Andrew Douglas: Major topic mate. This is Kalidonis. The case talks about, do you know much of the facts in this or I’m putting you on the spot?

Tom Daly: Oh, no, no we talked about this before.

Andrew Douglas: Okay, yes, so Kalidonis is a case that talks about the risks of ignoring individual who are high risk. Now remember we talked about Supergas, which is a high risk product. Okay.

Tom Daly: Yeah.

Andrew Douglas: And you will recall earlier I said, well, the biggest risk, so in Supergas, the biggest risk is someone who’s unskilled handling a high risk thing and not telling ’em it’s dangerous. It’s like me giving you a grenade and not saying what’s out for the pin okay? So Kalidonis, tell us about it.

Tom Daly: So in this case, a subcontractor was attempting to tow an excavator with another one.

Andrew Douglas: Out of sand.

Tom Daly:  Yeah and…

Andrew Douglas: That had been submerged in seawater.

Tom Daly: Yeah, so he’s pulling on it and it’s the, the chain has snapped in.

Andrew Douglas: He’s gone to a neighbour, got the chain. So no idea about the the waiting. No idea about what was the physical force that was required. And clearly the physical force was greater than the chain strength. And the chain broke and whipped back, hit him, and killed him.

Tom Daly: Yeah, terrible.

Andrew Douglas: But he’d done the same thing two days before.

Tom Daly: Yeah.

Andrew Douglas: Okay. And so the employer said, “Well, we told him not to do it.”

Tom Daly: And that’s it. They just said.

Andrew Douglas: Yeah and they said, “See, we did the right thing.” But remember when you look at the hierarchy of control, administered control, I give you a direction. I give you a direction, I can’t give, it can’t be direct.

Tom Daly: You can’t rely on that.

Andrew Douglas: No, no. I’ve got to actually intervene in a way that says, what am I going to do about that? And part of it is I’ve got to work out what are the physical forces required if something gets stuck there and what is the appropriate procedure and what is the expectation will be done. I must train, make, comment, be satisfied. There’s a whole lot of work I’ve got to do. Like developer swims do those type of things, which wasn’t done.

So it’s a really good case ’cause it triggers the question of whether I’m talking about psychological hazards, whether I’m talking about environmental hazards, whether I’m talking about physical hazards. A tripping hazard for me is a much bigger risk to you. Why? Because I’ve got an eye disorder, which means I don’t see from the bottom part of my eye. So if you leave a tripping hazard in the room, I’m going to fall over it. I fall upstairs. And that’s not like you last night. Okay. That’s sober all right.

Tom Daly: I have to leave if you were around now think that.

Andrew Douglas: Just saying so, it’s all right. Just remember it’s review time.

Tom Daly: You’ve been on the floor now.

Andrew Douglas: But that shows that I as an individual have a different propensity or a different risk level that attaches to a particular type of hazard.

Tom Daly: Yep.

Andrew Douglas: And when we’re doing risk assessments, what do we do? We look at the environment, we look at physical hazards. We don’t look at the people who are dealing there. So a classic example is meat processing, where we import labour where English is a second language. And we train primarily through a buddy system with people who do speak English.

Tom Daly: Yep.

Andrew Douglas: Are we confident that the knowledge is passed through actions by an English speaker namely? Well, I can tell you now, after working in the meat industry for over 30 years as lawyer, it doesn’t work. So we need to say what is the specific propensity of that individual in relation to that risk? For instance, I’ve got a short temper. So should I be in an anxious room where there’s a decision about to be made? Well, the answer, I’ve got to be there ’cause I’m a boss and I’m an owner. But how do I reflect? How do I think around what are the things could cause it? So it goes to psychological hazards as well.

Tom Daly: And it wouldn’t be enough just to say, just to you don’t get angry or you know, don’t do this.

Andrew Douglas: No. ’cause I can’t stop it.

Tom Daly: Yeah, yeah.

Andrew Douglas: As you can see, you’ve experienced it the uncontrolled rage, not true. But my point about it is safety is a much more reflective discipline. It’s not a task driven. So it does require you to actually look at people and circumstances, whether it’s environmental, physical, or psychological. It is the people that create the risk. It’s people who get killed. Machines might get smashed, but it’s people who get killed. And it’s people who make the decisions that permit them to be killed.

Tom Daly: Yep.

Andrew Douglas: Well, we’ve done a lot, haven’t we? Why don’t we go into the case study Tom and I’ll let you do the reading today ’cause this will be only the second time you’ve read it.

Tom Daly: Yeah, yeah. So Nev was a side sideshow operator for Big Tent Productions. He worked on the Spitting Teacups ride and was responsible for ensuring that no one climbed onto the ride when the brake was off, that all riders were securely seated before the teacups began to spin. And that the ride was appropriately maintained.

Nev was 67 years old and had been working in circuses since he ran away from home at the age of 13. He had no formal education, was illiterate and was in poor health due to a history of heavy drug use and alcohol abuse. He suffered from Type I diabetes, had cataracts and experienced severe arthritis in his knees and feet.

It was a Friday night at the park. A group of young men and women heavily affected by alcohol, arrived and attempted to climb the fences to access the rides. Two members of the group paid their fee to Nev, then climbed into a teacup and pretended to lock the mechanical safety arm, making it appear to Nev as though they were secure. As he moved from cup to cup, it was clear, even to an untrained eye, that they were not locked in as they were standing up. However, Nev either didn’t notice or ignored their behaviour.

Once all the teacups were full, he released the brake and allowed the ride to start. Nev had previously seen a safety report that he had submitted to his boss and had expressed his own desire for lockout devices to be installed on each teacup preventing the ride from starting unless all passengers were securely locked in. He was told that the cost was too high.

As the ride accelerated, both the boy and the girls stood up and waved to their friends below. They were thrown from the ride and landed on the concrete platform five metres away, dying on impact. Nev was immediately fired and was told to stay silent or he would receive no payment. WorkSafe attended the scene.

Andrew Douglas: Okay. There we go Tom, I haven’t told you any of the answers. So here’s the questions.

Tom Daly: This could be rough.

Andrew Douglas: What were they, what were the hazards and what were the risks? So can I just say what were the two people risks? There was Nev, wasn’t it?

Tom Daly: Yeah. His sort of general infirmities.

Andrew Douglas: Yeah, prevented him from actually probably making proper observations.

Tom Daly: Yeah.

Andrew Douglas: And the second is something you couldn’t stop coming into the place, which is young, yeah young kids coming in with alcohol and drugs, which increased their risk appetite.

Tom Daly: Yep.

Andrew Douglas: So we had two really obvious high risks and none of the processes contemplated those risks. So no matter what we had in place at that stage, there was a risk of injury. Then we look at the hazards, and we have, have you ever seen the spinning teacups?

Tom Daly: Yeah, yeah.

Andrew Douglas: Yeah.

Tom Daly: Not on the ride, but-

Andrew Douglas: No, no. I’ve sat on the ride as a young person and I could say it’s the most boring ride ever, just in case you’re out there ’cause I didn’t go that fast. But the reality was, if you don’t have a device that until they’re locked down, you can’t start it, then you’re going to have problems every single time. So pretty obvious hazards, weren’t they?

Tom Daly: Yep.

Andrew Douglas: What controls could have been in place?

Tom Daly: Well, firstly should never have been in the job.

Andrew Douglas: He should never have been in the job. That’s right. Secondly, these kids should never have been allowed in the gate.

Tom Daly: Yep.

Andrew Douglas: Okay.

Tom Daly: Yep.

Andrew Douglas: Third, when they did try and jump over fence and stuff, security should have intervened and taken ‘them away ’cause their behaviour was clearly misconduct and of a high risk.

Tom Daly: There’s not enough support.

Andrew Douglas: Not enough support there. Remembering, so if we’re talking about what is reasonably practical under the primary duties, it is to identify a hazard, determine the level of risk based on frequency and consequence and institute of control using the resources of the organisation okay? So, we’ve identified hazards here.

Tom Daly: Yeah.

Andrew Douglas: They’re all really, really high risks. Some of them are cheap. The method of control’s not hard, it’s intervention before people come through the gate. It’s not having Nev worked in there ’cause he’s not capable of working there. But what the circus can’t say, what Big Tent can’t say is I don’t have the resources to actually make it safe. Because if something is high risk, you have to stop it in safety law.

Tom Daly: It’s not an excuse to say we don’t have that.

Andrew Douglas: Yeah. You just can’t be in operation.

Tom Daly: You can’t be doing that right if-

Andrew Douglas: Yeah you can’t have that right if you can’t actually go .

Tom Daly: You can’t afford it.

Andrew Douglas: So I think that’s a fun sort of case study for that. Could Big Tent be liable under safety law? Well, the answer is-

Tom Daly: Clearly yes.

Andrew Douglas: Yes under primary duties. But it’s a bit worse actually because reckless endangerment means the identification of a risk that could cause serious injury or harm. It’s there. Okay?

Tom Daly: Yep and they knew about that.

Andrew Douglas: Then indifference. Carelessness about it. So they had some controls in place, but they needed those that would prevent the serious harm arising. And they had knowledge that they didn’t have that there ’cause they had a safety report okay? So when that comes to place, you are definitely in reckless endangerment lane because what it requires is subjective knowledge of risk. And you’ve got a report that tells you, so you’re informed of the risk and the barrier for bringing reckless endangerment is always your state of knowledge okay? So I don’t have a report. I’ve got to prove that Tom knew the risk and Tom goes, “Nah, I didn’t know the risk,” all over. Can’t win. Okay?

Tom Daly: Yeah.

Andrew Douglas: It’s actually easier to prove industrial manslaughter, which is to show there’s a breach of duty where you can see there’s a primary duty breach. It’s easy to show that it’s negligent. And negligence requires to exercise reasonable care to prevent harm okay? So there’s the duty, God, there’s negligence isn’t it? And there’s a breach of duty, but the negligence is so high ’cause you’ve been told exactly what the risk was and what could cause the death. So if you’ve got to that criminal level, I think you’re close to it. I think you’re really close. I think the owner’s close to it as well. So I don’t doubt that reckless endangerment would be bought against the company, but also the individual, the manager of it ’cause the manager also knew Kev and knew his infirmities.

Tom Daly: Yeah, can I also ask, you said for reckless endangerment there needs to be an indifference.

Andrew Douglas: Yeah.

Tom Daly: Is saying that we can’t afford it so that they’ve turned their mind to it, is that indifference?

Andrew Douglas: Yeah, that’s perfect indifference.

Tom Daly: Okay.

Andrew Douglas: Yeah it’s showing you have the knowledge of it and then going “Ah, too bad.”

Tom Daly: Yeah. Okay it’s too hard yeah.

Andrew Douglas: Alright. The owner of Big Tent was Graeme Sword. He grew up with Nev and kept him employed because of his friendship. He had moved Nev from more dangerous rides and sideshows because of his infirmities. The teacup ride had a safety report that he’d sought from an external expert, suggesting lockouts that would prevent the ride from starting if people were not locked in. Was Graeme at risk of prosecution? And if so for what? Well we’ve talked about haven’t it?

Tom Daly: Yeah .

Andrew Douglas: So let’s go to his due diligence obligations. Five tests. So if you’re not in Victoria and Victoria, do you have a knowledge of the risks? So he does and does he have the capacity to influence? Yes, he does. Section 144. He’s in the gun. Section 27 WHS. Did he have up-to-date knowledge on the law? On this issue he did. So he’s going all right for due diligence at the moment. Did he have systems in place that did it? No he didn’t. Did he provide sufficient resources, Brent the risk arising? No he didn’t. He’s in deep trouble. So he’s definitely a primary duty breach under the due diligence obligations. But as I’ve said, he’s staring, he needs a toothbrush. He’s off to jail ’cause-

Tom Daly: For what do you think?

Andrew Douglas: Either reckless endangerment or he’s an officer so he can be charged with industrial manslaughter or workplace manslaughter in Victoria. I think he’s at real risk of it because of his state of knowledge was so high not only of the risk, but of the problems Nev had.

Tom Daly: Yep.

Andrew Douglas: And the likelihood of death if it wasn’t implemented. So I think he’s in deep strife. Did Kev have a discrimination or General Protections claim against Big tent and Graeme?

Tom Daly: Yeah so I was thinking about this one before, and I’m interested to see what you’d say.

Andrew Douglas: No, I’m glad. What do you think?

Tom Daly: I think, I don’t think he’s been discriminated against because he is clearly, he was lax in performing his duties. Like he, it’s said in the story that he didn’t notice or ignored their behaviour.

Andrew Douglas: Yeah.

Tom Daly: So he is not fit for the job and probably should be dismissed.

Andrew Douglas: Okay so that’s what should happen.

Tom Daly: Yeah.

Andrew Douglas: But let’s just take it a step further. Was there any attempt to make reasonable adjustments? So if he’s not fit, what were the reasonable adjustments that could have been made? They’re actually the controls.

Tom Daly: Yeah.

Andrew Douglas: So you can’t blame him on one hand for failing for something which you failed. So he’s got a great General Protections Claim and he’s got a pretty good Discrimination Claim because no attempt was made. So there was this reducing of risk by taking him down through a number of different roles. But the adjustments he needed were physical adjustments around him to ensure if he was going to be employed with his infirmities, he could provide it. Now if those controls were in place, he was safe to do the job.

Tom Daly: So yeah. They’ve blamed him for something that they should have been helping him with.

Andrew Douglas: Yeah and he’s, you know, he is an old guy, he’s never going to get another job.

Tom Daly: That makes sense.

Andrew Douglas: So his General Protections Claim is, well if it’s General Protection from a case only three or four weeks ago, discrimination, what’s his general damages? They’re huge, $80,000-$100,000, because he’s a bloke who’s been terminated where a person without those attributes would not have been terminated. So they’re blaming him for his physical attributes, but they were able to fix him-

Tom Daly: And they put him in that position.

Andrew Douglas: They put him in that position. But his loss of earnings and things, they’re really quite profound. So he’s probably got three or four years of loss of earnings money on top of it. So the claim’s probably worth $400,000 to $500,000. It’s a significant claim. All right, did he have an unfair dismissal claim? Yes ’cause there was no process. So there’s a valid reason for the reason you described, there is a valid reason he should have seen them okay? So you might get over the road, remember the valid reason test is very small and then you come to five to four different tests. Was it fair under the Fair Work Act was the process? No, it doesn’t. Boom, fail there. Was it harsh? Yes it was. He said his whole history of services in the business. So it’s harsh.

Tom Daly: And is it also harsh for the same reasons that we just outlined?

Andrew Douglas: Yeah, yeah.

Tom Daly: That they have put him in that position.

Andrew Douglas: Yeah. Was it reasonable? Well, no, it’s not reasonable. What reasonable does is look at the collective circumstances around it. And was it just? No it’s not just ’cause it wasn’t lawful in the sense the lawful obligation rested on the employer. Although there’s what’s called a Section 25 Obligation Victoria to exercise reasonable care to prevent harm to yourself or others. And the same thing exists corporately under Section 23 in Victoria and has mirrored everywhere else. The reality was the obligation sat on the employer.

The obligation, that’s why they called primary duties ’cause they are the primary duty to the employer. So he’d have it very easy, but would he be reinstated? And the answer is, a court would really struggle with a person that level of infirmity going into an environment that’s so dangerous. So you’d probably be paid, you know, 10 grand or 15 grand, which is devastating for a man like this, isn’t it?

Tom Daly: Yeah.

Andrew Douglas: Okay.

Tom Daly: That’s sad.

Andrew Douglas: So there you go. That’s it, mate. We’ll run again next week but great to have you on Tom, and congratulations again on your mission.

Tom Daly: Thanks.

Andrew Douglas: And we look forward to seeing you next week, cheers.