Australia: Reckless safety breaches under the spotlight

Last Updated: 29 May 2018
Article by Michael Selinger
Most Read Contributor in Australia, September 2018

With the recent trend across the nation to introduce industrial manslaughter laws, the prosecutions that commenced in the ACT last month signal a strengthened focus by regulators on pursuing individuals alleged to have been personally culpable for serious breaches of safety laws.

In 2016, a construction worker at the University of Canberra Public Hospital construction site was killed when the boom of a mobile crane fatally struck the worker as the crane toppled over during an attempted lift. Following a lengthy investigation, the safety regulator Work Safe ACT filed proceedings last month under the Work Health & Safety (WHS) Act against a number of individuals including Category 1 offences of reckless conduct against the crane dogman, site supervisor and site safety officer. The crane driver was charged with criminal manslaughter. In addition, the managing director of the crane company and both the regional director and site manager of the principal contractor have been charged under the WHS Act with category two offences. The individuals charged with category one offences face up to a maximum penalty of $300,000 and/or five years in prison, while those facing category two offences are exposed to penalties of up to $150,000. The corporations themselves are also exposed to penalties of up to $3 million for the alleged category one offences.

The investigation, which is said to have involved preparation of over 30,000 pages of evidence, including 2000 photographs, video footage and 3D computer modelling, is likely to result in one of the most important cases under the harmonised safety laws since their introduction in 2011. Although a number of individuals have been prosecuted for category one offences in other jurisdictions, this is the first matter in which a wide group of workers ranging from supervisors, safety officers and workers licensed to undertake high risk work each face potential prison terms under the new laws.

Reckless conduct breaches

The test for a category one offence is that the alleged offender must have engaged in conduct, without reasonable excuse, that exposed another person to a risk of death or serious injury and that the offender was reckless as to the risk to that individual. The framing of this offence suggests that there must be conduct which is more than mere inadvertence, negligence or carelessness, but that there was a clear reckless disregard for the safety of another person, for which there was no reasonable excuse.

The prosecution has the burden to prove beyond reasonable doubt that the conduct was engaged in without reasonable excuse. The challenge for the prosecution is to establish this test in circumstances where they cannot rely on evidence given by the alleged offender themselves during the course of the investigation. This is because those individuals, if they have provided statements to the safety inspector during the course of the investigation, would have most likely done so under compulsion of law which removes (other than in Victoria and South Australia) the right to silence. As a consequence, the prosecutor is prevented from tendering into evidence the alleged offender's own statements against them and the alleged offender is not obliged to give evidence during the trial. Instead, the prosecution must rely on evidence of other witnesses to demonstrate that the alleged offender was recklessly indifferent to the risk of harm and, additionally, that there was some conduct by the alleged offender that directly led to the harm, for which there was no reasonable excuse.

The defence to these charges can be either to demonstrate that there was no unreasonable conduct or, if there was such conduct, that the conduct did not have any causal link to exposing another person to the risk of harm. Additionally, an alleged offender can show that here was no recklessness as to the harm. The most straight forward way to manage a defence to such charges is to demonstrate that the general duty owed by an individual under the safety laws has been discharged. In the case of a fellow worker, this will be to show that reasonable care was take for the safety of the person at risk and, in the case of an officer of the company, that they had exercised due diligence. In the context of safety law, due diligence will mean that you can demonstrate that you have WHS knowledge and are aware of the general risks in your business and that you ensure and verify that the business has put in place safe systems of work which are being effectively maintained.

New manslaughter laws

The reckless conduct charges laid in the ACT proceedings are to be contrasted with the new industrial manslaughter laws that commenced operation in Queensland late last year. The offence for an individual accused of industrial manslaughter applies to any "senior officer". A senior officer is broadly defined and extends the meaning of officer under the current WHS Act to mean a person who is an executive officer of the company or the holder of an executive position (however described) in relation to the company, who makes, or takes part in making, decisions affecting all, or a substantial part, of the company's functions. A senior officer will be guilty of an offence if a worker has died in carrying out work for the business and the senior officer's conduct causes the death of the worker and the senior officer is negligent about causing the death of the worker by the conduct. If the offence is proved, there is no monetary penalty but imprisonment of up to 20 years can be imposed.

Unlike the category one offence under the WHS Act, the industrial manslaughter legislation defines how an alleged offender is said to have 'caused' the death of a person - being that their individual conduct "substantially contributes to the death". It is not clear whether or not the action or inaction of any particular individual can said to have substantially contributed to the death or not. In the case being prosecuted in the ACT, could it be said that any of the individuals prosecuted had negligently and substantially contributed to the death of the construction worker? By contrast, under the WHS Act, there must be more than mere negligence, but effectively a reckless indifference to the risk to the safety of another person in addition to conduct (either action or omission) which causes the other person to be exposed to the harm.

Where to from here?

The proceedings in the ACT are likely to be defended and any judgment in the matter will provide further guidance as to the operation of personal duties owed by individual workers and officers under the safety laws, at least in the context of a construction site. However, lessons for individuals can already be drawn from this matter. In particular, the need to ensure that you are taking a proactive approach in promoting safety in all aspects of your role in your organisation. And should there be a serious workplace incident that occurs, that you will be in the best position to demonstrate that you have exercised due diligence.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Michael Selinger
 
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