WHS fatality prosecution against an officer – ‘reasonably practicable’?

R v Lavin [2019] QCA 109

McMurdo JA and Mullins and Davis J

FACTS

On 6 February 2019, the Appellant, an officer of Multi-Run Roofing Pty Ltd (the company) was found guilty of failing to exercise due diligence duties to ensure that the company, complied with a primary duty of care provisions under the Work Health and Safety Act 2011 (the Act). As a result, the workers of the company were exposed to a risk of death or serious injury or illness. The Appellant was convicted of one count of a breach under Section 31 of the Act [4] for the death of a worker.

To protect workers, the company’s quote for the work, included ‘supplying and installing of safety rail’ on the roof to prevent falls. However, despite the terms, no safety rail was installed. The company instead used harnesses which were attached to ropes secured to both the ground and fixing points on the roof. The company also positioned scissor lifts as a barrier at the edge of the roof – a mobile platform that can be raised to various heights. [9] – [13]

However, it was not contemplated by the company that all workers on the factory roof would use harnesses all the time, especially those working away from the edge since it was perceived they were not in danger of falling off the roof. Rather, the plan was for the scissor lifts to be positioned where the workers were working, so that the rails on the lifts operated as a barrier preventing a fall. As the workers progressed, the scissor lifts would be moved along the edge. The scissor lifts, along with the workers using harnesses, would anticipatorily prevent falls from the roof. [14] – [15]

The Appellant was prosecuted in response to a fatal accident occurring at the worksite at Lake Macdonald on the Sunshine Coast on 29 July 2014. One of the employees employed by the company tripped in the cutter and fell off the roof, without a harness and there was no rail. The scissor lift was not positioned at the edge of the roof adjacent to where he fell. In this fall of almost six metres, the employee suffered fatal injuries and died shortly after the accident. Later evidence revealed that the ground where the employee fell had no scissor lift since the ground was uneven, making instalment difficult [8] – [18]

The Appellant was charged with offences under section 31. The Appellant lodged an appeal against the conviction and sentence of twelve-month imprisonment to be suspended after serving four months. [5], [18]

ISSUES AND APPLICABLE LAW

Did the accused engage in the conduct without reasonable excuse?

The trial judge directed the jury that the criminal liability of the Appellant required consideration of ‘reasonable practicability’ as by reference to section 31 of the Act. The trial judge posed the question of whether the step of installing the railing is a reasonable excuse measured against the definition of reasonably practicable. [46]

JUDGMENT

The Court held that the trial judge misdirected the jury. The issue under section 31 was not whether the instalment of the railing was ‘reasonably practicable,’ but whether the failure of instalment exposed the employee to a risk of death or serious injury. And if so, whether there was a ‘reasonable excuse’ in making that omission. [47]

Thus, in the consideration of whether there was a ‘reasonable excuse,’ the jury was obliged to consider the alternative measures used by the Appellant – such as the harnesses and use of scissors lift – and not just whether it was reasonably practicable to install the railing. The question to consider is whether the implementation of the alternative measures provided a reasonable excuse for leaving the employee to the remaining risk of falling from the roof. The element also requires consideration about not only what measures were put in place, but also what the Appellant believed had been put in place. Hence, the Appellant’s belief is relevant to the reasonableness of any excuse. [47]

The Court found that under s 31 of the Act, where the prosecution asserts that it was reasonably practicable for a person to have implemented a particular safety control and there was an alternative control in place, a jury will be required to consider whether the person had a “reasonable excuse” for not implementing the first control, namely that the second control was in place. [46] – [49]

The Court held that the trial judge did not properly identify the elements of the offence, constituting as a miscarriage of justice where the misdirection impeded the proper function of the jury. Thus, the conviction was set aside, and a retrial ordered [49] – [50]

ORDERS

On 3 May 2019, the Court made the following orders:

  • Appeal against the conviction allowed; and
  • Conviction set aside and retrial ordered

David Cormack – Brisbane Barrister & Mediator

Ramisa Raya – Research Assistant

 

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