Successful Prosecution for Reckless Endangerment - Orbit Director Martin Smith Fined $120,000 Company Fined $750,000

Sue Bottrell
Lawyer – Piper Alderman

On 10 April 2010 County Court, Judge Felicity Hampel handed down judgement in a prosecution by WorkSafe Victoria of Orbit Drilling and its Managing Director Martin Smith under section 32 of the OHS Act (Vic) 2004 for recklessly endangering a person at work, after both pleaded guilty to recklessly endangering the health and safety of employee, 21 year old Bradley Alford.

After only 11 hours of training Alford obtained his heavy riggers drivers licence. A week later he was employed by Orbit Drilling and commenced working on a mining site in Victoria. On 9 December 2006 Alford was instructed to drive a heavily loaded truck down a steep slope, with no road, and reverse onto a drilling pad.

The truck had not been serviced since May 2006, had defective brakes (including no operating park brake and no effective rear brakes). The combination of the gradient of the slope, weight of the load and severity of the defect in the rear brakes meant that the truck no longer had the capacity to stop. Smith and Site Supervisor knew the brakes were not working. Alford drove the truck down the slope as instructed but due to the faulty brakes the truck gathered speed and continued down the slope, past the pad, and into a gully where it overturned. Alford was thrown out and killed.

In sentencing Judge Hampel highlighted the seriousness of the offences and;

1. the failures to induct and supervise Alford, an inexperienced worker, and
2. the recklessness of Orbit and its Managing Director in allowing the continued use of the truck knowing the brakes were defective and
3. she noted that Alford had died as a as a direct result of these failures

In his review of the OHS Act 1985 Chris Maxwell QC rejected the introduction of the industrial manslaughter defence. Maxwell maintained that the concept of manslaughter did not sit with the focus and purpose of OHS legislation, which is the elimination or prevention of risk, whether or not that risk results in an injury. By contrast the offence of manslaughter requires a certain outcome to have occurred, namely the death of another person.

The duty under section 32 requires foresight of the probability of or likelihood of the consequences of the contemplated act or omission. The introduction of the section also recognises the need to punish and deter conduct in the workplace which has a high level of culpability and places those in the workplace at risk of serious injury due to the recklessness of others. It ensures that duty holders are held accountable when a level of knowledge about serious risk is present but ignored.

Judge Hampel highlighted that the gravity of a section 32 offence is to be assessed by reference to a particular state of mind. In this case that was the knowledge that serious injury would probably result from directing an inexperienced, unsupervised and untrained driver to drive an inadequately maintained vehicle, carrying a heavy load, known to have defective brakes down a steep off road slope. She also commented that the grief of Alford's family at his death was compounded by the knowledge that the incident was avoidable. The offence of reckless endangerment carries a maximum penalty of $1,051,380 and or 5 years imprisonment. Orbit Drilling was fined $750,000.00 with Smith being fined $120,000.00.

Now that a prosecution has been successfully completed and a significant sentence handed down, there is an increased likelihood of WorkSafe Victoria commencing further prosecutions of people who demonstrate conduct which recklessly endangers those in the workplace.