Lessons from recent safety prosecutions

Anyone who has been following my thoughts and comments through this blog will understand that I have concerns about the prosecution process, and the role that it plays in improving (or otherwise) safety management.

You can see some examples of my commentary here:

$450,000: is this what we want from prosecutions?

Do we need to rethink safety prosecutions?

Rethinking safety prosecutions part 2

is this really what due diligence was designed for?

On 19 June 2016 I posted a report about an abandoned health and safety prosecution in the ACT. You can read the article at this link:

Calls for charge after stalled prosecution over Ben Catanzariti’s death at work

The article also referenced an earlier prosecution in the ACT, Kenoss Contractors, saying:

“There was a sense of deja vu about the Catanzeriti case.

Last year, Kenoss Contractors were fined more than a million dollars after being found guilty of significant safety breaches after truck driver Michael Booth was electrocuted by low slung electricity wires.

There were no warning signs and the wires were not marked out with safety flags.

But Kenoss had already gone into liquidation, and it is unknown if the fine will ever be paid.

Charges against engineer Munir Al Hasani, who was charged as an officer of the company, were set aside by the Magistrate on a technicality.” [My emphasis]

I do not want to explore the Kenoss case in this article, except to say that the charges against Mr Al Hasani did not fail on a “technicality”. To suggest they did, implies that there was some minor all the relevant error – there was not.

Mr Al Hasani was charged as a company officer when he wasn’t. This is not a technicality. The prosecution could not prove a critical element of the case.

Turning to the Catanzeriti case.

Mr Catanzeriti died on a construction site in 2012 when a concrete pump boom fell on him. The evidence strongly suggests that the accident occurred because bolts in the boom failed causing it to fall. What was not so clear, however, was why the bolts failed.

There were at least three plausible explanations for the failure, one being that the bolts had not been done up properly while there were two other explanations that suggested a failure due to metallurgical conditions.

One of the characteristics of criminal prosecutions, which occupational safety and health breaches are, is that the prosecution is bound by the “particulars” of the charges that it brings. It is not an opportunity for a general discussion about whether a workplace was “safe”.

Therefore, if the prosecution alleges that some failure on the part of an employer “caused” an accident, it must be able to prove the cause of the accident.

Because the prosecution in this case felt that they could not prove why the bolts “failed”, they withdrew the charges.

As distressing as this no doubt was for the people involved, it was probably the right decision. This precise requirement was demonstrated as recently as 27 May 2016 in the South Australian decision, Symons v Karl Chehade Dry Cleaning Pty Ltd [ 2016] SAIRC 15.

In that case a worker at a dry cleaning business was badly injured when a piece of machinery designed to iron curtains closed on her hand.

The substance of the allegations was described in opening arguments:

“It’s alleged by the prosecution that the manner in which this PLC had been programmed to control the operation of the plant meant that it was unsafe, and that there were alternative ways of programming that PLC to eliminate or substantially reduce and minimise the risks posed by that curtain press. Indeed, it will be submitted by the prosecution that had the PLC been programmed such as has been set out in particular 1.4, the risk of this incident occurring would be limited or substantially reduced. And, your Honour, that is the crux of the prosecution case.” [31]

Ultimately, the prosecution was unsuccessful, in large part because the prosecution could not demonstrate to the Court what “caused” the incident.

“The difficulty that I have with the complainant’s case is the fact that the evidence did not establish to the requisite degree, what was wrong with the press … or what caused the head to come down [74]

The complainant’s case assumes that the head failed to descend because of a lack of air pressure. It assumes that whatever Mr Johnson did, somehow sufficient air pressure was generated so as to drive the head down against the force of the tension springs that were holding it up. Whilst the evidence establishes these as reasonable hypotheses, it does not establish either beyond a reasonable doubt [78].

Although one can speculate that if those assumptions are correct a change to the PLC such that the head would automatically rise ten seconds after it had descended or a change to the configuration of the press so that the head could only remain in a descended position whilst all buttons were being pressed, might have avoided the unexpected downward movement of the head, without knowing exactly what was wrong with the press, what Mr Johnson did to it, or what exactly caused the downward movement, I cannot be sure.” [79]

The logic flow in these types of prosecutions is reasonably straightforward. If the prosecution alleges that A caused B, and that C would have prevented A from causing B, they must prove beyond a reasonable doubt that A caused B.

In neither the Catanzeriti or the Symons cases does the withdrawal/failure of the prosecution mean that the workplace was “safe”. In the Catanzeriti article, a union representative was reported as saying that other safety issues could have formed the basis of the prosecution, including the lack of exclusion zones and other safety measures such as training.

In all likelihood this is correct. Indeed, the courts from time to time have identified that failed prosecutions did not properly identify matters that should have been the subject of proceedings. For example, in Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 the New South Wales Industrial Relations Commission noted:

“As a result of the foregoing discussion, having regard to the way in which the offence was particularised and the manner in which the case was brought, I do not consider that it was reasonably practicable for the defendant to address the failings identified in the prosecutor’s case. The prosecutor’s case was limited to allegations that the defendant failed to provide an effective barrier and failed to ensure that the area was clean and free of debris. On the evidence before the Court, I am satisfied that the defendant has discharged its onus of proving that it was not reasonably practicable either to erect an effective barrier on the side of the pit catering for mechanically unloading vehicles or to ensure that the area beside the pit was always clean and free of debris so as to ensure that a person could not slip and fall. As a result, the defendant has established a defence under s53 of the Act and the summons must be dismissed [99].

I would observe that there was undoubtedly a serious risk to safety occasioned by the unguarded pit when combined with the presence of substances or fluids on the ground. Mr Buchanan properly conceded that such a risk existed. The gravity of the risk was demonstrated in this case by the injuries sustained by Mr Holloway. However, it was necessary that this risk be addressed by eliminating failings other than those specified in the prosecutor’s case. It was necessary that the risks be addressed by some other means. Whilst it is not the position of the Court to specify what measures were required, it is possible that there were failings in effective supervision, adequate warnings or in the condition of the ground (even aside from the metal plates) that gave rise to the risk. These were not matters that were alleged as part of the prosecution.” [100] [my emphasis]

While I believe that a criminal prosecution regime does have a place in the overall framework of health and safety regulation, I am not convinced that its limitations are properly understood.

Health and safety prosecutions are not an effective framework for understanding and improving workplace health and safety.

History would also suggest they are not a particularly effective framework for punishing health and safety transgressions.

I have suggested an alternative to safety prosecutions in my article, $450,000: is this what we want from prosecutions?, But for the purposes of this article I would just like to leave a thought for the advocates of increased, and more severe occupational safety and health prosecutions, and that is; the more of an adversarial approach we take to dealing with workplace accidents, the more adversarial response you can expect. And one of the consequences of an adversarial process is that you are likely to lose as often as you win.

A win/loss record in occupational safety and health prosecutions adds as much value to our understanding of health and safety management as lost time injury rates.

What do we expect from health and safety prosecutions, and does the current system delivers against those expectations?

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