When a major work safety incident occurs and worker error is suspected, employers are often found questioning how this impacts its own liability under work health and safety (WHS) legislation. This concern becomes even more pressing when the employer must respond to an investigation by a work safety regulator into the incident.
The true implications of worker error are not just about understanding the incident itself[1]. It involves assessing other crucial factors, such as the employer’s safety compliance status, including what measures were in place and what was reasonably practicable, and the worker’s role and behaviour in relation to the safety risk. Despite the complexity, there are some general scenarios that highlight the relationship between worker error and employer liability and culpability.
Where worker error has exposed the worker to a health and safety risk
WHS harmonised legislation imposes a primary duty of care on PCBUs (employers) to ensure, so far as reasonably practicable, the health and safety of its workers. At its core, this duty necessitates employers taking a proactive, structured and systematic approach to the management of health and safety risks.
The duty extends to requiring employers to plan for human error of workers, variously characterised in authorities from carelessness, inadvertence, inattention, haste, foolish disregard of personal safety, through to deliberate non-compliance with safe systems of work. The expectation is that such potential worker error is picked up in risk assessments and effectively managed by the employer via dedicated control measures (e.g. work design, safe work procedures and training). This extensive duty poses a substantial barrier against faulting a careless (etc.) worker exposed to a health and safety risk so as to deny employer responsibility under its primary duty. That is, ordinarily, unless it could be said that the health and safety risk associated with the careless (etc.) conduct was not reasonably foreseeable, or otherwise it was not reasonably practicable to manage such risk.
Where worker error has contributed to or caused a health and safety risk exposure to others
Worker duty
Under WHS harmonised legislation, workers have their own health and safety duty – which includes to take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons. Where worker’s error is found to have breached this duty, this could lead to personal liability for the worker (in the form of an offence) under WHS harmonised legislation, as the recent decision in SafeWork NSW v O’Sullivan[2] demonstrates.
O’Sullivan was employed as yard supervisor/forklift truck operator. He was prosecuted for breaching his worker duty, specifically, to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons. O’Sullivan stepped off a forklift to undertake a task, and the forklift rolled backwards down a slope, fatally injuring a driver loading his truck. His failures included not applying the park brake, lowering the tynes on the forklift or placing a chock behind the forklift rear wheels, prior to leaving the forklift unattended. O’Sullivan pleaded guilty to the offence based on failing to comply with his worker duty, and in May this year, was sentenced by the court to pay a fine of $7,500.
Scenarios
Appreciating that each incident will turn on its own facts informing the approach of the work safety regulator (and ultimately that of a court), set out below are some general observations to keep in mind where suspected worker error is involved.
- Ordinarily, even when obvious worker error is present, the focus of the work safety regulator when investigating a major safety incident is on the employer’s relevant safety compliance, and whether the employer has effectively managed the safety risk underlying the incident in question[3].
- Not every worker error will amount to a breach (or be prosecuted by the work safety regulator as a breach) of the worker duty under WHS harmonised legislation, even if considered to be a cause of the safety incident. Typically, where the work safety regulator seeks to prosecute worker error as a breach of worker duty, the worker’s conduct is outside acceptable employment standards or operational requirements, especially in circumstances where the worker has relevant supervisory or managerial responsibility.
- Just because a worker is found to have breached their duty, does not mean that the employer cannot also be found to have breached its duty (and have committed an offence) with respect to the same incident. There are multiple duty holders under WHS harmonised legislation, each capable of being found to have breached their respective duty in relation to the one incident. So, where there are also employer failings in its safety compliance, in that the employer has failed to effectively control a safety risk resulting in an individual being exposed to the safety risk in question[4], there is a reasonable likelihood of the employer also being prosecuted and found to have breached its primary duty of care.
This was the case in SafeWork NSW v O’Sullivan. In the sentencing decision there was indication of deficiencies in John Cook’s (the employer) relevant safety compliance, including a lack of adequate supervision of forklift safe operating procedure, which could be said to have also caused the forklift to collide with the driver (or more aptly put – a failure to prevent the risk of forklift collision). Unsurprisingly, it has been reported that John Cook was separately prosecuted for breach of its primary duty of care in respect of the incident and has recently entered an enforceable undertaking with the work safety regulator in satisfaction of the prosecution against it.
- In the case where both the worker and employer are prosecuted for breaching their duties, it may be difficult to neatly disentangle respective responsibilities associated with worker error and employer failings underlying the incident, possibly affecting employer’s liability but more commonly impacting on the employer’s culpability in relation to the incident. That is, the prosecution of a worker for breaching their worker duty, depending on the circumstances, may result in reduced culpability for the employer in respect of any successful prosecution for breaching its primary duty of care. Indeed, even if a worker is not prosecuted by the work safety regulator for breaching their duty, the worker conduct may still be relied upon by the employer to reduce its own culpability. In both cases, this is commonly seen in the context of submissions on sentencing by the employer that worker conduct has lessened the objective seriousness of the employer’s offence, thereby warranting a reduced penalty by the court.
Employer Takeaways
Employers should strive to build structured and systematic work safety compliance systems, which effectively control health and safety risks and thereby prevent serious workplace safety incidents from occurring. Relevantly, the system should consider and address foreseeable human error in relation to work performance.
Where a major workplace safety incident does occur, worker error may well impact on employer’s liability or culpability in relation to the incident under WHS legislation[5]. To properly assess this matter, it is important for the employer, at the earliest opportunity, to conduct a thorough (and ideally privileged) investigation into the incident. The investigation should look not just at the immediate or direct cause of the incident, but the secondary cause, as the latter will be critical to assessing employer liability.
By gathering information early, an employer can make well-informed, risk based and strategic decisions when responding to a work safety regulatory investigation, relevantly, which takes into account the interplay between the employer’s actions and responsibilities and the worker’s error related to the incident. Early assessment of an employer’s liability and potential culpability could influence decisions relevant to responding to a regulatory investigation (and beyond), such as:
- representation of workers at inspector interviews
- whether to challenge compliance notices, such as improvement notices
- the nature of responses during regulator’s/inspector’s interviews or to notices to provide written information
- whether to pivot to an enforceable undertaking at the earliest opportunity if possible
- at an early stage of any subsequent prosecution proceedings, whether to make (and the nature of) representations to the prosecutor as to liability, engage in effective plea bargaining or gear up to contest the charge.
At a high-level, this enables the GC/employer decision-maker(s) to make early informed decisions regarding the commitment of resources and expenditure in responding to a regulatory investigation (and indeed any subsequent prosecution); specifically, to determine whether the level of commitment contemplated is warranted having regard to perceived gains.
For further information, please contact:
Sudhir Sivarajah, Bird & Bird
sudhir.sivarajah@twobirds.com
[1] Under WHS harmonised legislation, employer liability (under the primary duty of care) is based on the existence of a health and safety risk underlying the incident, and not on the occurrence of any injury, illness or even death associated with the incident, which may be a manifestation of the risk.
[2] SafeWork NSW v Karl O’Sullivan [2024] NSWDC 142 (1 May 2024).
[3] This is the focus of the ‘secondary cause’ analysis referred to in Employer’s Takeaway section.
[4] Assuming here a category 2 offence, noting also that the safety risk is a risk of death or serious injury or illness.
[5] Even where worker error may not have any such impact, this is also important for employer to know (especially, early), as this too could influence an employer’s response to the work safety regulatory investigation and beyond: see further main text below.
