It is no surprise that some employees, employers and media commentators hold the view that many workplace health and safety measures are largely a manifestation of the so-called ‘Nanny State’, infantilising workers and undermining the concept of personal responsibility. For them, WHS is yet another battleground in the ongoing ‘culture wars’. What is very surprising, however, is when that sentiment apparently informs a court judgment considering the penalty to be imposed for a breach of WHS legislation.
In the recent Queensland District Court WHS case of Guilfoyle v Wild Breads Pty Ltd [2021] QDC 58, Judge Reid allowed an appeal from a decision of Magistrate Shearer, making a number of interesting observations about the approach the learned Magistrate adopted at first instance.
The defendant company, Wild Breads, pleaded guilty to a Category 2 breach of the Work Health and Safety Act 2011 (Qld). A Category 2 breach arises when a person has a health and safety duty, fails to comply with that duty and the failure exposes an individual to a risk of death or seriously injury or illness. (Queensland, like NSW, is a state that has adopted the national model WHS laws.)
There was an “uncontrolled interaction of pedestrians and powered mobile plant, namely forklifts at the workplace, including the packing room”, leading to a situation where a worker was struck by a forklift operated by a colleague, resulting in soft tissue injuries to the right abdomen.
As explained in paragraph 18 of the judgment,
“… the charge to which the company was pleading guilty involved its failure to put in place visual and physical barriers to ensure workers’ safety by separating pedestrians and forklifts and to implement an effective traffic plan. Whilst the negligent act of the forklift driver was the immediate cause of the risk of injury materialising, the charge against the company involved acts and omissions for which the company was directly responsible. The breach was not one for which the company was merely vicariously liable for Mr Kumar’s negligent operation of the forklift. It was a distinct and ongoing breach, by the company, over the duration of the charged period.”
The Magistrate at first instance imposed a fine of $25,000. The maximum penalty was $1.5 million. The prosecutor appealed the decision of the Magistrate seeking a fine of $90,000 be imposed.
The Views of the Magistrate
The case is notable for the comments made by the Magistrate at first instance in relation to notions of personal responsibility, and the response of Judge Reid to those statements on appeal.
At paragraph 19 of the judgment Reid DCJ stated:
“Despite this clear enunciation of the liability of the company, the Magistrate, from the commencement of the hearing, was unduly focused on his personal view that the driver of the forklift was responsible for what occurred, and the company was, in his opinion, simply unable to preclude him from operating the forklift negligently.”
His Honour then cited myriad instances from transcript during the first instance hearing where the learned Magistrate had professed this view. These included:
“There’s not much the company can do about an individual’s stupidity though, is there?”
“Why is it even necessary to have a procedure to tell people that when they’re reversing they have to look over their shoulders in the direction that they’re going… Have we become that much of a nanny state you’ve got to tell people how to exist.”’
“Yes, but doesn’t this have to be balanced against the individual’s stupidity… how can you make someone look over their shoulders when they’re reversing, apart from telling them to do it?”
“I don’t see how his [the forklift operator’s] stupidity ought to be sheeted home in its entirety to the employer and there’s no permanent injury”.
“this persistent infantilisation of our society that I have a problem with.”
“there’s got to be a point at which the employer’s liability… which is almost absolute… is just mitigated by individual stupidity… What can a company do to mitigate for individual stupidity… that’s the issue I’ve got.”
“I just wonder… to what extent when this whole incident was the result of Kumar’s stupidity… so to what extent should liability then be extended to the company?”
“Why should an employer… have to try to divine every incident of possible stupidity that their employees might descend to during a work day? There’s got to be some point which the – enough is done and it’s the employee’s fault if they injure themselves.”
“If he was looking where he was going, it wouldn’t have happened.”
“why shouldn’t the employer be able to rely upon the State’s testing and certification of this fellow as being competent to operate a forklift without having to descend to marking lines and all the rest of it you say should be done in a warehouse where forklifts are coming and going all the time. Where they’ve employed someone who’s supposedly experienced and has been licensed to operate the thing, and where it’s a reasonable inference to draw in those circumstances that the operator understands that when you are travelling in a certain direction, that’s the way you look at the same time… it’s not an obligation to prevent [accidents]. It’s just to take reasonable steps.”
“I’d say 90 per cent of the fault is Kumar’s. There may be some minor fault for the company because it didn’t have… line markings for example but that wouldn’t have prevented the accident… in some cases, it’s obvious that it’s the employer’s fault. But a matter like this, it’s not, in my view.”
“There has to be a point at which common sense has to apply in relation to the extent to which an employer has liability, culpability, sheeted home to them. It is very easy to come [up] with all sorts of schemes in hindsight as to what could or should have been done to prevent an injury, but, as I have said, an employer must – or is entitled to proceed on the basis that – on the expectation that (an) … appropriately qualified licensed employee is going to use his common sense.”
“This incident was entirely caused by the negligence and carelessness of a single employee operating in a way he was not supposed to, that the asserted changes to operating procedures that had been advanced by the prosecutor, in my view, would not have done much to change.”
The District Court Rejects the Magistrate’s Approach
In his judgment, Reid DCJ repudiated the approach adopted by the learned Magistrate, which was reflected in the aforementioned quotes cited in the decision.
At paragraph 39, his Honour stated:
“It is clear the Magistrate misunderstood, or refused to understand, the true nature of the company’s breach. In particular, his repeated references to the fact that physical barriers would not have obviated or at least minimized the risk, is almost unintelligible.”
At paragraph 43, his Honour observed that the learned Magistrate,
“…appears to have been fixated on the view that to have required the employer to have taken wholly appropriate steps was an example of what he disparagingly referred to as the ‘nanny state’ and ‘this persistent infantilisation of society’ ”.
His Honour had a very different perspective (at paragraph 44), reflecting the orthodox view on the efficacy of WHS laws:
“Examination of the public record shows in fact that such protective conduct has over many years resulted in the saving of many lives, a significant reduction in serious injury and countless hours of saved productivity through a marked reduction in industrial accidents in Australia.”
His Honour later held (at paragraph 49):
“The presence of visual and physical barriers would have gone a long way to overcoming the risk of the incident materialising. This appears to have been largely, even consciously, overlooked by the Magistrate.”
The judge, after surveying relevant authorities on sentencing, imposed a fine of $60,000, considering factors including the penalties in other similar cases, the objective seriousness of the risk, the WHS breach record of the employer, the fact the breach continued over a period of about 7 weeks and the minor injury to the worker.
Human Frailty Can’t Be Ignored
WHS measures are sometimes derided as being the product of zealots or ‘jobworths’ who take a perverse pleasure in imposing and enforcing petty rules, or the result of a society that now goes to irrational lengths to shield its citizens from any form of potential harm, no matter how minor or inconceivable. While this might make for an interesting debating topic at a dinner party or on social media, it is not the proper basis upon which to deal with the issue of WHS in the workplace.
The primary duty in WHS legislation is clear: employers must eliminate risks to health and safety, so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable.
Safe systems of work are designed to take account of human frailty; they are meant to be, to use the somewhat pejorative cliché, “foolproof”. While workers do have an obligation to take reasonable care for their own health and safety and that of others, if an employer has not discharged its obligation to identify hazards and control risks in the workplace then defence arguments based on the failure of an employee to apply common sense or act with prudence will be unlikely to find favour.
