OCHS12015 OHS Law Week 8

Two aspects to the primary duty of care:
– Duty on PCBU to ensure, so far as is reasonably
practicable, the health and safety of workers while
they are at work (s.19(1) WHS Act 2011); and
– Duty on PCBU to ensure, so far as is reasonably
practicable, that the health and safety of other
persons is not put at risk from work carried out as
part of the business or undertaking (s.19(2) WHS
Act 2011).
s.19(1) WHS Act 2011
A person conducting a business or undertaking must
ensure, so far as is reasonably practicable, the health and
safety of:
(a) workers engaged, or caused to be engaged by the
person; and
(b) workers whose activities in carrying out work are
influenced or directed by the person.
while the workers are at work in the business or
undertaking
Who is a worker?
(s.7 WHS Act 2011)
A person is a worker if the person carries out work in any
capacity for a PCBU, including work as—
(a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor; or
(d) an employee of a labour hire company who has been
assigned to work in the person’s business or undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer.
When is a worker at work?
Bolton Met Borough Council v Malrod Insulation Ltd
– “the use of the words “at work” cannot on any common
sense basis mean that the duty…arises only when the men
are actually at work. Such a construction would lead to a
conclusion that the duty would come to life when the
employees reported to work in the morning, that it would
exist throughout the working day but that it would then fall
into limbo at the end of the day only to be revived next
morning. In this state of affairs, if a safety inspector were to
come onto a site after the end of the working day and find a
defect in the plant he would be powerless to institute
proceedings for breach of duty…”
s.19(2) WHS Act 2011 (the ‘public safety’
duty)
A person conducting a business or undertaking must
ensure, so far as is reasonably practicable, that the
health and safety of other persons is not put at risk
from work carried out as part of the conduct of the
business or undertaking.
R v Board of Trustees of the Science Museum [1993]
Court held that a museum had exposed visitors to a risk where
the air conditioning tower was shown to be a source of
legionnaire’s disease, even though it was not proven that that
anyone had actually contracted the disease.
R v Mara (1987)
Court held that a person (in this case a contractor) may be
injured ‘as a result of’ the undertaking of another outside
working hours if the premises are left in an unsafe state.
R v Associated Octel Pty Ltd [1995]
A contractor was injured when cleaning a tank in a chemical factory while
the factory was closed for maintenance.
Court of Appeal & House of Lords (on appeal) – approved the decision in
Mara that ‘the conduct of the undertaking’ of the factory involved
essential cleaning and repairs as well as actual production, and as a result
the factory owners were found guilty under equivalent UK legislation.
Lord Hoffman: The employer must take reasonable practical steps to
avoid risks to the contractor’s servants which arise, not merely from the
physical state of the premises…but also from the inadequacy of the
arrangements which the employer makes with the contractors for how
they will do the work.
Additional duties are imposed on:
• PCBUs with management or control of workplaces,
fixtures, fittings or plant
(ss.20 & 21 WHS Act 2011)
• Upstream PCBUs:
• Designers (s.22 WHS Act 2011)
• Manufacturers (s.23 WHS Act 2011)
• Importers (s.24 WHS Act 2011)
• Suppliers (s.25 WHS Act 2011)
• Downstream PCBUs that install, construct or
commission plant or structures (s.26 WHS Act 2011)
What must a PCBU do
(s.19(3) WHS Act 2011)
PCBU –
Primary duty of
care
Provision and
maintenance of
safe work
environment
Provision and
maintenance of
safe plant and
structures
Provision and
maintenance of
safe systems of
work
Monitor health
of workers and
conditions of
workplace
Safe use,
handling and
storage – plant,
structures,
substances
Adequate
facilities for
Welfare
Information,
training,
instruction,
supervision
PCBU –
Mgt/control of
workplace or
fixtures, fittings,
plant
PCBU –
Upstream
duty holders
e.g suppliers
manufacturer
Safe work environment
Physical
Mental
Psychosocial
Ensuring a safe working environment extends to
managing risks generated by the external
environment, such as robbery and violence.
Tooma (2008):
– Security risk management is arguably implied in
the scope of the general safety duties. The
employer’s duty…would extend to ensuring that
employees are not exposed to security risks.
Cahill v NSW Department of Community Services [2008]
– The NSW Department of Community Services was
successfully prosecuted in relation to an incident where a
violent client (whose propensity for violence was well
known to Department managers) attacked one of the staff.
Ensuring a safe working environment even
extends to places which are under the control of
another person
Inspector Patton v Western Freight Management
A truck driver was crushed at a depot while unloading.
Held: the employer truck company should have taken steps to
see that the depot, even though operated by another company,
had safe working systems in place in relation to where drivers
stood when vehicles were reversing.
An employer must also take precautions to
prevent a worker suffering injury as a result of
the worker’s own negligence or inadvertence.
Holmes v R.E. Spence & Co Pty Ltd (1993)
R v Australian Char Pty Ltd [1999]
Safe plant and structures
WHS Regulation 2011
Chapter 5: Plant & structures
– Breach of a regulation provides evidence of breach of the
primary duty of care
Department of Mineral Resources NSW v Blue Circle
Southern Cement Ltd (1995)
– An employee was killed when a bulldozer he was operating
rolled over. The dozer was not fitted with a roll bar as
required by regulations.
• WHS Plant Code of Practice
– Not applying a recommended control is evidence that the
duty holder has not implemented a ‘reasonably
practicable’ control measure and provides evidence (in the
absence of some other control) of breach of the primary
duty of care
Safe system of work
A safe system of work extends to ensuring safe
people movement at the workplace
Morrison v Hams [2002]
Hams operated a small gypsum mine. One of the drivers who
came to load his truck brought his 2 year old son with him one
day. The boy was run over by another truck and killed.
Held: that Hams had no system for managing the whereabouts
of people on the site, and allowed visitors such as the boy to be
present when loading operations were in progress.
It is not enough to have a system in place, it must
be enforced
Schultz v Tamworth City Council (1995)
The system involved a chain which pulled the hides of animals in an
abattoir, which wrapped around a drum, was pulled out when the
hides were to be removed, and then retracted quickly onto the
drum after each animal had been processed. The practice had
developed, and was known to management, of workers wrapping
the chain around their hands between animals rather than letting it
completely retract.
R v Commercial Industrial Construction Group [2006]
“…the formal adoption of a satisfactory safety management
system will not have the beneficial effects intended unless it is
accompanied by the employer’s active implementation of the
system in the workplace…The obligation requires the employer
to ensure that procedures and instructions are actively and
positively complied with by employees. Not only must
employees be appropriately trained but there must be ongoing
supervision and compliance audits, to ensure that the system is
being applied in practice. Employee compliance with the safe
system of work must be constantly monitored by the employer.”
Information, training, instruction and
supervision
Training
WorkCover NSW v NSW Police Service [2002]
The NSW police service was successfully prosecuted in relation
to the shooting deaths of 2 constables. The police service had
failed to provide proper training to the officers in emergency
response techniques when dealing with someone confronting
them with a rifle.
South Sydney Junior Rugby League Club Ltd v Inspector
Bestre [2005]
A club employee was put at risk during an armed hold up at the
club. In addition, to failing to provide a safe system of work, the
club was prosecuted fro failing to provide training to the
employee in dealing with the situation.
WorkCover v The Crown (1995)
No formal training or instruction was given to a driller’s assistant
who was killed while operating a drilling rig to install a device to
monitor the water table level.
Supervision
Haynes v CI&D Manufacturing Pty Ltd (1995)
Unskilled workers were left to their own devices to carry out a
dangerous procedure on a week end.
Monitoring
(s.19(3)(g) WHS Act 2011
• Monitor the health of workers; and
• Monitor conditions at the workplace

  • for the purpose of preventing illness or injury of workers
    arising from the conduct of the business or undertaking
    Providing accommodation
    (s.19(4) WHS Act 2011)
    If:
    • (a) a worker occupies accommodation that is owned by or
    under the management or control of the person conducting
    the business or undertaking and
    • (b) the occupancy is necessary for the purposes of the
    worker’s engagement because other accommodation is not
    reasonably available:
  • the PCBU must, so far as is reasonably practicable, maintain
    the premises so that the worker occupying the premises is not
    exposed to risks to health and safety.
    What is “reasonably practicable”?
    Edwards v National Coal Board [1949]
    Asquith LJ: ‘Reasonably practicable is a narrower term than physically
    possible
    and seems to me to imply that a computation must be made…in
    which the quantum of risk is placed on one scale and the sacrifice
    involved in the measures necessary for averting the risk (whether in
    money, time or trouble) is placed in the other
    and if it be shown that there is a gross disproportion between them
    (ie: the risk is insignificant in relation to the sacrifice) the defendants
    discharge the onus on them.’
    Austin Rover Ltd v Inspector of Factories [1989]
    Goff LJ: …the risk of the accident has to be weighed against the
    measures necessary to eliminate the risk, including the cost
    involved. If, for example, the defendant establishes that the risk
    is small, but that the measures necessary to eliminate it are
    great, he may be held to be exonerated from taking steps to
    eliminate the risk on the ground that it was not reasonably
    practicable for him to do so…
    [The effect of the previously decided cases] is to bring into play
    foreseeability…
    WorkCover Authority (NSW) v Cleary Bros (2001)
    Walton J: In my view, where there is a known risk which entails
    the potential for serious injury to persons in the workplace, the
    defendant will generally have to demonstrate that the costs,
    difficulty or trouble occasioned by the measures significantly
    outweigh the risk.
    Slivak v Lurgi (Aust) Pty Ltd (2001)
    Gaudron J: …three general propositions are to be discerned from
    the decided cases:
  1. The phrase ‘reasonably practicable’ means something
    narrower than “physically possible” or “feasible”;
  2. What is ‘reasonably practicable’ is to be judged on the basis
    of what was known at the relevant time; and
  3. To determine what is reasonably practicable it is necessary to
    balance the likelihood of the risk occurring against the cost,
    time and trouble necessary to avert that risk.
    Baiada Poultry Pty Ltd v R [2012] HCA
    High Court: The words ‘reasonably practicable’ indicate that the duty
    does not require an employer to take every possible step that could
    be taken. The steps that are to be taken in performance of the duty
    are those that are reasonably practicable for the employer to take to
    achieve the identified end of providing and maintaining a safe
    working environment.
    Bare demonstration that a step could have been taken and that, if
    taken, it might have had some effect on the safety of a working
    environment does not, without more, demonstrate that an employer
    has broken the duty…
    s.18 WHS Act 2011 – What is reasonably
    practicable
    Do all that can reasonably be done taking into account:
    • the likelihood of the hazard or risk occurring;
    • the degree of harm that might result from the hazard or risk
    • what the duty holder knows, or ought reasonably to know
    about the risk and ways of eliminating or minimising the risk;
    • the availability and suitability of ways of eliminating or
    minimising the risk;
    Only after considering all the above points,
    can the cost of eliminating or minimising the
    risk be considered.
    The duty holder ought reasonably to know
    Chugg v Pacific Dunlop Ltd [1988] VR 411
    Kaye & Beach JJ: “…what is reasonably practicable is not to be
    assessed subjectively according to the knowledge and
    circumstances of the employer, but rather it is to be determined
    objectively” applying knowledge acquired from all sources.
    Ormiston J: “…the state of assessment of this aspect of
    practicability requires an analysis of both the subjective
    knowledge of the employer and the objectively determined
    knowledge of the industry. Industry knowledge may be
    ascertained by reference to sources like regulations, codes,
    standards and articles in trade journals.”
    Codes of practice
    • Are evidence of what is known about a particular
    hazard or risk, risk assessment or risk control.
    • Can be relied on in determining what is reasonably practicable.
    • Are admissible in a court as evidence of whether or not a duty
    has been complied with.
    • Do not impose mandatory legal obligations; persons may
    comply in a manner that is different so long as it provides a
    standard of health and safety that is equivalent to or higher
    that the standard required in the code.

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