Recent international OH&S Developments: A Sign of Things to Come?

Introduction

Two recent prosecutions by the UK Health and Safety Executive (HSE) shed light on the way in which the new Australia work health and safety legislation may be interpreted. In this article, we discuss cases that explore what is reasonably practicable and how work health and safety legislation, typically used to protect employees, is being expanded globally to cover a far wider class of persons.

Recent Australian developments

On 1 January 2012, largely harmonised work health and safety legislation was introduced in the Commonwealth, New South Wales, Queensland and the Territories. The remainder of the States are expected to introduce similar legislation in 2012.

One of the key changes introduced by the work health and safety legislation was the inclusion of the definition of 'reasonably practicable' into the legislation. In addition, the scope of the legislation is broad, imposing duties on a person that conducts a business or undertaking (PCBU) to ensure that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

Recent prosecutions from the UK demonstrate how we can expect the duty to other persons and the test of what is reasonably practicable to be applied in Australia.

Jowett's case

Mr Jowett, a plumber, carrying out illegal work on domestic gas appliances was sentenced to a six month custodial sentence. Mr Jowett falsely told householders he was registered on the Gas Safe Register and used an invalid registration number. In spite of a written Prohibition Notice issued by the Health and Safety Executive on 22 April 2010, Mr Jowett continued to work on gas appliances.

The Court heard that examples of Mr Jowett's work were assessed to have been so unsafe as to represent an immediate danger to life or property.

Mr. Jowett admitted to breaching Section 33(1)(g) of the Health and Safety at Work etc Act 1974 (UK), for contravening the Prohibition Notice. Mr Jowett also admitted to four offences under the Gas Safety (Installation and Use) Regulations 1998 (UK) for carrying out gas work whilst unregistered.

In handing down sentence, His Honour Judge Thompson said that "the offences are far too serious for anything other than an immediate prison sentence. "[Mr Jowett] put the public and private individuals at risk and...did that in a reckless fashion."

What are the lessons for us?

Offences under the work health and safety legislation are graduated, based on the seriousness of the offence. In order to fall within the most serious category of offence, an element of recklessness must be involved. Jowett's case demonstrates the type of action that would fall within that category.

Under the new Australian laws, custodial sentences of up to five years may be imposed on a PCBU. In addition, monetary penalties of up to $600,000 may be imposed on an individual who is a PCBU. Jowett's case demonstrates that, internationally, the Courts take a firm line with respect to sentencing offenders against work health and safety legislation. Australia can expect a similar approach to be taken, especially for those offences where reckless conduct is involved.

Care Homes Wrexham Ltd

A fine of GBP66,000 ($97,000) was imposed on Care Homes Wrexham Ltd (CHW) following the fatal fall of an elderly resident.

Mr Tilston, 79, was a resident at Plas Rhosnesi Nursing Home in Wrexham and died after falling 3.6m to the ground from his window on 1 June 2008.

Suffering from dementia, Mr Tilston informed staff and his family prior to the incident that he intended to leave the care home and had repeatedly tried to break open the chain restrictor fitted to the window in his room. A week before the incident, staff were informed by Mr Tilston's family that he had broken the window restrictor and was planning to leave.

No action was taken by the care home to move Mr Tilston to a vacant ground floor room. Furthermore, in 2007 the window restrictors were deemed by CHW to be unsuitable as they were easily defeated. A maintenance manual had been issued by CHW to all care homes stating restrictors should not be used.

The Investigation and subsequent court case found CHW had breached section 3(1) of the Health and Safety at Work etc Act 1974 (UK) which imposes a duty on every employer to ensure, "so far as is reasonably practicable" that non employees are not exposed to risks to their health or safety.

What are the lessons for us with respect to what is reasonably practicable?

The prosecution of CHW demonstrates important boundaries in relation to the assessment that must be undertaken of what is 'reasonably practicable'.

The new Australian legislation provides that in assessing what is reasonably practicable, the Court will make an assessment of what is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

• the likelihood of the hazard or the risk concerned occurring
• the degree of harm that might result from the hazard or the risk
• what the person concerned knows, or ought reasonably to know, about:
  • the hazard or the risk, and
  • ways of eliminating or minimising the risk,
• the availability and suitability of ways to eliminate or minimise the risk, and
• after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Cost must be considered last and the guidance material accompanying the work health and safety legislation makes it clear that there is to be a clear presumption of safety ahead of cost.

Depending on the facts, what is 'reasonably practicable' may include:

• going further than merely identifying a risk to health and safety, but also taking concerted steps to consider the measures that can be put in place to eliminate the risk. In Care Homes Wrexham, for example, making modification to the home's windows and assessing the particular risks of the resident were required, and
• conducting regular monitoring of risks to ensure action is being taken to eliminate the risk as, for example, new products come to market that may help to control a risk.

What are the lessons for us with respect to legislation covering other persons?

Both Jowett's case and Care Homes Wrexham demonstrate that work health and safety legislation will be used to protect a wide class of persons.

The wide scope of the new work health and safety legislation in Australia is likely to be used to provide protection to, among others:

• residents in care homes and hospitals
• customers (in the context of providing services to fix or maintain hazards), and
• the general public.

It should be a priority task for businesses to re-assess their current work health and safety practices through the lenses of both employees and non-employees, in order to ensure they are achieving compliance with the new legislation. In particular, industries that directly serve clients or whose activities have the potential to expose members of the public to risks to their health and safety should assess the scope of their work health and safety management system.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.