Timing plays role in charges over worker death

By Michael Selinger on November 9th, 2017

 

THE new Queensland manslaughter laws may well have resulted in a director facing 10 years in prison, had the incident he has recently been charged with occurred this year, and not in 2015.

Work Health and Safety Queensland has laid charges against Oil Tech International Pty Ltd and company director Michael Joseph Reid in relation to the death of worker Matthew Adam O’Brien at a waste recycling facility in Yatala on 5 November 2015.

The case is being prosecuted under the laws in place when the incident occurred, in 2015, meaning the maximum sanction the director faces is five years’ imprisonment and/or a fine of up to $600,000 as the charge alleges a Category 1 offence. The company faces the maximum fine possible, being up to $3 million.

Had the incident occurred this month, then under the new manslaughter laws in Queensland, it would have been possible for the WHS prosecutor to initiate criminal proceedings against the director seeking imprisonment of up to 20 years as well as seeking a penalty against the company of up to $10 million.

The current Category 1 offence requires the prosecutor to prove beyond reasonable doubt that the director, without reasonable excuse, engaged recklessly in conduct that exposed an individual to a risk of death or serious injury. By contrast, under the new manslaughter laws, the director is guilty if it can be proved beyond reasonable doubt that the director’s conduct substantially contributed to the death of the person and the director was negligent about causing the death.

Tragic circumstances

In current proceedings, the prosecutor is alleging the deceased worker was using a heat gun close to where a tanker containing water and unleaded petrol was being unloaded when he was engulfed by flames and died.

To establish guilt of the company, the prosecutor is alleging that:

  • the company carried out waste recycling, including receipt of waste oil and flammables;
  • the systems for testing and detecting substances on receipt were deficient;
  • there was a lack of any hot work permit system, which resulted in the deceased worker being able to commence hot work in the vicinity of the tanker that had petrol fumes in it;
  • there was a deficiency in the training given to the deceased worker regarding undertaking hot work; and
  • there was no system to ensure isolation of hot work from flammable material such as; the petrol vapours.

In order to establish the element of recklessness, the prosecutor will allege that there were relatively simple and available controls that could have put in place to avoid the risk of injury.

Importantly, the prosecutor will allege that the lack of any real system to prevent the very foreseeable risk of ignition sources coming into contact with flammables was so gross a failure by the company that it amounts to recklessness.

Due diligence

In relation to Mr Reid, the director of the company, he is charged with not exercising due diligence to the standard required.

This allegation is made on the basis that he did not appear to gain a proper understanding of the company’s operations and the hazards and, importantly, did not ensure the company used and implemented appropriate resources and processes to minimise risk of ignition sources coming into contact with flammables.

The question of whether these failures were sufficiently gross that they amounted to recklessness is an element that the prosecutor must establish in order to secure a conviction for a Category 1 offence. In effect, the prosecutor has to establish that Mr Reid almost turned a blind eye to the risk of injury or was recklessly indifferent to the risk of injury.

These proceedings, if they result in a contested hearing, will offer some insights into how the courts will consider the issue of recklessness in the context of work health and safety laws.

The case will also provide an insight into how the new manslaughter laws may operate as well, particularly when it comes to establishing questions of whether the officer’s conduct substantially caused the death of the person.

And it will also be important to see whether going forward a number of charges will be brought against any particular officer in the future for reckless conduct, that is, a Category 1 offence for reckless conduct and also an industrial manslaughter charge for gross negligence.

Planning ahead

No matter the magnitude of the task, any established safety plan will involve the identification of workplace hazards and the removal of them where possible – or an attempt to reduce them if not.

All company operating procedures should be developed by someone experienced in the task. But what should these procedures contain – and how often should they be reviewed?

Written by the author of the above article, Michael Selinger, the 23-page How to Develop a Safe Operating Procedure eBook has all the information you need to help design a long-lasting program specific to your company’s particular activities.

If you deal with constantly changing hazards, it can be easy to miss a point or skip a step – and a bit of extra assistance will never go astray.

Don’t delay. Order your copy of How to Develop a Safe Operating Procedure and help reduce the risk of future injuries among your workers.

 





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