There’s been an explosion at your quarry.

A charge was prematurely detonated – 1 person is dead, others are seriously injured. Police are on site, the coroner is in attendance and so are the inspectors.

Who’s in the gun for prosecution?

The quarry owner? The quarry manager? Senior personnel? Other employees?

The fact is all of those persons are potentially liable because each of them, albeit in varying degrees, have a duty of care in the workplace.

Upholding this duty of care is of vital importance.

And it’s not just important because of the severity of the potential financial penalties, criminal convictions, and possible jail terms. But most damaging, you could lose friends and they can never be replaced.

Whilst this is nothing that you probably have not been told before, it does not hurt to remind ourselves of the fact that nobody wants to go home after a hard day’s work and tell your family that your best mate at work was seriously injured or even killed because of something you did – or could have prevented had you met your duty of care.

It is not possible to cover everything in one article, but what this article aims to do is to get all persons involved in the operation of a quarry thinking about their duty of care, and upholding this duty to ensure safety in the workplace.

Duty of Care

The duty of care is imposed in two areas. The law imposes:

1. a common law duty of care; and
   
2. a statutory duty of care.
   

The statutory duties of care stem specifically from Acts of Parliament – for example:

a) duties imposed under the Wrongs Act 1958 (Vic);

b) duties imposed under the Occupational Health & Safety Act 2004 (Vic); and

c) duties imposed under the Dangerous Goods Act 1985 (Vic) just to name a few.

This article will briefly discuss the common law duty of care, and concentrate more fully on the duties imposed under the Occupational Health & Safety Act 2004 (Vic) (Act) because if you comply with your duty under the Act, then you will probably meet your common law obligation.

Common Law Duty of Care

At common law, the law of negligence dictates that every person owes a duty of care to his/her neighbour.

“Duty” may be defined as an obligation, recognised by law, to avoid conduct fraught with unreasonable risk of danger to others; i.e., a liability not to do things that will probably cause harm to others.

No generalisation can answer the question as to upon what basis Courts will hold that a duty of care exists. It is agreed that a duty must arise out of some “relationship” or some “proximity” between parties, but that “relationship” cannot be captured in any precise formula.

In essence it is this:

One must take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure his/her neighbour.

And who is your “neighbour”? The answer is persons who are so closely and directly affected by your act that you ought reasonably have them in contemplation as being affected when you are directing your mind to the acts or omissions in question.

For example, an employer clearly owes a duty of care to his employees, and a quarry operator clearly owes a duty of care to the general public in and around a quarry site.

Statutory Duty of Care - Occupational Health & Safety Act 2004 (VIC)

In providing a summary of the Act, this section will look at:

1. The objects of the Act;
   
2. Who owes the duty of care?;
   
3. Who is the duty of care owed to?;
   
4. What are the duties?; and
   
5. What are the penalties?.

Objects

The Act is designed to provide a broad framework for improving standards of workplace health and safety to reduce work related injury and illness.
Its objectives are to:

1. secure the health, safety and welfare of employees and other persons at work;
   
2. eliminate risks at source;
   
3. protect the general public from health and safety risks; and
   
4. promote consultation and participation amongst employers, employees and health and safety organisations to implement health and safety standards.
   

The message which rings loud and clear is that the object of the Act is to have persons at a workplace take preventative measures to eliminate risk to health and safety.

The Act requires pre-emptive action – its focus is prospective, not retrospective. Hence it is concerned with hypotheticals – it is based on degrees of probability and requires one to attempt to predict what might happen and prevent that from happening.

Who’s provided protection under the Act?

All workers, including employees, contractors, subcontractors (including their employees), outworkers and the general public are provided protection under the Act..

Who owes the duties under the Act?

Under the Act, the duties of care are owed by employers, employees and senior personnel (such as officers of companies). This article deals with each of their duties in turn.

What are the duties?

Employer's duties

General Duty

The Employer is required to eliminate risks to health and safety so far as is reasonably practicable. If it is not reasonably practicable to eliminate risks, then the employer has a duty to reduce risks so far as is reasonably practicable.

BUT what does reasonably practicable mean?

The words ‘so far as is reasonably practicable’ are words of limitation. What is ‘reasonably practicable’ in a given situation is to be determined objectively. The duty-holder must do what a reasonable person would do in the particular circumstances by putting in place ‘reasonably practicable’ measures.

The Act states that in determining what is reasonably practicable in relation to ensuring health and safety, regard must be had to the following:

• The likelihood of the hazard or risk eventuating (i.e. the probability of a person being exposed to harm);
  
• The degree of harm potentially involved (i.e. the potential seriousness of injury or harm);
  
• What a person knows or ought to reasonably know, about the hazard or risk and any ways of eliminating the hazard or risk – in this case, where the duty holder is not aware of a particular work related hazard, it will be relevant to ascertain whether other participants in, or advisers to, the relevant industry were aware of it.
  

A clear example is guarding on machinery – the Victorian Department of Primary Industry has recently done a blitz on guarding, and it would be difficult for a quarry operator to say that it was not aware of the necessity of guarding on machinery as a form of eliminating a hazard.

• The availability and suitability of ways to address the risk/hazard
  
• The costs of addressing the risk/hazard – this is important to look at as there is very little guidance on how this is considered. It does not mean that if the cost of eliminating or fixing something is very high, it does not need to be done. The law suggests, if something is capable of being done, then it should be done – and cost is only one aspect that has to be considered.
  

The test is that duty holders are obliged to take risk prevention measures unless the cost of a preventative measure would be grossly disproportionate to the risk assessed. Hence the key question is: is the expenditure justified by reference to the degree of risk to be prevented?

In summary, when considering what is reasonably practicable, a computation has to be made by any person upon whom the duty rests, in which the quantum of risk is placed on one scale and the sacrifice involved in the measure necessary for averting the risk is placed on the other.

Specific Employer Duties

Without limiting its general duty, the employer must also:

• Provide and maintain safe plant and systems of work (e.g. providing effective guards on machines and regulating the pace and frequency of work);
  
• Ensure that the use, handling, storage and transport of plant and substances is safe and without risk to health (e.g. toxic chemicals, dusts and fibres);
  
• Ensure that the workplace under its control is safe and without risk to health (e.g. controlling noise and lighting levels);
  
• Provide adequate facilities (e.g. first aid, washrooms, toilets etc); and
  
• Provide information, instruction, training and supervision to the workers so they can work safely. An employer must provide employees with health and safety information in languages appropriate for their employees, including the name of any person to whom employees may make an enquiry or complaint about health or safety.
  

Duty to Monitor Health

Employers must so far as is reasonably practicable:

• monitor the health of the employees;
  
• monitor the conditions of the workplace, keep information and records on the health and safety of the employees (e.g. heat, cold, dust levels and so on);
  
• provide information to employees on health and safety;
  
• keep records on the health and safety of their employees; and
  
• employ or engage the services of a person suitably qualified in OHS to provide advice on the health and safety of their employees.
  

Duties of employers and self-employed to other people

Employers and the self-employed must ensure that the health and safety of members of the public is not adversely affected by their business activities.

This duty includes matters such as protecting visitors to a workplace, protecting the general public from construction or demolition work being done near roads and footpaths, and preventing the emission of hazardous substances from a workplace.

Duty of Employer to consult with employees

Since January this year employers have an increased obligation to consult with their employees. The employer must consult when:

• identifying, assessing and controlling hazards or risks;
  
• making decisions about workplace facilities;
  
• making decisions about OHS issues, how to consult and providing information and training;
  
• deciding on the membership of the OHS committee; and
  
• proposing changes to the workplace, the plant or the substances, the conduct of the work.

What actions should an employer/quarry owner be taking?

In summary, having regard to their duties, quarry owners should:

1. Conduct regular risk assessments;
   
2. Ensure all managers and staff understand their responsibilities under the Act - provide adequate and regular training for employees;
   
3. Regularly review internal systems and procedures and take action to eliminate health and safety risks; and
   
4. Implement consultation mechanisms

Quarry operators must always think about taking preventative action.

Duties of those who manage or control workplaces

Since last year, section 26 of the Act has been amended to provide that a person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace, must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risk to health.

Those who manage or control a workplace could include the employer, the occupier of the workplace, the owner of the workplace and others including a quarry manager.

This is now a positive duty of the quarry manager personally.

Because the provision is fairly new, there have not yet been any reported prosecutions and as such we have no real guidance on how a Court will interpret the provisions.

What can be said with confidence is that a quarry manager is now more likely to be prosecuted if, for example, he knows of a safety risk, or is made aware of a safety risk and does not act on that knowledge.

 

What actions should quarry managers be taking?

Quarry managers should:

• ensure that they understand their responsibilities under the Act
  
• undertake adequate training;
  
• be proactive about eliminating risk and designing, implementing, maintaining and evaluating the organisation’s occupational health and safety system;
  
• ensure that staff have the appropriate competencies and that each of them have a health and safety induction.

 

Duties of employees

Other employees also have duties at work.

All employees have responsibility to take reasonable care for their own health and safety and the safety of others who might be affected by their actions.

For example, if you are an employee, you should not take short cuts when doing your job that might put yourself or someone else at risk and you should not play practical jokes that could hurt someone.

Employees must:

• cooperate with their employer when they are taking action to improve health and safety;
  
• follow safety policies and procedures;
  
• attend Occupational Health & Safety training;
  
• follow the advice they have been given; and
  
• use safety equipment supplied by their employer.
  

General duty of everyone

There is also a general duty of every person at the workplace. A person who, without lawful excuse recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence.

What’s an indictable offence? Well it means:

• You can go to jail.
  
• A number of occupations will be denied to you.
  
• It will always appear on your record when a public check is made.
  

The penalty for a natural person under the Act could be imprisonment for a period not exceeding 5 years. It is not something that one can afford to take lightly.

Duties of Officers

Officers are also potentially liable under the Act.

Officers include, directors. secretaries and persons in a position to influence the financial position of the company.

An officer could be liable under the Act if it is proved that the officer failed to do all that he or she could reasonably have done (or have been expected to do) in the circumstances to procure compliance by the relevant entity with its duties having regard to:
- what the officer knew (or ought reasonably to have known) about relevant matters, and
- his or her ability to make decisions and/or influence decisions within the entity regarding such matters).

An officer can be convicted of an offence regardless of whether the body corporate has or has not been convicted of an offence.

What actions should officers take?

Officers should:

• share and record information;
  
• allocate sufficient resources to occupational health & safety
  
• engage/employ competent advisers;
  
• implement adequate procedures;
  
• provide induction programs and training;
  
• most importantly – act on any foreseeable risk to health and safety and do not turn a blind eye.
  

Penalties

The maximum penalties under the Act are:

• for a body corporate: $943,290; and
  
• for individuals: $188,658.
  

As mentioned earlier, there is also the penalty for reckless endangerment of up to 5 years imprisonment.

In summary:

1. Large penalties exist for non-compliance with the Act;
   
2. Quarry Operators must take preventative action to eliminate risks to health & safety and in particular they should:
   

   - conduct risk assessments;
   - train employees
   - implement health and safety systems;
   - consult with employees; and
   - keep adequate records.
   

Whose duty is it? It’s everyone’s duty.
Who really cares? Everyone should care.

For further information, please contact Levent Shevki on + 61 3 9608 2278 or l.shevki@cornwalls.com.au