from the cabin as the truck rolled and was killed on impact.
He had been working for the company — which performed drilling work for mining company Agincourt — for just over a week and had completed only 11 hours of driving lessons.
According to expert evidence in the case, a qualified and properly-trained driver, driving a properly-maintained Mack truck, would have been capable of performing this task. But, tragically, Mr Alford was effectively untrained, and the truck was unroadworthy because its brakes were defective.
Orbit pleaded guilty in the County Court to breaches of the Occupational Health and Safety Act, thereby admitting it had recklessly engaged in conduct which placed Mr Alford in danger of serious injury, but appealed against the sentences handed down, claiming they were manifestly excessive.
The maximum penalty available to the sentencing judge against the company at the time was a fine of $966,870, while the maximum penalty against Mr Smith was a $193,374 fine.
But in handing down judgment today, Victorian Court of Appeal President Chris Maxwell and justices Bernard Bongiorno and Emilios Kyrou unanimously dismissed the appeals, describing the crime as "a very bad instance of a very serious offence".
"By its plea of guilty the company admitted that, at the time the site manager required Mr Alford to drive the truck on the steep slope, the company was aware that requiring him to do so would probably place him in danger of serious injury," the judges ruled.
"Despite being aware of that risk, the company nevertheless proceeded to require him to carry out that task, indifferent to the probable danger. Put simply, the company recklessly disregarded a known risk of serious injury to its employee.
"Each of the matters of which the company was aware – regarding the capability of the driver, the suitability of the truck and the difficulty of the task – heightened the danger to which the company was exposing its employee," the judges ruled.
"It follows, in our view, that the company was aware that it was placing Mr Alford at grave risk, that there was a high likelihood that the danger would eventuate and that, if it did, Mr Alford would be very seriously injured."
They added that the company was "well aware" of its obligations, having previously won awards for OH&S compliance.
"In the circumstances, it almost defies belief that Orbit could knowingly have exposed one of its employees to a risk of serious injury," they said.
The judges also recommended that the adequacy of the maximum penalty be examined "as a matter of urgency, to ensure that it accurately reflects the seriousness of the offence as Parliament conceived of it".
"We note that the corresponding provision in New South Wales (which includes, in addition, reckless exposure to a danger of death) carries a maximum fine of $3 million," they said.