Dreamworld deaths prompt introduction of Industrial Manslaughter Laws and what this means for the safety of workers

Monday, August 20, 2018

Employers have a stringent duty of care to provide a safe place and a safe system of work, plant and equipment that is in safe working order, and adequate training and instruction to ensure that workers can carry out their duties safely.

The majority judgment of the High Court of Australia in McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60 said “accident protection is unquestionably one of the modern responsibilities of an employer”.  This remains an accurate perception of the responsibility of an employer.

As workers, we should be returning home to our families in the same way we left to go to work. It is recognised that employers have a stringent duty of care to ensure the adequate protection of their workers’ safety.

The Duty of Care

The duty of care is a duty to provide, establish, maintain and enforce a safe system of work, to provide a safe place of work, to provide plant and equipment that is in safe working order and adequate training and instruction to workers so that they can carry out the work safely.

The duty of employers is “non-delegable”.  What this means is that an employer cannot delegate to another person or company their obligation to devise, maintain and implement a safe and proper system of work.

Proving Negligence

An employer’s duty of care in common law negligence is set out in Section 305B and 305C of the Worker’s Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”).  The provisions are replicated for occupiers of premises (such as a head contractor on a work site, Dreamworld or a shopping centre) in section 9 of the Civil Liability Act 2003 (Qld).

The general principles to prove negligence are:

  1. the risk of injury is reasonably foreseeable (that is that the employer knew or ought to have known of the risk of injury),
  2. the risk is “not insignificant”,
  3. a reasonable person in the position of the employer would have taken appropriate steps to avoid the risk of injury.

In addition, the court will take into account the following factors when balancing the above elements:

  1. the burden of taking precautions (i.e. the cost and difficulty),
  2. the probability of harm occurring,
  3. the likely seriousness of harm, and
  4. the social utility (if any) of the activity giving rise to the harm.

Industrial Manslaughter Offences

Recently, there has been a focus on employers (and occupiers) in light of recent deaths in the workplace and the deaths at Dreamworld.

There are also statutory obligations contained in the Workplace Health & Safety Act 2011 (Qld) that employers and occupiers must comply with.  The Queensland Government has now, since 1 July 2018, introduced the criminal offence “industrial manslaughter” into this legislation.  This legislation was introduced in response to a number of workplace deaths in Queensland and the devastating Dreamworld accident which saw the deaths of four people on the Thunder River Rapids ride.

The penalties for being found guilty of industrial manslaughter can be up to $10,000,000 for companies, and individuals found guilty could face 20 years behind bars.

These penalties appear to be designed to be an extra incentive for employers and occupiers to heed their stringent responsibilities to ensure the safety of workers and lawful entrants onto their premises, and an incentive to avoid cost-cutting measures at the expense of people’s safety and their lives.

While we wait for the decision of the coroner from the recent coronial inquest into the deaths at Dreamworld, it is evident that substantial failures in Dreamworld’s approach to safety have occurred.

There was evidence that Dreamworld was aware that the ride had on at least two occasions malfunctioned causing the water levels to drop and the rafts to collide and flip over, and on the day of this devastating accident the ride had malfunctioned on at least two occasions requiring maintenance.

There was also a heavy focus on the training and instruction given to employees of Dreamworld as to when the ride should be shut down and in emergency situations as to when and how to hit the emergency button.

There was also evidence that a safety policy had crossed out words about an alarm sounding if the water pumps stop for the Thunder River Rapids Ride.

Negligence against Dreamworld could be established in this scenario.

Time will tell how the implementation of this offence reverberates through employers and occupiers and the implementation of safety procedures and controls on work sites and other premises.

Loss and Damage

If you can prove that through someone’s negligence, be it your employer or an occupier of premises, you have suffered an injury which has resulted in loss or damage (such as lost wages, or loss of earning capacity), you may be entitled to pursue compensation for the injury.

Time Limits

If you have been injured at work, you must file an Application for Compensation (for statutory benefits) to WorkCover Queensland.  You should report your injury to your boss as soon as your injury happens and you should lodge your Application with WorkCover Queensland within six months after the date of your injury.

WorkCover Queensland may arrange for a permanent impairment assessment and issue you a lump sum offer under the WCRA.  If your impairment is less than 20% Degree of Permanent Impairment, you must elect to sue your employer in negligence or accept that lump sum.  You should seek legal advice as a matter of urgency if WorkCover Queensland send to you a Notice of Assessment.

Until that Notice of Assessment is issued, you do not have an entitlement to pursue your employer for negligence.

There are strict time limits in which you must pursue a court action in negligence.  Pursuant to section 11 of the Limitations of Actions Act 1974 you must file court proceedings within three years of the date of your injury.  If you do not take steps to protect your time limits, you may be “statute barred” and forever prevented from pursuing compensation for those injuries.

Conclusion

Employers and occupiers need to do more in order to ensure the safety of their workers and any person that is entering the property.

The introduction of the Industrial Manslaughter offence is a step towards ensuring justice for those killed at work or entering upon workplace premises (like Dreamworld).

If you have been injured at work there are strict obligations pursuant to the WCRA and you should seek legal advice as a matter of priority.  You may have entitlements to pursue compensation against your employer or an occupier of premises or both.

Article prepared by Candice Heisler.  Candice is an Associate in Quinn & Scattini Lawyers’ Compensation Claims Team.

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