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In a recent Australian decision, a company defending a workplace health and safety charge has unsuccessfully challenged the Court’s decision to consider evidence about post-incident remedial actions taken by the company when considering what steps were reasonably practicable for it to take pre-incident. Is this a case of being punished for good behaviour?

 

Australian company Southern Meats Pty Limited (Southern Meats) was charged by SafeWork NSW for allegedly breaching the state’s Work Health and Safety Act 2011 by not ensuring the health and safety of workers while they were at work for Southern Meats. The charge arose after an incident in July 2016 when an employee of the company was run over by a forklift and badly injured.

 

Southern Meats defended the charge and the trial began on 3 May 2021. During the trial, SafeWork NSW wanted to introduce evidence about the various actions Southern Meats had taken to improve safety after the incident. Southern Meats objected to this and argued that the evidence should be excluded as it was not relevant to the issue of what was reasonably practicable for Southern Meats to have done prior to the incident.

 

Southern Meats submitted that the question of whether a particular measure was ‘reasonably practicable’ ought to be assessed by taking a prospective approach based on what was known by the duty holder at the relevant time (i.e. pre-incident), and not with the benefit of hindsight after the incident.

 

Southern Meats also pointed out that certain post-incident changes, including the creation of process documents, were the result of its response to an Improvement Notice issued by SafeWork NSW after the incident. It argued that because these actions were taken under compulsion and to comply with a statutory notice, they could not be effective evidence of what was ‘reasonably practicable’ for Southern Meats to do prior to the incident.

 

The Court rejected these arguments and held that the evidence was relevant and admissible at the trial. The Court, adopting submissions made by SafeWork NSW, stated:

 

“Whilst the ultimate question to be determined is whether any one or more of the steps particularised were ‘reasonably practicable’, the evidence [of post-incident actions] goes legitimately to the proof of practicability — that is whether the defendant ‘could’ have taken any one or more of the steps nominated by the prosecutor.”

 

Despite the admission of this evidence, the Court made clear that there was an important distinction between the possibility of a step being taken (i.e. what ‘could’ have been done), and the reasonable practicability of such a step being taken (i.e. what should have been done). The Court observed that the effect of this distinction is that where it is proven a step that could have been taken has not been taken, without additional evidence this will not prove that the failure to take the step was a breach of the defendant’s duty.

 

Comment

 

We regularly talk to clients who have concerns that remedial actions taken by them after an incident will be “used against them” by WorkSafe to support some future enforcement action. As the Southern Meats case demonstrates, this can be a reasonable concern.

 

It is logical, and likely inevitable, that a Court being asked to determine what actions were ‘reasonably practicable’ for a defendant to have taken in any particular case will want to consider what actions the PCBU ‘could’ have taken in the circumstances. Evidence about post-incident actions will always be relevant to the Court’s assessment of this.

 

A defendant is not disadvantaged by this exercise, as the Court still needs to determine whether any action that ‘could’ have been taken, ‘should’ have been taken in the circumstances of the case. This is a very different question, and requires the Court to take into account various factors, including:

  • the likelihood of the hazard or the risk concerned occurring;
  • the degree of harm that might result from the hazard or risk;
  • what the person concerned knew, or ought reasonably to have known, about—
    • the hazard or risk; and
    • ways of eliminating or minimising the risk;
  • the availability and suitability of ways to eliminate or minimise the risk.

 

The Court must also consider the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk, but only after assessing the extent of the risk and the available ways of eliminating or minimising the risk

 

If, after completing this assessment, the Court determines that an action taken post-incident was one which could reasonably have been taken prior to the incident, then a breach of duty will be established.

 

This decision should not be seen as a reason to avoid making health and safety improvements, after an incident. To the contrary, every incident can and should be treated as an opportunity to learn, as part of the continuous improvement in health and safety required to afford workers and others the best protection possible, and to have the best chance of avoiding health and safety ‘gaps’ arising that could lead to other incidents, or enforcement action. The trick is to do so in a way that recognises the good work done before (when there is some!), and presents the change as an enhancement rather than the correction of an error.  This can be a fine distinction.

 

If you have any questions or concerns about how your organisation should approach post-incident improvements, our team of health and safety experts are happy to assist. 

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