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January 2020

Workers injured after following unsafe work procedures

Workers injured after following unsafe work procedures

Dotmar EPP Pty Ltd v The Queen (2015)

Facts

Dotmar EPP Pty Ltd engineers plastic products using machine tools, such as routers and lathes, to assist with cutting and drilling. Two of Dotmar’s workers were injured when they followed company procedures that sought to override many of the safety procedures required to operate the machinery.

Dotmar pleaded guilty in the County Court to two charges under the Occupational Health and Safety Act 2004 (Vic) (OHS Act). Both charges concerned failures to provide or maintain plant and systems of work that were, so far as reasonably practicable, safe and without risks to health.

The Court sentenced Dotmar to pay a fine totalling $375,000, which was divided as follows:

  • $300,000 on the first charge, incorrect use of a lathe; and
  • $75,000 on the second charge, misuse of a router.

Dotmar appealed these sentences, contending that they were excessive.

Judgment

In its submissions, Dotmar claimed that the sentencing judge:

  • erred in her assessment of the gravity of the offences;
  • gave too much weight to general deterrence, i.e. sending a message to others that they should not commit a similar offence; and
  • failed to give adequate weight to such matters as:
    • Dotmar’s guilty plea;
    • its lack of prior convictions;
    • the delay in hearing the case (by which time the penalties had increased); and
    • the totality and proportionality of the penalty, i.e. ensuring that the total penalty imposed was proportional to the offence.

However, the Victorian Supreme Court agreed with the County Court’s sentencing procedures and dismissed Dotmar’s appeal.

The Court noted that the penalties could not be considered manifestly excessive. Not only did the first charge (incorrect use of a lathe) take place over a 10-month period, it occurred against a background of several years’ egregious failure to adhere to proper safety procedures in relation to using a lathe.

Counsel for Dotmar also argued that a breach of the OHS Act involving a fatality is always to be treated more seriously for sentencing purposes than a breach that does not result in fatality. Accordingly, Dotmar submitted to the Court that the fine should have been lower because no one was killed.

However, this was rejected by the Court, as such an approach equated the gravity of the consequences of a breach, i.e. whether the breach resulted in death or serious injury, with the gravity or seriousness of the breach.

The Court also provided a list of considerations for determining the gravity or seriousness of the offence. This included:

  • the extent of Dotmar’s departure from their duty of care;
  • the likelihood of the risk resulting in harm; and
  • the likely consequence, i.e. severity, of the risk to workers’ health and safety.

Lessons

This case highlights the importance you must place on safeguarding your machinery and other systems to eliminate or reduce the risk of workers being killed or seriously injured.

The provision of adequate guarding is an elementary safety feature of any machinery with moving parts, and if you seek to override these procedures in favour of a faster and less expensive solution, you will face significant penalties from the court even if you have no prior convictions.

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