Safety & Environmental Health

Law 265

Lecture 11 – Revision & Examination Review

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The Basics

 Do you need to remember cases?

 No-but you will receive better marks if you do-Cases support your
analysis of legal problems

 The case names are not that critical-It is more important to

remember why the case is significant. Eg. Donoghue v Stevenson is
significant for duty of care etc. If you forget the name call it “The
snail case” or “Stevenson” etc.
Exam Revision

 To pass the unit you just need 50% or more

 It doesn’t really matter how you get it! Cool hey!

 No need to pass the exam to pass the unit

 Please read the questions carefully and only answer what the question
asks

 Yes-cases are important as they support your findings. A list of relevant

examination cases will be uploaded to Blackboard shortly so keep
checking back!
Exam Revision (cont.)

 Examinable issues

 Workers Compensation (Module 7)

 Occupational Health & Safety Law Duties Under the Law –Employer
Duties and Employee Duties (Module 8)

 Personal Liability for Offences (Module 9)

 Occupational Security Law Australian Context & Critical Infrastructure

(Module 10)
Workers Compensation

 A ‘no-fault’ system
 Liability of employer’s cannot be ‘contracted out’
Compensation in instalments Eg. prescribed amount
(note lump sum payments however)
Covers “workers”

Objectives of Workers Compensation and Injury Management Act 1981

 Make provision for the:
compensation of workers who suffer an injury;
compensation of certain dependents of workers who die as a result of an
injury; and
management of workers’ injuries in a manner that is directed at
enabling injured workers to return to work.

 Make provision for specialized retraining programs for certain injured

workers, Provide dispute resolution mechanisms for parties involved in
workers’ compensation matters & promote safety. Note: Disentitlement
s. 22
 Workers Compensation

 Definition of worker under s.5

 ‘any person to whose service any industrial award or industrial
agreement applies; and any person engaged by another person to work
for the purpose of the other person’s trade or business under a contract
with him for service, the remuneration by whatever means of the person
so working being in substance for his personal manual labour or
services…Marshall v Whittaker’s Building Supply Co, La Macchia v Spera

 For entitlement to be established, the following is required to be met:

 1. Personal injury by accident (note also ‘disease’) Fenton v Thorley & Co

Ltd, Kavanagh v The Commonwealth
 2. Arising out of or in the course of employment Zickar v MGH Plastic
Industries Pty Ltd, Davidson & Anor v Mould
 3. Whilst acting under the employer’s instructions. Note social events,
journeys etc
 Exception: Worker’s injury is proven to be a result of an act of serious &
 Occupational Safety & Health Duties Under
the Law

 Safety & Environmental Health Law

 Employment Relationship-Tests Control, organisation and multi factor

 Duties of employers

 Duty to take reasonable care , safe plant, equipment, system

 Non-delegable duty Kondis v State Transport Authority

 Relationship with the Common Law

 Not absolute only ‘Reasonable practicality’

 Occupational Safety & Health Duties
Under the Law

 Occupational Safety & Health Act 1984 (WA) s.19(1)

 Duty is not absolute – only ‘so far as practicable’

 Kirk v Industrial Relations Commission of NSW
 Interstruct Pty Ltd v Wakelam
 Chugg v Pacific Dunlop Ltd ‘Onus of proof of practicability ‘
 Described as statutory codification of ‘calculus of negligence’ – weighting
of risk both in terms of its likelihood and consequences against the cost,
time & trouble associated with measures required to control the risk (note
high risk environments)
 Edwards v National Coal Board
 Holmes v Spence
 Bourk v Powerserve Pty Ltd
 Comcare Transpacific Industries
 Occupational Safety & Health
Duties under the law
Duty of employees to take reasonable care (as employee)
Occupational Safety & Health Act 1984 (WA) s.20

 No single standard of care-job dependant

 Scope of Duties
 Prosecutions rare-usually negligence, bullying, practical jokes etc
 Employee may refuse to work s.26(1) –where he or she has
reasonable grounds

Appropriate test = objective test = reasonable person in the same

circumstances of the employee Inspector Thomas v Cruden

Workplace injuries that are caused by the negligence of employees with

either managerial or supervisory responsibilities seem to be on the
increase Ashbury v Dodson, R v Tormey etc.
 Occupational Safety & Health Duties
under the Law

 Employee Duties

 Duty to cooperate
 Duty to notify
 Duty to use protective clothing/equipment

 Duty to take reasonable care for their own safety & health of others at the
workplace

 s.20 Occupational Safety & Health Act 1984 (WA)

› Failing to comply with instructions
› Failure to use protective clothing or equipment provided
› Misuse of damage of equipment provided in interests or safety &
health
› Failure to report a hazard or an injury or harm that has arisen
› Requires employee’s co-operation with employer

 Industrial manslaughter (reckless, serious injury). In all Australian

jurisdictions, workplace death may constitute homicide.
Occupational Safety & Health Duties
under the Law

Employee Duties

Prosecutions of employees for breaches of OHS duties rare – generally

only in cases of extreme negligence such as bullying & workplace
practical jokes

Inspector Maddaford v Coleman

Standard imposed is to take reasonable care in individual capacity as

employees – not in broader capacity as would be the case with
managers/officers
VWA v Chambers
VWA v De Sensi
• Personal Liability for Offences

 Personal liability for Occupational Health & Safety Offences

 Community expectations

 Limitations of personal duty Symbolic drivers (moral compulsion) &

Instrumental drivers (retribution and punishment)

 Deeming offences

 Ignorance of hazard is no defence although s.118(1)(a) does provide

defence that they did not know or could not reasonably be expected
to have known that the offence was being committed

 Inspector Kumar v Ritchie

 Inspector James v Paul (No 2)

Personal Liability for Offences

Test of ‘due diligence’

Due diligence in this context basically means that all reasonable care is
taken to ensure that harm to employees does not result at a place of work

Accessorial offences (Consent, Connivance & Neglect)

 Department of Environmental Protection v Donnes,

 Go Crete Pty Ltd v Innes
 AB Oxford Cold Storage Co Pty Ltd and Anor v Arnott
 Huckerby v Elliot
 Personal Liability for Offences

Director liability

Personal Liability and Management Systems-Directors and other senior

management to take proactive steps to:

 Effectively manage Safety, security, health & environment risks

 Gretley Mine Disaster ,Inspector Jason Andrew Wall (WorkCover
Authority of New South Wales) v Lubo Medich Holdings Pty Ltd

Fry v Keating, WorkCover Authority of NSW (Inspector Mansell) v Daly

Smith, Worksafe Victoria v Martin John Smith ,WorkCover Authority of
NSW v Hitchcock, Department of Environmental Protection (WA) v
Donald George McMurtry
monitor performance to ensure legal compliance -Growing trend for
shareholders to sue senior management for failing in this area?
 Eg. BP Gulf of Mexico disaster
 Occupational Security Law

 Overlap of Safety Duties with Security Obligations

 Occupational Security Law is a legal framework concerned with domestic security risks
generated by business activities and is related to other laws including occupational health &
safety, criminal, migration and anti terrorism

 Anti Terrorism legislation in Australia various Eg. Anti-terrorism Act 2004 (Cth)
 Anti-terrorism Act (No 2) 2004 (Cth)
 Anti-terrorism Act (No 3) 2004 (Cth)
 Anti-terrorism Act (No 2) 2005 (Cth)
 Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002 (Cth)

 Control orders

 Bankstown Cell, Thomas v Mowbray, R v Thomas, R v Lodhi, R v Mallah, R v Roche,

Vinayagamoorthy v DPP, R v Khazal
Occupational Security Law

 Terror threats

 Aimed at minimising national vulnerability and improvement of

domestic resilience to the threat of terrorism.

 Principally requires the private sector to manage terrorism risk

generated by their business operations and limiting access to inputs
required in terrorist activities Eg. ‘Overlap of safety duties’ e.g Role of
designers, building owners

 De Menezes Case, 911, Mumbai, Oklahoma City etc.

 Occupational Security Law

 Critical Infrastructure-definition

 Critical infrastructure understandably represents an attractive target for

acts of terrorism given the potential for mass casualties and wholesale
disruption in populated areas

 Definition:
 ‘Physical facilities, supply chains, communication networks and
information technologies which, if destroyed or damaged would
significantly impact on Australia’s capability in defence, national security
and social or economic wellbeing’

 Examples: National icons, Government services, communication,

transport, power, water supply etc

 Critical Infrastructure Resilience Strategy (Cth) 2010

Occupational Security Law

 Rail –’Popular target’ Madrid 2004, London 2005

 Marine

 Aviation- Lockerbie, 911

 Dangerous goods Eg .Ammonium Nitrate-Regulated since 04- Oklahoma City

 Security sensitive Chemicals Eg. Anthrax, cyanide etc
 Tokyo Subway Sarin Attack

 Security Risk management Eg. Threat = intent and capability

 Exam Format

 CLOSED BOOK

 One compulsory question (Question 1) and then choose 2 of the

3 remaining questions. Answer 3 questions only.

 Question 1 is 4 step problem question.

 There are 2 remaining questions to be answered which are all

theory discussion/short answer type

 The tutorial theory questions are similar to this type of exam

questions…
• Exam Format

 Question 1 is a 4 step process type more involved task

focussing on a problem scenario and is worth 20 marks

 Questions 2, 3, 4 are theory based, not as lengthy and are

each worth 10 marks 2 x 10 marks= 20
marks

 Total 40
marks
 Examples

 Carl was operating a hydraulic vehicle hoist at his place of work, a

service centre on a busy road in Perth’s western suburbs. As he was
lowering the vehicle he was servicing after completing the work he
noticed that the hoist had missed the second last safety latch but
did stop on the final safety latch. He did not think too much about
this and soon left for home at the end of the day. The following
morning a 3rd year apprentice mechanic was tragically killed when
crushed under a vehicle he was servicing. Preliminary investigations
reveal that a gear tooth had stripped which led to catastrophic
failure of the vehicle hoist.

Using the 4 step process discuss potential liability in the above

scenario with reference to the employee duties under s. 20 of the
Occupational Health and Safety Act 1984 ( W.A)

20 Marks
Examples (Con’t)

 Section 22 of the Workers Compensation and Injury Management Act

1981 (WA) provides for disentitlement  of compensation due to serious
or wilful misconduct.

 Using examples explain what this means and why it results in

disentitlement. In particular discuss the notion of self inflicted injury.
Be sure to include relevant case authorities in your response.

 10 marks

 
 Examples (Con’t)

 Occupational Security Law is a collection of laws and regulations that

manage the risk to national security generated by legitimate business
undertakings. Within this risk management regime, risk to critical
infrastructure remains an important issue. In response to this risk, the
Commonwealth Government has developed a Critical Infrastructure
Resilience Strategy in order to provide support for national security, the
economy and essential services.

 Discuss the protection of critical infrastructure within the Australian

context using examples. What makes the infrastructure such an
attractive target for terrorist attacks? .

 10 marks

 
Next week

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