Following a tragic accident leading to the death of a disabled child (Child) and his pregnant Support Worker, the NSW Government Department of Communities and Justice (Department) and the Support Worker’s employer (Company) have both been handed significant fines for failing to comply with work health and safety legislation.
On 5 September 2017, in the course of her work for the Company, the Support Worker was required to drive the Child from the Hunter Valley to the Central Coast. While they were travelling on the M1 Pacific Motorway at around 110km/h, the Child freed himself from his seatbelt and as the Support Worker pulled over to restrain him, exited the car into traffic. The Support Worker pulled the car over into the breakdown lane and tried to get the Child off the roadway. They were both hit by a truck and killed.
The Department and the Company had a contract for the Company to provide support services, including supervised transport, to children in the care of the Department. The Department was responsible for the placement of the Child with various care services prior to his respite placement with the Company and held a file with respect to his care needs, including the need for support by two Support Workers at any time due to his propensity to try and escape. The Department did not share key documents and information with the Company, including the Child’s behaviour management plan, or the need for a second Support Worker to be present during transportation.
Following pleas of guilty to offences under the Work Health and Safety Act 2011 (NSW) (Act) relating to failure to comply with relevant health and safety duties, and thereby exposing the Support Worker, the Child and other employees of the Company to risk of death or serious injury, the Company was fined $90 000 and the Department was fined $150 000.
It is important to note that, in this case, the work health and safety duties did not necessarily relate to employees of the relevant organisations that were fined. The work health and safety duty of the Company extended not only to its employee (the Support Worker), but also to its client (the Child). The Department did not directly employ anyone involved in the incident, but nonetheless had duties to the Child, the Support Worker and the other employees of the Company.
This case serves as an important reminder that the Act casts duties to ensure work health and safety broadly. There is an obligation on all businesses and undertakings to ensure that the health and safety of other persons is not put at risk because of their business or undertaking, so far as is reasonably practicable. This extends to employees, contractors, clients, customers, volunteers and even visitors. The duties include sharing information with other relevant duty-holders and cooperating with them to reduce and eliminate risks where possible. It is important that businesses have in place effective safety policies and procedures to deal with all health and safety duties.
If you would like us to review your work health and safety policies and procedures, or in the unfortunate event that you need to respond to a safety incident, please contact Nick Stevens, Luke Maroney or Daphne Klianis.