Health and safety assurance – a response part II

Posted by | January 09, 2018 | Legal Developments, WH&S | No Comments
incident register

By Greg Smith | Nexus Law Group Principal – Western Australia

In response to an earlier post about health and safety assurance that was shared on LinkedIn, I received several questions. I thought the questions deserved a bit more consideration than simply trying to respond via LinkedIn, so I have slightly paraphrased the questions below and responded.

Has any organisation presented to the courts their corporate risk register and the workplace or general risk register (sometimes called hazard registers)?

Not in any case I have been involved in. The risk register is often irrelevant by the time you get to legal proceedings.

The risk register would only show the company:

  • Was aware of the relevant hazard;
  • Understood the risk presented by the hazards; and
  • Had controls in place to manage the hazard.

These things can be shown by other evidence, such as policies, procedures and so on, which means the risk register is not necessary as evidence.

There are examples where risk registers have been used against companies to show things like a poor understanding of risk, a lack of controls, incomplete action items, registers not being updated after incidents and so on. This was the case in the Pike River Royal Commission.

For what it is worth, I have never reviewed a client’s risk register and thought it would be helpful in a prosecution.

Has any organisation presented their incident register, which should list all accidents, incidents, near misses first aid cases etc.?

Not in any case I have been involved in. However, once again there are cases where a company’s previous incidents have been used against them in proceedings.

In the Pike River Royal Commission, the Commission analysed 1083 incident reports to show that the company did not properly investigate incidents.

In a recent case, Harris v Coles Supermarkets Australia Pty Ltd [2017] ACTSC 81, the company’s incident register was used against them. In that case, worker was injured when they fell off a “safety step”.  The incident register showed that between 2004 and 2009 there were 385 incidents involving the safety step. There were several recommendations made as a consequence of incidents, however the court found that these recommendations were not followed through.

Like risk registers, I have never reviewed client’s incident investigations, or incident register databases and thought it would be helpful in a prosecution.

Based on your experience, how many events were caused by a worker ignoring the procedure that was in place (the reason why they deviated is not my argument here) In other words if the procedure was done to how it was drafted, would the event have occurred?

I do not know about “causation”, and I will explain that in a minute, but most cases do highlight non-compliance with documented safety processes as an issue and criticise the organisation for not enforcing its own procedures.

The “causation” question is not so clear.

For example, in Capon v BHP the court found that BHP did not enforce its own systems of JHA, Take 5 and supervision – the worker had not done JHA’s and Take 5, and the supervisor had not checked them – but this failure was not “causal”.

BHP was convicted because it did not enforce its own system, but the court said the prosecution did not prove beyond a reasonable doubt that the failure by BHP to enforce its own system caused the accident.

If the courts are trying to find out if the SMS was functioning at full ‘capacity’ and assuming it was, does this imply that workers MUST follow the functioning at full ‘capacity’ SMS at all times?

There are a few things in this question.

First, the courts not trying to find out if the “SMS was functioning at full capacity”, but rather whether the company managed its hazards as low (or so far) as reasonably practicable. Having said that, the cases are all reasonably consistent – if you have a safety management system that describes how you are going to manage health and safety risk in the business, you are expected to comply with it – to that extent, it needs to be functioning at, or pretty close to, “full capacity”.

Second, a “one-off” departure from the safety management system by a worker does not automatically create liability for the employer. If the employer can show they had a “proper” system to manage hazards, the system was understood and implemented by the workers and one employee on a rare or “one-off” occasion didn’t follow the system, that is usually defendable

In broad terms, a company can manage safety however it likes. This is subject to any technical legal requirements – for example you must have a safe work method statement for high-risk construction work.

If a company decides to manage health and safety hazards using lots of prescriptive rules, it can do that. It just must show those rules were in place and effective to manage the hazard.

Similarly, if a company decides to manage health and safety hazards by giving the workforce a wide-ranging discretion about how they work, it can do that too. But again, it must show the “system” of managing hazards works.

 

If you have any questions, contact Greg Smith at [email protected] or telephone + 618 6166 3599

 

This article first appeared on My Safety Thoughts.

 

This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.