Prosecuting for workplace death and injury

Although this duty of care appears, from the company s point of view, to be frighteningly absolute, it is modified by the defences available under section 53. This section states that an employer is not guilty of an offence if it was not reasonably practicable to comply. Thus, for a company to be found guilty, the court must be satisfied that it was reasonably practicable for the company to have ensured a worker s safety and that, despite this, it failed to do so. Similar provisions apply in other jurisdictions. One can begin to see, then, that for a prosecution to succeed some degree of company culpability is involved. Let us spell this out a little further. 

The phrase reasonably practicable , as used in the legislation, can be taken as meaning approximately what it means in common law proceedings for damages. At common law a precaution is reasonably practicable and ought to have been taken if, first, the 

A second example a man was injured when he fell onto an unguarded section of transmission machinery. The court was told that the safety guard for the machinery had been left off because it did not fit properly and adjustments to the machinery could not be made while it was in place. The guard had not been in place for four months prior to the accident. Here again the injury was both reasonably foreseeable and preventable the company in other words was guilty of serious negligence. It was fined 25 000 (NSW, WorkCover News no. 13, p. 21). 

A final example an injury occurred because a company had directed its employees to continue working despite the fact that an inspector had found the work so dangerous that he had issued a 

These statements leave little doubt that in the minds of magistrates the injuries befalling workers are not simply unfortunate accidents but are the result of tmly culpable behaviour on the part of the defendant companies. They are not mere technical violations but serious offences, sufficiently blameworthy to warrant condemnation and punishment by the State. 

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