7 July 2017

“Don’t forget the public” – breadth of non-worker WHS duty

Ben Urry, Associate Director

When reviewing health and safety practices, businesses need to adopt a long-term view of the potential impact on non-workers. A business should not assume that their obligation to protect customers, visitors or members of the public is limited only to the particular point in time when the work was actually being undertaken.

Risks to health and safety may not manifest for days, weeks or even months after the work is performed, and if the work has the requisite causal connection to the creation of the risk, then a business may be exposed to criminally liability.

In a recent decision handed down by the Industrial Relations Court of South Australia, it was held that work, health and safety (“WHS”) provisions in the Work Health and Safety Act 2012 (SA) in relation to a “non-worker” (including the public at large) were not limited to risks in the workplace at the time the work was being undertaken.

In September 2014 a young girl was killed at the Royal Adelaide Show when she was thrown from an amusement ride. The ride had been certified as safe to use (by Safe is Safe Pty Ltd) 12 days prior to the accident.

Safe is Safe and its officer, Mr Hamish Munro (the “Defendants”), were subsequently charged under the Work Health and Safety Act 2012 (SA). The Defendants argued that the obligation to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk only existed while the work was being carried out (ie the period in which the inspection and issuing of the certificate occurred) and did not extend to the consequences or product of the work.

In rejecting these arguments, the Court held that it was the creation of the risk that constituted the offence, with the “risk” in this context simply meaning the possibility of the health and safety of the nominated class of persons being compromised.

The case is a timely reminder to businesses that the mere passage of time since the work was undertaken does not lessen the possibility of liability for any risks created.

Posted in Legal Advice & Consulting and tagged , .
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