By Adam Cooper
Victoria's Education Department has lost its bid for health and safety charges, laid after the death of a seven-year-old boy, to be heard in a court where lower fines would apply if it is found guilty.
The state's workplace regulator charged the Department of Education and Training with health and safety offences over Jovan Talwar's death after his wheelchair tipped and fell from a ramp at Warringa Park School in Hoppers Crossing.
Warringa Park School in Hoppers Crossing.
WorkSafe Victoria alleges Jovan was not under the supervision he required when on November 26, 2018, his wheelchair toppled from a ramp that was either poorly constructed or had not been maintained. He suffered a head injury and died four days later.
Melbourne Magistrates Court was told on Wednesday that a student teacher was supervising Jovan's movement between classrooms and she later told investigators she was not provided with specific information about the special needs of each student.
Jovan Talwar died after a fall at his school.
Warringa Park is a school for students with disabilities.
The Department of Education faces three charges and applied for its case to stay before a magistrate, whereas WorkSafe prosecutors believed it should be heard in the higher County Court. The department is yet to enter a plea.
Each of the charges carries a maximum penalty of 9000 units, which equates to about $1.49 million per charge.
But a magistrate can impose a maximum fine of only 2500 penalty units per charge, worth $413,000 per charge.
Magistrate Pauline Spencer ruled the seriousness of the alleged offending and the sentencing powers available in her court meant the case should be heard by a County Court judge.
"Given the seriousness of these matters and the range available to the [magistrates] court for these offences, then that range might not be adequate," she said.
Ms Spencer said the allegations raised questions over whether there was an adequate system in place for the construction and maintenance of ramps at the school, and whether all staff, aides and trainee teachers were properly trained in supervising the children.
"Those systems were lacking in this case," she ruled.
The court heard the ramp Jovan fell from was not compliant with safety requirements, as it was not flush with the concrete underneath. The department had contracted out the building of the ramp.
WorkSafe alleges the ramp was poorly constructed and not properly maintained.
Ms Spencer said although the department was not "on notice" about the risk it posed before Jovan's fall, there was a "high likelihood" of a fall given the state of the ramp.
"This is a serious matter because it involves the death of a child and Jovan's passing is extremely tragic," the magistrate said.
The department is charged with three counts of failing to ensure, as far as was reasonably practicable, that people other than employees were not exposed to risks to their health or safety.
In charge sheets, WorkSafe alleges the department failed to assess and maintain ramps at the school, that the school should not have allowed a student teacher to supervise Jovan being moved from the classroom and that the failure to instruct and train teachers of students' mobility requirements placed the boy "at risk of death or serious injury".
Jovan's mother watched Wednesday's hearing via a video link and Ms Spencer acknowledged the court case would have been distressing for her.
The case will return to court in March.
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