The (safety) times they are a-changing?
When the harmonised legislation replaced the 2000 NSW OH&S Act, and the District Court was given jurisdiction to deal with prosecutions instead of the Industrial Relations Commission, there was speculation that this may change the approach to assessing defences raised by an employer.
In a recent decision, this indeed seems to have happened. In Workcover v Patrick Container Ports, a District Court judge upheld Patrick’s case that nothing else it could practicably have done would have avoided the incident.
An employee had been killed, and 2 others hurt, when the employee tried to change a tyre on loading equipment, and the tyre exploded. He had been told how the tyre should be changed safely (fully deflating it before removing securing clamps), but did it in a risky manner instead (removing clamps before the tyre was deflated). He had methamphetamines in his system at the time. He was an experienced qualified employee and changing the tyre was within his usual duties and skills.
Workcover argued that Patricks had failed to document a risk assessment, to instruct the employee and to document formal training, and to supervise him, and so had not done everything practicable to ensure safety. The judge rejected these arguments and found that Patricks had done everything practicable. The worker had been instructed how to do the job safely. Adding documents about risk and training would not have helped: the employee would still have done the job the risky way. And full-time supervision was not practicable. Therefore the employer was acquitted.
Compared to the virtual strict liability regime prevailing in the IRC, this decision suggests that times may have changed. While we will need to see more decisions before being sure of this, the involvement of District Court judges with a well-developed sense of a criminal case being proved "beyond reasonable doubt" may change the likely outcome of prosecutions where indeed it seems that there was little more an employer could do.
So if there is a safety prosecution, it is necessary to look closely at what Workcover says should have been done, and to assess whether it would have been practicable to do anything more which could have led to a different outcome. If not, it may be more feasible than previously to defend the prosecution.
Watch this space.
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