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A wild year for workplace health and safety!

2020 provided some fascinating insights into work health and safety
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A wild year for workplace health and safety!

A wild year for workplace health and safety!

16 December 2020

By Australian Business Lawyers & Advisors

In a year unlike any other year in living memory, 2020 provided some fascinating insights into work health and safety (WHS).

What in the workplace is going on?

In New Zealand, following the tragic deaths of 22 people when the White Island volcano erupted, we saw 13 entities being charged, including some directors. These WHS prosecutions will play out through 2021 and possibly for some years to come.

The issue in these prosecutions will centre around whether and what tourist operators should say to tourists about active volcanoes.  Although too early to say, we may see some interesting analysis of the competing issues of ensuring health and safety versus individuals being allowed to accept risk. With 13 parties charged, the prosecutions are bound to bring out many issues of importance for WHS professionals.

In the growing area of criminal liability for professional advisors, we saw Ranjan Fernando Consulting Engineers Pty Ltd, a consulting engineering company, and its director convicted and fined $250,000 and $60,000 respectively. The company drew up structural drawings for a mixed commercial and residential development in Victoria. The drawings failed to include an appropriate retention system for the excavation.

We also saw the conviction and $200,000 fine of Grasso Consulting Engineers Pty Ltd for failing to give adequate advice about a demolition project. In that case, the director was fined $30,000.

Falls from heights continued to be an area of concern under WHS laws in all states and territories. In NSW, Landmark Roofing Pty Ltd was fined $400,000 after a worker fell six metres to his death. Landmark Roofing Pty Ltd has appealed the sentence. In Victoria, Seascape Constructions Pty Ltd was fined $850,000 after a subcontractor carpenter fell 3.1 metres. Again, in NSW, Bay Trusses & Frames Pty Ltd, was fined $300,000 after a driver fell from a flatbed truck suffering serious injuries.

In the prosecution of NonAbel Concrete Pump Pty Ltd and its director in NSW, fines of $375,000 and $10,000 were imposed. The prosecution arose out of an incident where compressed air was used to clear a blockage from a concrete pump hose, which whipped under pressure and a metal coupling struck the worker in the head. Interestingly, the director was also ordered to undertake a work health and safety risk management course for supervisors and managers.

Industrial manslaughter

The absence of a traffic management plan led to the first industrial manslaughter conviction in Queensland. Brisbane Auto Recycling Pty Ltd was convicted and fined $3m and its two directors were convicted and sentenced to 10 months' imprisonment. Ironically the operator of the forklift that reversed and killed a worker was not convicted of the criminal charge of dangerous driving causing death.  

Industrial manslaughter laws now exist in the ACT, Queensland, Victoria and Western Australia.

The largest fine goes to...

This went to Ardent Leisure Ltd, which received a massive $4.5 million fine for the death of four people on the Thunder River Rapids Ride at Dreamworld on the Gold Coast. The charges were category 2 offences, suggesting that fines could go higher for category 1 offences and industrial manslaughter. If this weren’t enough for Ardent Leisure Ltd, a child was reported to have suffered further serious injuries on 1 December on the “Fully6” water slide.

Let's not forget the unusual cases

In Victoria, an aged care provider was convicted and fined $20,000 when a 100-year-old resident spilt hot coffee on himself. In Western Australia a mining contractor was fined $60,000 after an engineering surveyor died from a bee sting and in Queensland the operator of a monster truck show was convicted and fined $25,000 after an oversized vehicle careened into spectators.  In the Victorian prosecution of Hazelwood Power Corporation Pty Ltd, a total fine of $1.56m was imposed after a fire blanketing parts of the Latrobe Valley in ash and thick smoke.

Reminding us that the harmonised legislation applies to government entities as well, the Department of Defence was fined $300,000 after a cadet fell down an escarpment during a night time exercise.

A particularly interesting case is the prosecution of Salters Cartage and its director Ron Salter in Auckland, New Zealand.  Both were charged with offences under the NZ Health and Safety in Employment Act 1992 arising out of a tank explosion and were fined $258,750 and $25,000 respectively. The particularly interesting aspect to this case is that following the convictions, the NZ police brought an action under the Criminal Proceeds (Recovery) Act 2009 to seize more than $8 million of personal and business assets.

The director, Mr Salter is reported to have said, “they are wanting to take my house, my daughter’s house, the bach, the business, everything”.

The outcome of the proceedings is not yet reported, but at least in theory (and in particular in Queensland and Western Australia), it would seem possible that a similar type of action could be brought by the police. Perhaps this is a future area of concern for those charged with WHS offences.

Outside of the courts, NSW has looked to introducing a Code of Practice Managing the risks to psychological health. Although all states and territories have guidance material on psychological health, the NSW document is setting a new standard and the code of practice could be replicated in other jurisdictions.  

New South Wales and New Zealand have also become the only Australasian states where insurance for work health and safety fines is unlawful. Insurance can still be obtained for the cost of litigating, but no longer for the penalty.

In terms of 2021, there are plenty of cases in the pipelines and no doubt new and interesting points of law and practice will be established.

Written by Alan Girle, Director at Australian Business Lawyers & Advisors.

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