Sorry, but I was ‘just following orders’ is no defence

By Charles Power on April 12th, 2018
  1. Risk Management
  2. Risk Assessment

 

Australian work health and safety legislation imposes duties on employers and other persons conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of their workers.

In a recent prosecution in NSW, the duty-holder was found guilty of breaching this duty even when it was simply following the directions of the injured worker.

Breaching a duty imposed by work health and safety legislation is a criminal offence. If a person is charged for breaching that duty, the prosecution must prove that at the time of the alleged offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk – either by eliminating the risk (if it was reasonably practicable to do so) or minimising it as far as it was reasonably practicable to do so.

Looking into the future …

The risk to safety must be reasonably foreseeable. In this regard, a duty-holder is expected to adopt a proactive approach to safety issues, having regard not only for the ‘ideal’ worker but for one who is careless, inattentive or inadvertent.

If a risk is reasonably foreseeable, a duty-holder does not need to take every possible step that could be taken, just reasonably practicable steps to provide and maintain a safe working environment.

In determining what is practicable, the duty-holder is assumed to have such knowledge of workers generally who are engaged in the relevant field of activity. It will only be reasonably practicable to do something to control a risk if it was within the power of the duty-holder to control, supervise and manage the work.

The offence is committed when the exposure to risk of injury remains in the face of practical measures that could have been taken to eliminate or reduce the risk. The actual injury and the causation of the injury is irrelevant. What is reasonably practicable depends on all the circumstances, including principally the degree of foreseeable risk, the gravity of injury and the implications of suggested methods of avoiding it.

The incident

In SafeWork NSW v Cosentino Australia Pty Limited (2018) a stone slab supplier was prosecuted under the Workplace Health & Safety Act 2011 (NSW) for failing to ensure, so far as is reasonably practicable, the health and safety of workers while the workers were at work in its business. The failure exposed a worker to a risk of death or serious injury.

The worker, who was also the driver, was seriously injured while unloading very heavy stone slabs at a customer’s site. The slabs were incorrectly loaded at Cosentino Australia’s (the defendant’s) premises onto the back of a four-tonne truck driven by the worker. When the slabs were unloaded at the customer’s premises, nine slabs toppled away from an A-frame on the tray of his truck and fell on him.

The defendant had rules for safe loading of slabs on the A-frame but they were not followed because the driver said he was in a hurry and demanded that the slabs be loaded in a way that proved to be unsafe. The warehouse manager directed the trainee crane operator to load the slabs in accordance with the driver’s wishes, which created the risk of the slabs toppling over when unloaded.

In doing so, his actions were that of the corporate defendant and constituted a failure to instruct an employee not to load the slabs in the manner directed by the driver. This meant the corporate defendant did not maintain a safe system for the loading and transporting of slabs.

The judgment …

The Court ruled that because the defendant’s overhead crane had to be used and one of the defendant’s employees had to operate that crane, and the employees had been trained in the appropriate safe loading procedures for slabs i.e. the slabs had to be balanced on both sides of the A-frame, then the defendant influenced the driver’s activity in carrying out the work.

Although the injury occurred at the customer’s premises (and it was not reasonably practicable for the defendant to ensure safety at the customer’s premises), the risk arose at the defendant’s premises.

It is sufficient that the defendant’s failures were a substantial or significant cause of the employee being exposed to the risk of injury. The fact that a third party missed an opportunity to eliminate the risk doesn’t mean the Court cannot find the defendant’s failure substantially contributed to the risk.

The worker was exposed to a risk of death or serious injury from the time the nine slabs bound for the customer were loaded onto one side of the A-frame at the defendant’s premises. From that point onwards, there was a risk of death or serious injury.

The risk would not have been caused if the stone slabs had been loaded evenly on both sides of the A-frame so that the load was balanced.

Understanding the risks …

Every business, regardless of which industry it operates in, has a duty to provide workers with a safe and healthy workplace. The Health and Safety Handbook has more than 70 chapters covering the A-Z of workplace health and safety, applicable across all industries in every state and territory.

Protect yourself, your workers and your business by knowing and understanding the law. You don’t have to memorise it – just knowing that the Handbook you keep at your fingertips has the answers you need will give you peace of mind.

Try it out today on an obligation-free trial. What do you have to lose?

 





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