March 16, 2017

Rise in manslaughter and serious criminal charges arising out of workplace safety incidents

The past six months has seen an increasing number of manslaughter and recklessness charges being pursued against individuals following work health and safety incidents.

Last week, a bus company manager and a mechanic in NSW were charged with manslaughter arising out of a bus crash in the Kangaroo Valley on 14 May 2010.  The driver of the bus was killed and the 28 passengers were all injured; one with serious injuries.  The bus was driving the passengers to a carer's retreat when it veered suddenly off the road, crashed through a guardrail and slid 40 metres down an embankment. The driver was ejected from the coach on impact.

After an extensive investigation by the Traffic and Highway Patrol's Crash Investigation Unit, NSW Police charged the two men with various offences including manslaughter; recklessly causing grievous bodily harm; hindering the course of an investigation into a serious indictable offence, intending to pervert the course of justice; concealing a serious indictable offence and publishing false material to obtain property. Both men were granted bail, with the two due to front court in the coming months.

The charges in NSW follow a number of recent manslaughter charges and convictions around Australia. In November 2016, the builder in charge of the Eagle Farm racecourse construction project, Claudio D'Alessandro, was charged with two counts of manslaughter over the death of two workers who were killed in October 2016 when two concrete wall panels fell on the workers who were working to install a fourth and final wall in a cub-shaped drainage pit. It is alleged that Mr D'Alessandro was negligent as the system had no bracing integrity and was not designed or adopted in any way by an engineer.  The charges come as Workplace Health and Safety Queensland continues to investigate the double fatality.

In October 2016, Peter Francis Colbert, a company director in South Australia, was sentenced to up to 10 years and 6 months in gaol (after a reduction for time served) after he was found guilty of the manslaughter of a driver who was killed when the brakes of the truck he was driving failed and he collided with a pole. He was also found guilty of recklessly endangering the life of another driver. Mr Colbert was found to have had knowledge of the truck's dilapidated brakes prior to the incident after five workers had complained about the truck's brakes. In fact, two days before the incident another driver told the Mr Colbert that he had narrowly avoided a crash after the brakes failed. The company director took no steps to check or repair the brakes. Justice Blue of the South Australian Supreme Court said that the Mr Colbert's act in allowing the deceased to drive the vehicle "involved such a great falling short of the standard of care which a reasonable person would have exercised, and involved such a high risk of death that serious bodily harm would follow, that it merited criminal punishment."

Following this decision, the South Australian Occupational Safety, Rehabilitation and Compensation Committee inquiry recommended that the Director of Public Prosecutions and the Crown Solicitor in South Australia develop a protocol for initiating work-related manslaughter prosecutions after workplace deaths in appropriate circumstances.

This move to pursue serious criminal charges against individuals involved in workplace incidents signals a change in prosecutorial mind-set. Up until now, prosecutors have been hesitant to commence proceedings against individuals, typically only using them as a tool for plea bargaining or in cases where a company has been wound up. Recently though, prosecutors in both the general criminal sphere as well as safety regulators have experimented with these more serious charges. The NSW Resources Regulator announced in August 2016 that it had commenced Category 1 proceedings under the Work Health and Safety Act 2011 (NSW) against two individuals (likely to the officers) working for Cudal Lime Products Pty Ltd.  A member of the public died allegedly after being electrocuted due to the company's defective electrical equipment. Cudal Lime's quarry supplied electricity to the victim's house. In February 2017, Workplace Health and Safety Queensland announced that two directors of construction company Lavin Constructions Pty Ltd had been charged with Category 1 recklessness offences under the Work Health and Safety Act 2011 (Qld) arising out of a fatal incident in which a roofer fell six metres to his death while working on the edge of a roof at a construction site. In both instances, the companies were also charged with category 1 offences.

Whether this trend of pursuing manslaughter and recklessness charges in relation to workplace incidents continues remains to be seen; however, it is an acknowledgement of a long-held belief of regulators (and safety commentators) that the best way to effect positive change in organisations in terms work health and safety is to make the leaders of those organisations accountable.