Australia: Industrial Manslaughter

In an illustration of an extreme example of recklessness and negligence in relation to the health and safety of workers, four workers died after being hit by a runaway trailer on a railway in Cumbria, United Kingdom in February 2004.

The Prosecutor in the case stated that the manager of MAC Machinery Services "had deliberately disconnected the hydraulic brakes on two wagons in order to save money rather than having them fixed properly". It was further found that the manager had filled the hydraulic hoses with ball bearings to give the impression that they were charged with fluid.

The manager and a crane operator who was unloading the trailer were each found guilty in March 2006 of four counts of manslaughter and in addition were also found guilty of breaching a number of health and safety laws.

This case highlights the fact that workplace accidents can result in severe sanctions for individuals who are reckless regarding the health and safety of others.

In 2004 the ACT became the first jurisdiction in Australia to enact provisions dealing with the offence of industrial manslaughter.

Under the ACT Crimes Act, in the event of a death, employers and senior officers may be fined $200,000 or imprisoned for 20 years if found guilty of reckless or negligent acts or omissions that cause serious harm to, or the death of, a person in the workplace.

In Australia, there has only ever been one successful prosecution for manslaughter arising out of a workplace fatality. The case was tried in Victoria in 1994 and involved the death of an employee whose truck overturned because of faulty brakes fitted to the vehicle. One of the company's officers had been informed of this before the accident.

The ACT industrial manslaughter offence, yet to be followed by other jurisdictions, provides that if the "corporate culture" of an organisation impliedly authorises or permits the act or omission that results in the death of a person, senior officers may be found liable. This applies even where they are not directly involved in the accident causing the death of a worker.

Senior officers may be prosecuted and fined or jailed individually due to their association with the company. In this respect, the offence has been heavily criticised because it renders individuals punishable for a serious criminal offence attributed to the corporation at large.

Currently there is no case law under the ACT legislation that may indicate what acts or omissions would satisfy the definition of recklessness under that Act. There is a continuing debate about whether specific legislation is required in other States to address workplace fatalities.

Thanks to Michael Connolly for his help in writing this article.

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