In recent times, we have seen a shift in relation to prosecutions for work-related deaths and injuries.
Personal liability claims have recently escalated, with prosecutors at times bringing charges pursuant to general criminal law legislation, as well as work health and safety legislation. Additionally, prosecutors are increasing their focus on the liability of third-party service providers and contractors – while not taking away from their pursuit of corporate owner/operators of faulty machinery and equipment.
Parnter, Andrew Tobin reviews some recent cases.
Personal Liability
In recent times there has been an emphasis on holding individuals accountable for health and safety incidents. Traditionally, prosecutors have relied on alleging a contravention of the relevant work health and safety legislation, to hold companies and individuals accountable for poor conduct with respect to health and safety in the workplace. However, prosecutors are now, at times, electing to commence prosecutions pursuant to general criminal law provisions in the relevant jurisdiction, when bringing an action against an individual.
The recent South Australian Court of Criminal Appeal decision of R v Colbert [2017] SASCFC 29 found that the sentence for Peter Colbert (company director of the trucking company, Colbert Transport), as convicted for manslaughter and endangering life pursuant to the Criminal Law Consolidation Act 1935 (SA) following the death of one of the company’s truck drivers, was not excessive. Mr Colbert had received a reduced sentence of 10 years and 6 months’ imprisonment, following the determination that he failed to act upon his knowledge that the truck involved in the accident had faulty brakes.
In March 2017, a manager and a mechanic of a minibus business were both charged by New South Wales Police with manslaughter and recklessly causing grievous bodily harm, after a 2010 bus crash caused the death of the driver and injury to its 28 passengers. At a 2012 inquest into the incident, it was found that the bus careered off the road and tumbled down a steep embankment as a result of faulty brakes. The inquiry heard evidence from another company driver, who stated that the manager was made aware two days before the accident took place, that the handbrake on that particular bus wasn’t working properly. Police will reportedly allege in the prosecution, to be heard later this year, that there were also defects in the rear brakes.
Corporate Liability and “Third-Party” Liability
A recent South Australian case has demonstrated that there is an emerging shift in the primary prosecutorial focus, from owners and/or operators of equipment to companies and individuals who provide third-party services to the owners and/or operators.
This time last year, safety inspection company ‘Safe is Safe Pty Ltd’ and its employed engineer, Hamish Munro, were the first parties to be charged under the Work Health and Safety Act 2012 (SA) (SA Act) with category 1 offences over the death of an eight year old girl. The young girl sustained fatal injuries after being flung from a ride at the Adelaide Royal Show.
In proceedings before the South Australian Industrial Court in April 2017, Safework SA alleged that the safety company and engineer who were tasked with the inspection and safety verification of the ride known as ‘AirMaxx 360’ breached the SA Act during the course of their inspection of the ride. Under the SA Act, the penalty for a category 1 offence brings a maximum of 5 years’ imprisonment or a $300,000.00 penalty for an individual; 5 years’ imprisonment or a $600,000 penalty for a person conducting a business or undertaking/officer, and; a penalty of $3 million for a body corporate or government body.
The case against Mr Munro was also investigated by the South Australian Director of Public Prosecutions who reportedly decided against pursuing criminal charges for manslaughter, on the grounds of insufficient evidence.
Charges in relation to the same incident were also made by SafeWork SA against the owner/operator of the ride, C,J & Sons Amusements Pty Ltd and its co-directors Jenny-Lee Sullivan and Clinton Watkins, for failure to provide and maintain plant in a safe condition, so far as is reasonably practicable to do so. The accused are yet to appear in court in relation to these charges.
It remains clear that a company or individual is not entitled to delegate its duties and obligations with respect to health and safety.
In its decision Inspector Walker v Earthquake Promotions Pty Ltd (No 2) [2014] NSWIRComm 5, the New South Wales Industrial Relations Commission considered the impact of a contractor’s failure to meet the required standards of inspection, when determining the liability of the owner/operator of a Ferris Wheel, after an incident where a ‘gondola’ fell four metres off the ride, resulting in three teenage passengers sustaining serious injuries.
The company had engaged an independent contractor to conduct an inspection of the ride, to ensure it complied with relevant Australian Standards and legislation relating to the maintenance and operation of amusement rides and devices. Although it was acknowledged by the Commission that the contractor likely did not meet the requirements of the applicable standards, the owner/operator was not relieved of its liability pursuant to health and safety legislation. The Commission found the company failed to “search for, detect and eliminate, so far as reasonably practical, any possible areas of risk to safety, health and welfare which may exist or occur from time to time”.
In May 2017 the District Court of New South Wales ordered a record penalty fine of $1 million, for work health and safety category 2 offences after a director of a window glass company knowingly let a sub-contractor work near a live high-voltage power line in a bid to avoid a residential construction project being delayed.
In that matter, Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 92, the Court found WGA Pty Ltd guilty of breaching sections 19(1) and 32 of the Work Health and Safety Act 2011 (NSW), having exposed the sub-contractor, Christopher Cullen, to a risk of death or serious injury.
The Court found that, among other factors, Mr. Cullen had not previously worked within the vicinity of power lines, and that WGA Pty Ltd had safety inspections carried out only weeks prior to the accident, where it was found that the scaffolding was too close to the power lines.
Unfortunately, Mr Cullen suffered an electric shock and appeared to be on fire after being thrown back onto the scaffolding, and suffered burns to 30% of his body which required extensive medical treatment and rehabilitation. WGA Pty Ltd pleaded ‘not guilty’ to the work health and safety charges. The Court found evidence that the company had been issued with two improvement notices after the safety inspections, and that the SafeWork New South Wales inspector had found that the scaffolding on the outside of the apartments could not be used without putting a person within three metres of the high voltage lines.
The Court also ordered WGA Pty Ltd to pay the prosecutor’s costs in the sum of $50,460.90.
Is this a trend?
While it might to be premature to call ‘trend’ on this issue, we think it is worthwhile noting:
- That more emphasis is being placed on alternative pathways to hold individuals accountable for serious safety breaches, such that liability is not limited to breaches of work health and safety laws but goes broader and sometimes encompasses general criminal law provisions in many States.
- Where the previous focus of a regulator’s investigations was primarily on the owner/operators and employers utilising faulty machinery or equipment; third parties tasked with ensuring that relevant machinery or equipment meets required standards are also squarely in the sights of regulators.
- Despite the shifting primary focus, an employer or owner/operator is not relieved of liability because they have relied on a third party to inspect or maintain their equipment.
Legislative Review
The spate of serious criminal investigations and charges for breaches of work health and safety laws is set against a backdrop of tougher penalties being contemplated in various states around Australia.
Queensland is presently reviewing its mirror work health and safety laws and is considering introducing the offence of “gross negligence causing death”. Queensland is also examining whether to increase the maximum penalty for corporations and individuals conducting a business or undertaking/company officers, and; individuals, as a deterrent for non-compliance. The present maximum penalties under the Work Health and Safety Act 2011 (QLD) stand at $3 million, $600,000 or 5 years’ imprisonment, and; $300,000 or 5 years’ imprisonment respectively.
In Western Australia, the recently elected Labor Government ran a campaign that included support for imposing maximum 20 year jail terms for work-related reckless or gross-negligent conduct. What comes from this campaign and the proposed adoption in Western Australia of the harmonised legislation under the new government remains to be seen.
Ultimately, rising penalty orders and the increased prevalence of criminal charges being preferred against individuals, primary corporations and third parties that seriously breach work health and safety laws, are reminders of the importance of ensuring safety compliance in the workplace.
If you require advice to ensure that your workplace is compliant with relevant safety legislation, or if you require any assistance arising from a safety breach, please contact any of our Industrial Relations and Employment Law or Occupational Health and Safety Law team members.