Work­place Health and Safe­ty Com­pli­ance is not about the Nan­ny State’

It is no sur­prise that some employ­ees, employ­ers and media com­men­ta­tors hold the view that many work­place health and safe­ty mea­sures are large­ly a man­i­fes­ta­tion of the so-called Nan­ny State’, infan­til­is­ing work­ers and under­min­ing the con­cept of per­son­al respon­si­bil­i­ty. For them, WHS is yet anoth­er bat­tle­ground in the ongo­ing cul­ture wars’. What is very sur­pris­ing, how­ev­er, is when that sen­ti­ment appar­ent­ly informs a court judg­ment con­sid­er­ing the penal­ty to be imposed for a breach of WHS legislation. 

In the recent Queens­land Dis­trict Court WHS case of Guil­foyle v Wild Breads Pty Ltd [2021] QDC 58, Judge Reid allowed an appeal from a deci­sion of Mag­is­trate Shear­er, mak­ing a num­ber of inter­est­ing obser­va­tions about the approach the learned Mag­is­trate adopt­ed at first instance. 

The defen­dant com­pa­ny, Wild Breads, plead­ed guilty to a Cat­e­go­ry 2 breach of the Work Health and Safe­ty Act 2011 (Qld). A Cat­e­go­ry 2 breach aris­es when a per­son has a health and safe­ty duty, fails to com­ply with that duty and the fail­ure expos­es an indi­vid­ual to a risk of death or seri­ous­ly injury or ill­ness. (Queens­land, like NSW, is a state that has adopt­ed the nation­al mod­el WHS laws.)

There was an uncon­trolled inter­ac­tion of pedes­tri­ans and pow­ered mobile plant, name­ly fork­lifts at the work­place, includ­ing the pack­ing room”, lead­ing to a sit­u­a­tion where a work­er was struck by a fork­lift oper­at­ed by a col­league, result­ing in soft tis­sue injuries to the right abdomen. 

As explained in para­graph 18 of the judgment,

… the charge to which the com­pa­ny was plead­ing guilty involved its fail­ure to put in place visu­al and phys­i­cal bar­ri­ers to ensure work­ers’ safe­ty by sep­a­rat­ing pedes­tri­ans and fork­lifts and to imple­ment an effec­tive traf­fic plan. Whilst the neg­li­gent act of the fork­lift dri­ver was the imme­di­ate cause of the risk of injury mate­ri­al­is­ing, the charge against the com­pa­ny involved acts and omis­sions for which the com­pa­ny was direct­ly respon­si­ble. The breach was not one for which the com­pa­ny was mere­ly vic­ar­i­ous­ly liable for Mr Kumar’s neg­li­gent oper­a­tion of the fork­lift. It was a dis­tinct and ongo­ing breach, by the com­pa­ny, over the dura­tion of the charged period.”

The Mag­is­trate at first instance imposed a fine of $25,000. The max­i­mum penal­ty was $1.5 mil­lion. The pros­e­cu­tor appealed the deci­sion of the Mag­is­trate seek­ing a fine of $90,000 be imposed.

The Views of the Magistrate

The case is notable for the com­ments made by the Mag­is­trate at first instance in rela­tion to notions of per­son­al respon­si­bil­i­ty, and the response of Judge Reid to those state­ments on appeal. 

At para­graph 19 of the judg­ment Reid DCJ stated:

Despite this clear enun­ci­a­tion of the lia­bil­i­ty of the com­pa­ny, the Mag­is­trate, from the com­mence­ment of the hear­ing, was undu­ly focused on his per­son­al view that the dri­ver of the fork­lift was respon­si­ble for what occurred, and the com­pa­ny was, in his opin­ion, sim­ply unable to pre­clude him from oper­at­ing the fork­lift negligently.” 

His Hon­our then cit­ed myr­i­ad instances from tran­script dur­ing the first instance hear­ing where the learned Mag­is­trate had pro­fessed this view. These included:

There’s not much the com­pa­ny can do about an individual’s stu­pid­i­ty though, is there?” 

Why is it even nec­es­sary to have a pro­ce­dure to tell peo­ple that when they’re revers­ing they have to look over their shoul­ders in the direc­tion that they’re going… Have we become that much of a nan­ny state you’ve got to tell peo­ple how to exist.”’

Yes, but doesn’t this have to be bal­anced against the individual’s stu­pid­i­ty… how can you make some­one look over their shoul­ders when they’re revers­ing, apart from telling them to do it?”

I don’t see how his [the fork­lift oper­a­tor’s] stu­pid­i­ty ought to be sheet­ed home in its entire­ty to the employ­er and there’s no per­ma­nent injury”.

this per­sis­tent infan­til­i­sa­tion of our soci­ety that I have a prob­lem with.”

there’s got to be a point at which the employer’s lia­bil­i­ty… which is almost absolute… is just mit­i­gat­ed by indi­vid­ual stu­pid­i­ty… What can a com­pa­ny do to mit­i­gate for indi­vid­ual stu­pid­i­ty… that’s the issue I’ve got.”

I just won­der… to what extent when this whole inci­dent was the result of Kumar’s stu­pid­i­ty… so to what extent should lia­bil­i­ty then be extend­ed to the company?”

Why should an employ­er… have to try to divine every inci­dent of pos­si­ble stu­pid­i­ty that their employ­ees might descend to dur­ing a work day? There’s got to be some point which the – enough is done and it’s the employee’s fault if they injure themselves.”

If he was look­ing where he was going, it wouldn’t have hap­pened.

why shouldn’t the employ­er be able to rely upon the State’s test­ing and cer­ti­fi­ca­tion of this fel­low as being com­pe­tent to oper­ate a fork­lift with­out hav­ing to descend to mark­ing lines and all the rest of it you say should be done in a ware­house where fork­lifts are com­ing and going all the time. Where they’ve employed some­one who’s sup­pos­ed­ly expe­ri­enced and has been licensed to oper­ate the thing, and where it’s a rea­son­able infer­ence to draw in those cir­cum­stances that the oper­a­tor under­stands that when you are trav­el­ling in a cer­tain direc­tion, that’s the way you look at the same time… it’s not an oblig­a­tion to pre­vent [acci­dents]. It’s just to take rea­son­able steps.”

I’d say 90 per cent of the fault is Kumar’s. There may be some minor fault for the com­pa­ny because it didn’t have… line mark­ings for exam­ple but that wouldn’t have pre­vent­ed the acci­dent… in some cas­es, it’s obvi­ous that it’s the employer’s fault. But a mat­ter like this, it’s not, in my view.”

There has to be a point at which com­mon sense has to apply in rela­tion to the extent to which an employ­er has lia­bil­i­ty, cul­pa­bil­i­ty, sheet­ed home to them. It is very easy to come [up] with all sorts of schemes in hind­sight as to what could or should have been done to pre­vent an injury, but, as I have said, an employ­er must – or is enti­tled to pro­ceed on the basis that – on the expec­ta­tion that (an) … appro­pri­ate­ly qual­i­fied licensed employ­ee is going to use his com­mon sense.”

This inci­dent was entire­ly caused by the neg­li­gence and care­less­ness of a sin­gle employ­ee oper­at­ing in a way he was not sup­posed to, that the assert­ed changes to oper­at­ing pro­ce­dures that had been advanced by the pros­e­cu­tor, in my view, would not have done much to change.”

The Dis­trict Court Rejects the Mag­is­trate’s Approach

In his judg­ment, Reid DCJ repu­di­at­ed the approach adopt­ed by the learned Mag­is­trate, which was reflect­ed in the afore­men­tioned quotes cit­ed in the decision. 

At para­graph 39, his Hon­our stated:

It is clear the Mag­is­trate mis­un­der­stood, or refused to under­stand, the true nature of the company’s breach. In par­tic­u­lar, his repeat­ed ref­er­ences to the fact that phys­i­cal bar­ri­ers would not have obvi­at­ed or at least min­i­mized the risk, is almost unin­tel­li­gi­ble.”

At para­graph 43, his Hon­our observed that the learned Magistrate,

…appears to have been fix­at­ed on the view that to have required the employ­er to have tak­en whol­ly appro­pri­ate steps was an exam­ple of what he dis­parag­ing­ly referred to as the nan­ny state’ and this per­sis­tent infan­til­i­sa­tion of society’ ”.

His Hon­our had a very dif­fer­ent per­spec­tive (at para­graph 44), reflect­ing the ortho­dox view on the effi­ca­cy of WHS laws:

Exam­i­na­tion of the pub­lic record shows in fact that such pro­tec­tive con­duct has over many years result­ed in the sav­ing of many lives, a sig­nif­i­cant reduc­tion in seri­ous injury and count­less hours of saved pro­duc­tiv­i­ty through a marked reduc­tion in indus­tri­al acci­dents in Australia.”

His Hon­our lat­er held (at para­graph 49):

The pres­ence of visu­al and phys­i­cal bar­ri­ers would have gone a long way to over­com­ing the risk of the inci­dent mate­ri­al­is­ing. This appears to have been large­ly, even con­scious­ly, over­looked by the Mag­is­trate.”

The judge, after sur­vey­ing rel­e­vant author­i­ties on sen­tenc­ing, imposed a fine of $60,000, con­sid­er­ing fac­tors includ­ing the penal­ties in oth­er sim­i­lar cas­es, the objec­tive seri­ous­ness of the risk, the WHS breach record of the employ­er, the fact the breach con­tin­ued over a peri­od of about 7 weeks and the minor injury to the worker.

Human Frailty Can’t Be Ignored

WHS mea­sures are some­times derid­ed as being the prod­uct of zealots or job­worths’ who take a per­verse plea­sure in impos­ing and enforc­ing pet­ty rules, or the result of a soci­ety that now goes to irra­tional lengths to shield its cit­i­zens from any form of poten­tial harm, no mat­ter how minor or incon­ceiv­able. While this might make for an inter­est­ing debat­ing top­ic at a din­ner par­ty or on social media, it is not the prop­er basis upon which to deal with the issue of WHS in the workplace. 

The pri­ma­ry duty in WHS leg­is­la­tion is clear: employ­ers must elim­i­nate risks to health and safe­ty, so far as is rea­son­ably prac­ti­ca­ble, and if it is not rea­son­ably prac­ti­ca­ble to elim­i­nate risks to health and safe­ty, min­imise those risks so far as is rea­son­ably practicable. 

Safe sys­tems of work are designed to take account of human frailty; they are meant to be, to use the some­what pejo­ra­tive cliché, fool­proof”. While work­ers do have an oblig­a­tion to take rea­son­able care for their own health and safe­ty and that of oth­ers, if an employ­er has not dis­charged its oblig­a­tion to iden­ti­fy haz­ards and con­trol risks in the work­place then defence argu­ments based on the fail­ure of an employ­ee to apply com­mon sense or act with pru­dence will be unlike­ly to find favour.