2. Workplace death offences in OHS law and general criminal law
Updates and background for this project (Digest)
2.1 Prior to the 2005 amendments, deaths that occurred in the workplace could be prosecuted either under the Occupational Health and Safety Act 2000 (NSW) or under the criminal law of manslaughter. This remains true after the 2005 amendments, which simply provide an additional basis on which a person with occupational health and safety (“OHS”) duties can, by reckless conduct causing death at a workplace, contravene those duties.
2.2 Finding an individual responsible for a workplace death is distinct from finding an entity, such as a corporation, responsible for a workplace death. Individuals may be found guilty of manslaughter or to have breached an occupational health and safety duty according to the common law tests for manslaughter and according to the statutory provisions respectively. Corporate liability for a workplace death, particularly under the general criminal law, is more difficult to establish.
OCCUPATIONAL HEALTH AND SAFETY OFFENCES
2.3 Part 2 of the Occupational Health and Safety Act 2000 (NSW) imposes duties relating to health, safety and welfare at work, including an absolute duty upon employers to eliminate or reduce workplace risks, including inherent risks, and those risks caused by external, uncontrollable, or unpredictable factors. Part 2 Division 1 expands on these “general duties” as they apply to employers and others. A breach of these general duties is an absolute liability offence, that is, one in which proof of the objective ingredients of the offence establishes guilt and the defendant is unable to invoke a defence of honest and reasonable mistake,1 although the defendant may rely on a defence specified in the legislation.2
2.4 Either a corporation or an individual can be prosecuted under the provisions mentioned in the last paragraph. Because the duties are absolute, there is no need to find the individual or corporation possessed a particular mental state. Moreover, in the particular instance where a corporation contravenes the provisions of the Act, s 26 provides that individual directors or managers are also deemed to have contravened the provision unless they are able to prove they were not in a position to influence the corporation’s contravening conduct, or if they were in a relevant influential position, used all due diligence to prevent the corporation’s contravention.
2.5 The offences are such that their objective gravity depends upon risk rather than actual consequences. The Act is both remedial and preventative. Offences occur where the duty to prevent “risk” is breached. Thus, where death or injury eventuates, there is no requirement to establish causation between the injury and the act but rather the risk and the act.3 Causation is established, in a common sense way, between a person’s failure to take care and the relevant workplace risk.4
MANSLAUGHTER
2.6 A person who has caused death at a workplace may incur liability under the criminal law, in particular, the general law relating to manslaughter.
2.7 Manslaughter is defined in the Crimes Act 1900 (NSW) to mean every punishable homicide other than murder.5 Voluntary manslaughter occurs when the requisite mental state for murder is present but a partial defence such as provocation operates to downgrade the charge of murder to manslaughter. Involuntary manslaughter occurs when the requisite mental element to commit murder is not present.
2.8 There are two types of involuntary manslaughter at common law. The first is manslaughter by an unlawful and dangerous act carrying with it an appreciable serious risk of injury.6 The second is manslaughter by criminal negligence where the act or omission of the accused involves such falling short of the standard of care which a reasonable person would have exercised and where there was such a high risk of death or serious bodily injury that criminal punishment is merited.7
2.9 It has been suggested that manslaughter by criminal negligence is the most appropriate category for dealing with workplace deaths.8 Its utility is, however, limited where liability is sought to be imposed on persons whose conduct does not substantially contribute to the death in question,9 as may be the case where, for example, directors have omitted to correct workplace practices that are dangerous and breach OHS laws. The imposition of secondary liability on such persons would require their intentional assistance in, or encouragement of, the conduct that goes to make up the offence.10 In such cases, it is only if liability can be imposed on the corporation in question that manslaughter is an effective vehicle for the imposition of criminal liability.11
2.10 The penalty for manslaughter is 25 years imprisonment.12
The liability of corporations
2.11 A corporation is an entity that can only function through the actions of the individuals within the corporation. In order to find a corporation liable for a workplace death under the general law of manslaughter, the mental state and actions of natural persons within the corporation must be attributed to the corporate defendant. The most prominent methods of attribution in common law jurisdictions such as Canada, the United Kingdom and Australia are the identification doctrine, the aggregation approach, and the corporate fault model.
The identification doctrine
2.12 The identification doctrine, or “controlling mind” approach, is the basis of corporate liability in New South Wales.13 This approach was developed in the English case of Tesco Supermarkets Ltd v Nattrass.14 In order to find a corporation liable for a workplace death, the offending conduct (including negligence) must be attributable to a person in authority who is the “controlling mind”, “directing the mind and will”, of the corporation.
2.13 Safety decisions are not usually made by those in positions of authority high enough to be categorised as “controlling” the corporation. The Legislative Council Inquiry into Serious Injury and Death in the Workplace heard evidence to this effect:
Safety-related decisions are, by definition, made at the workplace level. They are not generally made in board rooms. The board might implement a general safety policy, and might reach particular views about appropriate levels of training, supervision and so on, but the day to day decisions which result in either safe workplaces or unsafe workplaces generally are made at lower, hands on levels, often not even at the plant level but … by shop floor supervisors, foremen and so on. That is the level at which decisions are made.15
2.14 In any event, the doctrine oversimplifies the diverse structures of contemporary corporations, which do not have a clear hierarchical chain of command. Larger corporations, unlike medium-sized firms, possess fewer “controlling minds”; directors and higher-level managers are a smaller proportion of the total staff and more removed from daily operations. The identification doctrine is harder to apply to larger corporations.16
Aggregation approach
2.15 It is possible that the conduct of several employees together constitutes gross negligence, even though their individual actions and mental state would be insufficient to make out an offence. The aggregation approach views the cumulative actions of these individuals as establishing corporate liability. This approach has been rejected by English and Australian jurisdictions in both criminal and civil cases.17
Corporate fault model
2.16 The corporate fault model, adopted as a basis of liability in the Criminal Code (Cth), assumes that a corporation is a discrete entity capable of being liable for a workplace death through its organisational culture and practices.18 The corporation’s liability for any workplace death is not derivative of any individual person’s liability. As evidence to the Legislative Council Inquiry into Serious Injury and Death in the Workplace suggested:
Corporations have policies, rules of behaviour, and ways of doing their activities that are sometimes written and sometimes unwritten and to make any sense of the enquiry “was the corporation grossly negligent” the inquiry needs to go beyond just looking at a particular individual and needs to examine a broader range of practices, policies and procedures within the corporation itself, to see whether they were grossly negligent.”19
The use of the criminal law
2.17 The case law on the prosecution of companies for manslaughter arising from workplace fatalities in Australia is sparse. In Victoria, a company has been found guilty of manslaughter by criminal negligence, and fined $120,000, for inadequately maintaining facilities and failing to train employees.20 The company in question was a small one with only two shareholders, so the search for a directing mind and will under the identification doctrine was not a prominent issue.21 The defendant company had also pleaded guilty to the charge of manslaughter by criminal negligence.22
2.18 In NSW in 2008, the operator of a small business and one of his employees pleaded guilty to, and were convicted of, manslaughter by criminal negligence following the death of a person who assisted in the running of the business.23 The defendants had a close relationship with the victim or her family. The offences were at the lowest end of the scale for penalties for manslaughter: the owner of the business was sentenced to two years imprisonment, suspended on terms; while the charge against the employee was dismissed without recording a conviction. The offences occurred before s 32A of the Occupational Health and Safety Act 2000 (NSW) was enacted. In sentencing the employee, Judge English remarked that, had the offences arisen after the enactment of s 32A, the offender would have been charged under that section, which attracted lesser penalties than that applicable to manslaughter.24 In our view, there is nothing in the legislation or in the general law to support the view that workplace death offences must be tried under s 32A rather than under the Crimes Act.
FOOTNOTES
1. The Industrial Court has accepted this for many years in respect of offences under the present legislation and its predecessors: see Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123, [149]-[291] (Boland J, President).
2. Occupational Health and Safety Act 2000 (NSW) s 28. And see para 2.4.
3. Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149. See also R McCallum, P Hall, A Hatcher and A Searle, Advice in Relation to Workplace Death, Occupational Health and Safety Legislation & Other Matters: Report to WorkCover Authority of NSW (2004) [25], citing WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248, 257; WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (2000) 95 IR 383, 439-440; WorkCover Authority of NSW (Inspector Amanda Templeton) v Pirelli Cables Australia Limited [2002] NSWIRComm 371 [6]-[9].
4. Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 432.
5. Crimes Act 1900 (NSW) s 18(1)(b).
6. Wilson v The Queen (1992) 174 CLR 313.
7. Nydam v The Queen [1977] VR 430 and R v Lavender (2005) 222 CLR 67.
8. Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace (2004), [12.8] (evidence of Nicholas Cowdery QC, Director of Public Prosecutions).
9. This is the test of causation in this context: see Royall v The Queen (1991) 172 CLR 378. See also para 4.26.
10 Giorgianni v The Queen (1985) 156 CLR 473, especially 505 (Wilson, Deane and Dawson JJ).
11. See para 2.11-2.16.
12. Crimes Act 1900 (NSW) s 24.
13. Hamilton v Whitehead (1988) 166 CLR 121, 127 (affirming Tesco Supermarkets Ltd v Nattrass [1972] AC 153).
14. Tesco Supermarkets Ltd v Nattrass [1972] AC 153.
15. Parliament of New South Wales, General Purpose Standing Committee No. 1, Serious Injury and Death in the Workplace (2004), [12.21] (evidence of Peter Rozen).
16. NSW Law Reform Commission, Sentencing: Corporate Offenders, Report 102 (2003) [2.9]-[2.11].
17. NSWLRC, Report 102, [2.18]. See also R v A C Hatrick Chemicals Pty Ltd (Unreported, Supreme Court of Victoria, Hampel J, 29 November 1995); R v Australasian Films Ltd (1921) 29 CLR 195.
18. Criminal Code (Cth) s 12.3(2)(c),(d).
19. Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace, [12.23] (evidence of Peter Rozen). For an extended discussion of organisational failures behind a particular major accident, see A Hopkins, Lessons from Longford: The Esso Gas Plant Explosion (CCH Australia Ltd, 2000).
20. R v Denbo Pty Ltd (Unreported, Supreme Court of Victoria, Teague J, 14 June 1994).
21. D Brown, D Farrier, S Egger, L McNamara and A Steel, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (4th ed, 2006) 495.
22. See S Chesterman, “The Corporate Veil, Crime and Punishment: The Queen v Denbo Pty Ltd and Timothy Ian Nadenbousch” (1994) 19 Melbourne University Law Review 1064.
23. R v Smith (Unreported, District Court of New South Wales, Criminal Jurisdiction, Newcastle, Judge English, 2008/5549, 6 November 2008); R v Thurkell (Unreported, District Court of New South Wales, Criminal Jurisdiction, Newcastle, Judge English, 2008/5550, 6 November 2008).
24. R v Thurkell, (Unreported, District Court of New South Wales, Criminal Jurisdiction, Newcastle, Judge English, 2008/5550, 6 November 2008) 6-7.
