What are our obligations to careless workers?

When you survey the range of safety commentary online, it is hard to escape the view that workplace health and safety is still primarily concerned with the behaviour of individual workers, and incidents are the consequence of careless individuals.

In my experience, this thinking does not align with any credible safety management theory, and it is not consistent with an organisation’s obligations under health and safety legislation. At its simplest, a worker’s individual carelessness makes no difference to the obligations of their employer, other organisations or other individuals under health and safety legislation.

The fact that a careless, individual worker did not meet their obligations under health and safety legislation, is no answer to the question of whether you met yours.

In the recent NSW District Court decision, Inspector Nash v Perilya Broken Hill Limited [2018] NSWDC 28 (read decision) the Court canvassed the issue of careless and disobedient workers in detail.

By way of background, On 8 June 2012, an employee of Perilya Broken Hill Limited (PBHL), Mark Pollard suffered a traumatic amputation of his right leg and other injuries when he fell down a haulage shaft at a mine in Broken Hill (Mine). At the time of the incident Mr Pollard, was trying to hang some weights from the bottom of a weigh flask to calibrate an instrument a load cell which measured the weight of ore in the flask.

The weights were in a metal basket and the weight Mr Pollard was hanging was about 10 tonnes. The weights and basket were in the bucket of a loader. Mr Pollard was trying to hang the weights by working from the bucket of the loader, the bucket being located in the haulage shaft.

Mr Pollard was secured to the bucket by personal protective equipment (PPE), a fall arrest system comprising harness and lanyard. His lanyard was tied to the bucket.

While Mr Pollard was working, the weights and basket fell out of the bucket and so did Mr Pollard. His lanyard snapped, and he fell.

The Court said:

In view of the fact that the workers used the bucket of the loader contrary to the understood policy prohibiting it, it is appropriate to look at authorities involving cases of careless or disobedient workers.[my emphasis added]

Drawing on precedent cases, the Court made several observations:

• Health and safety legislation is designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry:

The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable…

• “Foreseeability” is relevant, and it is not generally practicable to take measures to guard against a “detriment to safety” that was not reasonably foreseeable:

It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee.

• If there is a foreseeable risk of injury arising from the employee’s negligence while working then the employer must take this into account.
• The extent and standard of training an employer must give will depend upon the nature of, and circumstances under which, work is performed. It is not always necessary to have classroom-based instruction or work manuals. However, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training.
• It is not enough to simply give employees instructions about health and safety “an employer must also ensure that those instructions are carried out”.
• But, when an employer has established and implemented a proper system, then this can be an answer to the conduct of individual workers:

Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety.

In the PBHL case, the Court rejected any argument that carelessness by individual workers limited PBHL’s liability:

I do not see any scope for the application of a principle in this case that would limit the defendant’s liability where the very risk that is in issue is one that was foreseen by Mr Dally and by Mr Slade, where Mr Dally told Messrs Tavian, Harris, Ridley and Gauci that he did not want the workers working the bucket of the loader and where he expected that to be passed on to the workers, and where he expected that to be in the JSA.

Mr Dally and Mr Slade both expected the JSA to cover the risk of the use of the bucket and/or falling from height and it did not. [my emphasis added]

The Court found procedures and instructions for the work were incomplete and workers were directed to start work when the JSA process was deficient and the JSA document was inadequate. The employer should have known both those things.

A common misconception is that safety prosecutions are all about identifying “fault” – who was at fault, or most at fault, when an accident occurred. This is not the case.

Employees who breach known safety procedures may be at “fault”. Indeed, individual workers and supervisors are prosecuted following workplace accidents. But an employees fault is no answer to the question, “did the employer meet their obligations under health and safety legislation?”.

The fact an employee breached safety procedures – even procedures they were aware of, does not prove an employer provided adequate training and supervision, nor does it prove an employer diligently enforced its systems of work.