Andrew Douglas: Let’s go on to our main topic, which is failing to provide training for high-risk activities. And this is SafeWork New South Wales, and Garbin is the case we’re going to talk about, along with some other cases. But can I just, I think we forget at times that there is this connection that sits between the common law and safety law. So when safety law was developed in 1970 in England, what it was seen is codifying the current common law that existed around employment at that time. So common law cases are really important, okay? Yes, our safety law has moved on, and the tests are slightly different.

But Kozarov came out only a year or two ago, and Kozarov said in the High Court, if you are placing a person in a position of high risk, and in that case it was vicarious trauma, okay? But if you’re placing a person in high risk, then there is a duty to ensure that you’ve identified what the risk is and build appropriate systems to prevent it. So whenever you place a person at high risk, your obligation is to be absolutely satisfied you have a system that you maintain and supervise in a working process to avoid it. And what this was dealing with, this case was a place where people would go and, for fun, go and do climbing, and they had an automatic eblay, which means that rather than have somebody lowering and raising a rope, it was automatic to protect you, which hadn’t been maintained. What actually hadn’t happened, it hadn’t been maintained and hadn’t been serviced.

Tom Daly: Yeah, the system itself was overdue for a service, and they hadn’t implemented adequate procedures to monitor the condition of the equipment that supposedly…

Andrew Douglas: And it was cluttered and there was all sorts

Tom Daly: Yeah.

Andrew Douglas: of things.

Tom Daly: It was full of debris.

Andrew Douglas: Yeah. And it failed.

Tom Daly: It failed and someone died.

Andrew Douglas: Yeah.

Tom Daly: Yeah.

Andrew Douglas: So why do we raise this case? Well, there are so many high-risk occupations that people can do. We’re just doing a council briefing, by-laws inspectors or parking inspector-type people, they’re exposed to high risk all the time.

Tom Daly: I think that’s very obvious.

Andrew Douglas: Yeah.

Tom Daly: Like that, if you’re going to rely on an automated system-

Andrew Douglas: It better work.

Tom Daly: you make sure it’s-

Andrew Douglas: Yeah, yeah.

Tom Daly: you know, you maintain it.

Andrew Douglas: But if you’ve got a forklift and it’s going in a warehouse, you’ve got to have an exclusion zone. It’s pretty obvious. But what Kozarov said is, “Yes, it is obvious, but you must be satisfied, it’s safe.” And safety law feels exactly the same, okay? And reckless endangerment almost jumps out of this case. You almost wonder why we didn’t go to the extra step of placing someone at the risk of jail, ’cause we ended up with $280,000 fine for the corporation and around about 85 for the individual director who was involved. But he very, very lucky. Very lucky because they know what’s required.

They know what they must do, and they failed to make sure that it happened. That’s reckless endangerment any day of the week. So I think this director and this company really got out of jail in a real sense. But for us, Tom, I think the learning from this case and from looking at the common law and Kozarov and other cases, say, “Okay, go through my business.” “What are the high risk activities in that business?” “Okay, I’ve got four of them.” “Okay, in respect to those four, no matter what happens every day, they’re going to be safe.”

Tom Daly: And with this one, I think that’s pretty clear.

Andrew Douglas: It’s absolutely clear.

Tom Daly: Climbing facility.

Andrew Douglas: Well, that’s why we chose it, isn’t it?

Tom Daly: Yeah. Yeah, yeah.

Andrew Douglas: Such a good example.

Tom Daly: It might be harder in every other business, but…

Andrew Douglas: Yeah. Why don’t we try a case study. Are you ready for that?

Tom Daly: Let’s do it.

Andrew Douglas: Well, it’d happy if I actually pressed it, so we’re just going to have that, Tom. Okay.

Tom Daly: So Devon was a by-laws inspector at Chelsea Council. He had set key performance indicators for how many fines he could issue to cars parked illegally or beyond the permitted time. Not cool.

Andrew Douglas: Yeah.

Tom Daly: Devon had served in the police force for 18 years and retired at the age of 42. Six months later, he commenced work at Chelsea as a by-laws inspector. The majority of his work in the police had been in traffic enforcement. He had witnessed all manner of horrific incidents, including those resulting in the death or serious injury of children. He now struggled to sleep, often felt sudden urges of anger, and suffered from terrible nightmares. When he started his new job, he was given a rudimentary pre-employment medical. Part of the job description required a healthy resilience to violence and aggression. When asked by the doctor about mental illness, he never answered honestly.

Andrew Douglas: So he didn’t answer.

Tom Daly: Sorry, he answered honestly. He had never been diagnosed with a psychological illness or injury and was used to dealing with difficult people. The doctor said he passed with flying colours. Devon had never sought or received treatment for his issues, believing that everyone in his line of work experienced the same things. His boss, Jane, noticed how easygoing he was at first. He told her the work was a “cakewalk” compared to what he used to do. He received training in de-escalation techniques and in how to mentally respond to hostile individuals. There was also a peer support network, a psychological support team, and software that tracked incidents.

But like many others, he didn’t report when something went wrong. He thought it would be a sign of weakness. Instead, he shared stories with fellow by-laws inspectors, often told apocryphal tales about difficult encounters with the public. They joked and tried to laugh it off. The others thought he was callous, a sentiment they shared with their superiors. Jane also noticed that he had started to withdraw from the group. He was quieter and no longer engaged the way he used to. She picked up on subtle changes in his demeanour and grooming. There followed a number of incidents with members of the public, which eventually made their way back to Jane.

When challenged, he no longer tried to de-escalate. On the contrary, he confronted offenders head-on. A photo of him appeared on the front page of the “Herald Sun, aggressively poking his finger into a small man’s chest and clearly swearing at him. He looked overwhelmed with rage. Jane called him in. She had to address the issue, councillors were calling for his dismissal. But Devon didn’t show up to the disciplinary meeting. He was later found unconscious in his home, having consumed drugs and alcohol. He could not be revived and died at the scene.

Andrew Douglas: So questions? Okay, grim, isn’t it? So the question was, was there anything wrong-

Tom Daly: Grim, yeah.

Andrew Douglas: with the pre-employment medical and what should have occurred instead? So the answer is there was a lot wrong with the pre-medical.

Tom Daly: Which was a general rudimentary pre-employment.

Andrew Douglas: Yeah, and the answer is, again, in high-risk jobs, the job description must accurately describe the nature of the hazards they’ll be exposed to, they should have been tested by the doctor who was examining him, and any rudimentary tests would’ve found asking questions about sleep. Those types of things would’ve picked up immediately the PTSD this guy clearly suffered from and probably a whole range of other issues. Wasn’t done, and therefore he came to work not fit for the job he was doing and placed at risk in doing it. So at that stage, the council’s already on liability for safety, okay?

Tom Daly: Yep.

Andrew Douglas: So what should have happened is an appropriate assessment based on the nature of the jobs, and probably in these circumstances, appropriate psychometric testing, trying to pull out the person’s level of resilience to understand what are the adjustments that may need to be made for a person to work. But this man, Devon, would never be fit to do this job, okay? If they had have done the appropriate one and they’ve-

Tom Daly: They would’ve known that.

Andrew Douglas: Yeah, they would’ve known it. And they could have, and he did something that was consistent that they would’ve been able to dismiss him without any unfair dismissal, okay? ‘Cause it’s a fundamental breach to the contract if he had have deliberately hidden something. But he didn’t deliberately hide because he’s never asked the right questions, okay?

Tom Daly: He just answered the first three questions.

Andrew Douglas: Okay. Was he fit to the inherent requirements? No, he most definitely-

Tom Daly: No.

Andrew Douglas: wasn’t fit for it.

Tom Daly: Definitely not.

Andrew Douglas: And that’s pretty obvious. I didn’t mean to jump ahead like that, Tom.

Tom Daly: No, it’s all right.

Andrew Douglas: Was it a breach of duty to fail to disclose the obvious symptoms he was experiencing? The answer, this is not an easy question. So in all jurisdictions, an employee, and that includes a candidate, must exercise reasonable care to prevent injury to themself and others. Now he knew that he was suffering from a number of symptoms, but he didn’t think it was abnormal. He thought that everybody was doing it, so there’s no liability on him, okay?

Tom Daly: He wasn’t dishonest.

Andrew Douglas: No. But if he did know he had a disability, he failed to disclose it, then he is in breach of his safety duty, and there’s a strong argument he can terminate for failing to do it. All right, did Chelsea Council or Jane breach any duties under the common law or safety legislation? If so, what were those breaches? So this is not as easy, is it?

Tom Daly: Well, it’s somewhat, it’s subtle because he started off going quite well, but she did notice over time that he became a little bit more withdrawn. So there were some-

Andrew Douglas: So there’s a question-

Tom Daly: signs.

Andrew Douglas: and the question comes from a case called Burke and Suncorp, was the nature of what she observed a reasonable person would understand to be some sort of psychological problem that needs intervention?

Tom Daly: It’s hard to say, isn’t it?

Andrew Douglas: It’s hard to say on this case, but if the facts were clear and they said yes, it was obvious, then unquestionably there’s liability that sits for Jane and for the council. I don’t think there’s any liability here, Tom. I don’t think there’s enough evidence to get them there, but it’s very, very close. All right, so what is the, the next question is, sorry, I’m looking at my autocue. While employed by Chelsea Council, would he have had a workers’ compensation claim from the psychological stress of what he’s doing? And the answer is yes, because he was employed, even though he wasn’t fit, and the impact that had upon him caused him to exhibit signs and symptoms which caused him harm. It’s compensable.

Tom Daly: And even though he came to the job with pre-existing condition, it was aggravated.

Andrew Douglas:  Yeah. So…

Tom Daly: But you’re saying the mere fact of his employment was damaging because he had those-

Andrew Douglas: That’s right.

Tom Daly: even if it wasn’t aggravated by the job?

Andrew Douglas: Well, no, the issue is there were no adjustments that could be made for this man to do his work. He was never fit for the work. So the fact that he started to experience symptoms of anger, anxiety, rage, all those sort of things, they were damaging him. Damaging to other people too, but damaging him. Yeah, he’s got a compensable claim.

Tom Daly: And they exposed him to that because they didn’t take the steps to inform him.

Andrew Douglas: Yeah, so it just shows you, had you done the right pre-medical, had you done the assessment, he would never have been employed, okay?

Tom Daly: Yeah.

Andrew Douglas: Because he was never fit for the inherent requirements. If he failed disclosed critical matters and he was required to sign a statutory declaration, he had a knowledge of his symptoms, under a case called Toll and Ellis, you can terminate his employment for failing to disclose when you find out it’s true. Everything happens at the beginning; you get that right, everything’s okay. But here, nothing was done properly and you’re left with these moot questions, “What is the problem?” And a person is likely to litigate against you. Well, there you go, interesting set of questions, fun. Good to do it with you, Tom. And I know you are tired and under the gun like I am, so we’re trying hard to stay awake here, but give us the thumbs up. Thanks for coming along. Cheers.

Tom Daly: Thanks.