Potential Gaol term for “reckless” engineer

A full bench of the Industrial Relations Court South Australia (“the SA IRC”) has upheld charges against an engineering company, Safe is Safe Pty Limited (“the Company”) and its officer, Hamish Munro, for “recklessness” following the death of an eight year old girl at the Royal Adelaide Show in 2014 after being ejected from an amusement ride and being fatally injured.

Prior to the accident, the Company had performed its annual inspection of the ride and issued a certificate of compliance that the ride was compliant with the appropriate safety standards. Mr Munro was an officer of the Company and was found to have “aided, abetted, counselled or procured” the Company to commit a breach of the Work Health and Safety Act 2012 (SA) (“the SA WHS Act”, in terms mirroring the NSW WHS Act) being that the Company, “without reasonable excuse, engaged in conduct that exposed a class of individuals to whom a health and safety duty was owed…to a risk of death or serious injury, and that it was reckless as to that risk.”

As a timely reminder:

• Section 19(1) of the SA WHS Act prescribes the primary duty of care on a PCBU to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work; and

• Section 19(2) of the SA WHS Act prescribes the primary duty of care on a PCBU to ensure, so far as is reasonably practicable, the health and safety of other persons is not put at risk from the PCBU’s work.

The defendants unsuccessfully argued that the “health and safety duty imposed by s 19(2) of the [SA WHS] Act only exists whilst work is being carried out by the [PCBU and]…does not extend to the consequences or product of work, after the work has been carried out or completed.” The defendants unsuccessfully argued that the defendants’ had completed the relevant “work” on the ride prior to the accident and therefore, the duties under section 19(2) of the SA WHS Act had lapsed because the victim was not at the “workplace”.

In rejecting the defendants’ arguments, the IRC held that the duty under section 19(2) of the SA WHS Act does not merely complement the primary duty to workers by extending it to customers and visitors to a workplace, rather, the duty is wider in order to “protect the public at large from the adverse health and safety consequences of work undertaken by a PCBU.”

The IRC also went on to hold that “the gist of an offence under s19 of the [SA WHS] Act is the exposure to the risk…the consequence of a breach of the duty is not an element of the offence. It is the creation of the risk that constitutes the offence.” [Emphasis added] Accordingly, the SA IRC held the risk arising from the defendants’ work sufficiently extended to members of the public, specifically, the deceased child.

The Company is now exposed to a maximum fine of $3 million and Mr Munro may face a gaol term of up to five years or a $600,000 individual fine in his position as officer of the Company.

If you would like to discuss the scope of your work health and safety duties, please do not hesitate to contact Nick Stevens, Megan Cant or Jane Murray.