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January 2020

Penalty increased for excavator operator

DPP v Stadelmann Enterprises (28 July 2017)

Facts

In 2015, a 17,000kg excavator operated by Stadelmann Enterprises (the Company) came loose after it had been loaded onto a vehicle, almost killing two employees.

In 2016, the Company pleaded guilty to a breach of health and safety laws and was fined $40,000 by the Magistrates’ Court. The Director of Public Prosecutions appealed the fine on the basis that it was manifestly inadequate.

Judgment

The Wangaratta County Court found that the matter warranted a more significant fine due to the Company having no systems in place to judge if machinery was loaded safely, such as weight gauges or positional markings. Further, members of the public were also put at risk of serious injury or death and so the objective seriousness of the incident was much higher than found by the original Judge. The Court increased the fine to $175,000.

Lessons

This decision demonstrates the significant penalties that can be imposed by the Court in matters where the Company cannot demonstrate safe systems of work where there is a clearly foreseeable risk of serious injury. It also highlights that the regulator will enforce its rights to appeal any decision where it considers the penalty imposed by a lower court is manifestly inadequate.

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