Safety & Environmental Health Law

265

Lecture 5 – Risk, Safety & Environmental Health Law

Introduction

 Readings: Tooma pgs. 121-126 & 240-312 (if available). Work safety
publications and new Public Health Law document (on Blackboard-read
lightly)

 Safety & environmental health law largely about managing risk

 Varying approaches dependent on what is sought to be achieved

 Law treats risk and its regulation under statute and common law

 Corporate approach to risk management

Terminology

 Risk = chance or likelihood of something (adverse) happening and the

magnitude of its consequences

 Likelihood is a prediction of the occurrence (or recurrence) of an

unwanted event.
 There will be different consequences associated with a particular event

 Risk assessment = goes beyond likelihood to qualitative measures :

ensures probability placed in meaningful context often using a matrix

 Risk management = framework within which risk is managed

Risk management-A Legal Framework

 Within Australia employers are obligated under Occupational health

and Safety statutes to identify, assess and control risks.

 Risk management in ensuring workplace safety is a legal principle that

warrants serious attention by courts.

 WorkCover Authority NSW v Milltech Pty Ltd [2001] NSWIRComm 51

 Mainbrace Constructions Pty Ltd v Workcover Authority NSW (2000)

 Kennedy Taylor (NSW) Pty Ltd v Workcover Authority of NSW [2000]

Risk management-A Legal Framework

 Risk – in OHS is something that threatens or limits the ability of a

workplace to be safe and free from hazards.

 Eg. injury to an employee or visitor who trips on a wet and slippery floor.

 Problems…
 Risks have the potential to damage organisations
 Risks cost money
 Risks can bankrupt an organisation.
 Why Perform Risk assessments?

 Risk management is a process of systematically addressing all possible risks,

problems or disasters before they happen and setting up procedures that will
avoid the risk, or minimise its impact.

 A process is set up which identifies the risk and sets up a strategy to control or
deal with those risks.

 Note: The conduct of the Risk Assessment is not intended to give comfort –
only the completion of the controls and maintenance of the systems – should.
Objective…

Objective of Risk Management: Identify and control risks

Three basic questions can be asked:

 1. What can go wrong?

 2. What can be done to prevent it?

 3. What will be done if it does happens?

Risk management-A Legal
Framework

 Example of basic workplace risk control hierarchy

Best Practice

Elimination – Remove it from the workplace

Substitution – Replace the hazard with something less harmful or not harmful a

Engineering – Place a barrier between the hazard and the person

Administrative – Safe work procedures

Personal Protective Equipment (PPE) – Dust masks, Fall restraint etc.

Worst Practice
Risk management-A Legal Framework

 Risk of being struck by lightening 1 in 10 million

 Risk of death by fire/exp at home 1 in 1 million

 Risk of death in a ‘safe’ industry 1 in 100,000

 Risk of death in a road traffic accident 1 in 10,000

 Risk of death in Australian Mining 1 in 3,500

 Risk management-A Legal Framework

 Within Australia, employers are obligated to ensure that employees and other
persons at the workplace are not exposed to hazards as a result of the
employers operations.

 Employers have a duty to ensure ‘as is reasonably practicable’ the health &
welfare of employees (Statutory Codification of Negligence)

 Controllers of premises have a duty to ensure ‘as is reasonably practicable’

that premise are safe and free from risk

 Suppliers of plant have a duty to ensure so far ‘as is reasonably practicable’

that plant/equipment is free of risk to health and safety
Risk management-A Legal Framework

 General duty on employer – to provide, maintain, so far as is

practicable work environment which is safe and without risk to health
of employees = offence to contravene duty (s.19(1))

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

 Edwards v National Coal Board [1949] 1 All ER 743

 Interstruct Pty Ltd v Wakelam (1990) 2 WAR 100

 Holmes v Spence (1992) 5 VIR 119

 Chugg v Pacific Dunlop (1990) 170 CLR 249

 Risk management-A Legal
Framework

There is a large amount of overlap between risk management and the

reasonable practicability requirement found in Occupational Health &
Safety regulations

Essentially, to meet the test of reasonable practicability, risk assessment

should take place whilst under the OHS regulations the process of
assessing risk requires a control of risk ‘so far as is practicable ’
Risk management-A Legal Framework

 Risk Assessment is a key requirement in the management of Australian

workplaces.

 It requires visual inspections, testing, analysis of near miss data,

technical or scientific evaluations and other important measures.

 This includes all persons at the work place including employees,

contractors, sub contractors and visitors.
What is Risk Management Process –
AS/NZ ISO 31000:2009
Risk management-A Legal Framework

 Risk Assessment is a key requirement in the management of

Australian workplaces.

 Under Australian Standard #4360: 2004-Risk Management

risk assessment is a two step process.

1. Risk Analysis-Likelihood and consequences of specified

event

2. Risk Evaluation –Comparison of risk level against

predetermined standards to establish priority level
Risk management-A Legal Framework

 Typically, employers are required to recognise any hazard considered

‘foreseeable’ in employment operations which includes:

 premises, work systems, plant and equipment, hazardous substances,

potential for violence in the workplace & the physical working
environment.

 Fatigue Management –Eg. Drivers or operators of commercial vehicles

 R v Don Watson Transport (unreported Melbourne County Court 1999)

& Inspector Campbell v Hitchcock [2004] NSWIRComm 87
Risk Management in Environmental
Health

 Health care settings, Preparedness and emergency responses:

 Public health disease prevention and control;

 Risk management & Risk communication

Legal vs Public Health Approaches to
Anticipating Risk

 Legal Approach to Anticipating Risk:

 Assume complete compliance

 Hold ‘sinners’/offenders responsible

 Public Health Approach to Anticipating Risk:

 Assume incomplete compliance

 Hold public health officials responsible

Dealing with Uncertainty

 Fundamental concept in risk management = precautionary principle

 Embraces concept of “it’s better to be safe than sorry”

 Directs decision-makers to err on the side of caution in cases where

uncertainty exists

 Traditional role of principle is in environmental protection and natural

resource management but is important in public health where action
required or standards are to be set
Dealing with Uncertainty (cont.)

 Not formally expressed in public health legislation but arguably should be

 Cannot be applied as general way of preventing a decision from being

made rather demands decision-maker applies caution under certain
circumstances

 It is a principle that directs the process but doesn’t guarantee the

outcome!!
Risk, Health & Environmental Law

 Risk = complex but central issue to decision-making

 Legislation Health Act 1911 (WA)– no definition of risk but decisions

required to taken where there is a ‘risk’ eg. Issuing improvement notices =
forming of an opinion based upon own criteria for deciding whether or not
to act. Note that there is new legislation in W.A-Public Health Act 2016
which defines ‘Public Health Risk’ as ‘risk of harm to public health’.

 Some legislation eg. Gene Technology Act 2006 (WA) requires risk
assessment
Risk, Health (cont.)

 Occupational Safety & Health Act 1984 (WA)

 Defines risk: s. 3 : risk, in relation to any injury or harm, means the

probability of that injury or harm occurring; (in workplace)

 s.26 – refusal by employee to work due to risk of imminent and serious

injury or risk of imminent and serious harm to health

 Regulations – Schedule – Subject matter for regulations – 1A:

assessment of risks
Risk, Health (cont.)

 Occupational Safety & Health Act 1984 (WA)

 Standards – safety & health: requires addressing of need and impact

in consultation process

 s.14 – Functions of Commission for Occupational Safety & Health =

whole of government approach & community consultation

 Improvement Notices
 Formulate standards
 Report to minister
 Sponsor research
 Publish information
 Advise unions
Risk, Health (cont.)

 Assessment of costs and benefits in relation to the setting of standards

dealing with risk – weighs significance of risks and value of avoiding them
against costs of compliance

 Problematic exercise – subjective and sometimes imprecise – reliance on

debatable estimates and calculations

 Long-term benefit vs short-term cost question

 Influence of lobby groups, employers, corporations etc

 Legal Obligation to Report Incidents

 Occupational Health and Safety Act 1984 - sec 20 (d):

….employees must report to employer:

(i) any situation at the workplace that the employee has reason to believe
could constitute a hazard to any person that the employee cannot correct; or

(ii) any injury or harm to health of which he or she is aware that arises in the
course of, or in connection with, his or her work.
Effective Safety, Security, Health and
Environment Risk Management
Strategy

 Tooma suggests that successful risk management strategies depend on

three elements:

 Physical Working Environment

 Systems

 People
Effective Safety, Security, Health and
Environment Risk Management
Strategy

 An expert panel investigating the 2003 Waterfall Railway Station accident

recommended closer integration of health, safety, environment, public
health issues into an organisations decision making.

 Empowerment of a workforce including management, supervisors,

employees and contractors so that everyone has a stake in the provision of
safety is also an strategic aim. E.g BP Texas Refinery Explosion , Chernobyl,
Three Mile Island etc.

 Requires leadership.
Effective Safety, Security, Health and
Environment Risk Management
Strategy

 Required leadership in safety knowledge and understanding business risks

See Ladbroke Grove Disaster 1999.

 Provision of adequate resources See BP Texas Refinery Explosion,

Environment Protection Authority v Lithgow Council 2007 & BP Deepwater
Horizon 2010

 Consideration of incidents, hazards and risks

 Design See Home Insulation Scheme

 Risk Assessment See Workcover Authority of NSW v Jabboury 2001

Risk in Common law

 Negligence action (last week)

 Nuisance

 Trespass
Nuisance and Risk

 Nuisance is a traditional environmental protection remedy.

 Fleming ‘laws contribution to the environment’

 Elements:

 Unreasonable interference with a neighbour’s quality of life

 Intentional interference

 Generally long standing in nature

 Nuisance and Risk

 Nuisance Typology:

Non-physical damage harmful to use and enjoyment of land including

noise and air pollution

Physical damage including vibrations

Water damage causing structural damage to neighbouring property

 Remedies are generally equitable rather than common law in nature. An

obvious remedy for nuisance is an injunction
Nuisance and Risk
 Private Nuisance typically revolves around interference with the use and
enjoyment of land and in effect compliments trespass.

 Examples include injury to health caused by toxins or offensive smells

released from neighbouring property

 Fear for ones health and safety Newman v Connair (1972) 33 DLR

 Public Nuisance refers to interference to a public or common right such as

obstruction of some sort.

 Examples include emission of toxins or contamination of water ways.

 Nuisance and Risk

 Nature of harm complained about important eg: actual damage vs loss of

amenity

 Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145

 Concept of risk less obvious in determination of nuisance but weighing up

reasonableness in neighbourhood content akin to assessing risk

 Exposure to noise & smells can have adverse psychological effects thus
potentially risks to health
Trespass and Risk

 Trespass refers to the intentional or negligent act of a defendant that injures

a plaintiff or their property without lawful justification.

 The Elements of Trespass:

 Fault: a negligent or intentional act

 Injury to a plaintiff or their property (note that Injury is not necessarily

actual damage but can be a breach of right-only proof of injury not
actual damage is required
 Trespass – elements:

Intentional/
negligent act
+ Direct interference
with person or property
+ Absence of lawful
justification
 Trespass and Risk

False imprisonment-the negligent or intentional act of a defendant that

directly/totally restrains the plaintiff without lawful justification

 The essential distinctive element is the total restraint which prevents a

reasonable means of escape

 Total restraint can also occur when the defendant imposes their authority over
the plaintiff with no option to leave-need not arise from actual physical
confinement and may include restraint by threat or authority so long as it
effects the plaintiff’s mind and freedom.
Trespass and Risk

Trespass to land-The intentional or negligent interference with the plaintiff’s

exclusive possession of land.

Entick v Carrington (1765) 16 St Tr 1029, 1066)

 No man can set his foot upon my ground without my license, but he is liable to
an action, though the damage be nothing.... If he admits the fact, he is bound
to show by way of justification, that some positive law has empowered or
excused him (Statutory authority does not excuse trespass.

 Entry may have been granted by law but if officer does something
unlawful/exceeds/abuses authority, then liable for trespass.
Next Week (after the break)

Environmental Health Duties-Common Law and Statutory

Remember Assignment 1 is due (very) soon