The recent case of SafeWork NSW v Southern Meats Pty Ltd [2021] NSWDC 192 (21 May 2021) is a good example of how employers can get caught out with what evidence is considered by the Court. This case was about admissibility of evidence of the steps taken by the employer after the incident occurred, specifically actions taken to comply with the Regulator’s notice of compliance. The employer tried to argue that it was irrelevant to the idea of reasonably practicable as it depends on decision maker’s knowledge at time of incident not what they knew after. Prosecution argued it was relevant to idea of ‘practicability’ and ‘possibility’ and while it could not define reasonable practicability, it was still relevant for consideration. The Court agreed because it was necessary to consider whether the employer could of taken the step, as one of the factors for reasonable practicability, therefore evidence admissible.

This is a massive risk that employers face if they were to blindly comply with any compliance notice they were issued. Most of the time, regulators will seek to impose more stringent obligations on employers through these notices that go far beyond the requirements of reasonable practicability. If faced with a serious incident it is best to be proactive and get in front of all of this – ensure that you quickly engage a safety consultant under legal professional privilege, tag out and lock out any relevant plant and challenge any notices that impose higher obligations than necessary to avoid costly consequences later.

Key Lessons

• Be proactive or evidence will go against you – it is a costly mistake!
• Court can and will use post-incident actions as evidence towards reasonable practicability
• Regulator will always issue compliance notices which go beyond reasonable practicability requirements – do not blindly comply. Otherwise will be used as evidence against you in Court later
• Always get compliance notices amended if they go beyond reasonable practicability – use internal review procedures through Regulator or appeal through Court if necessary
• For any incidents engage external safety auditor to look into cause of incident but do it under LPP to avoid evidence being used by Regulator
• For plant machinery, ensure machines are promptly locked out and tagged out where not compliant with safety law so regulator cannot issue a notice (unless the plant or machinery was causative of the incident). This means you can control process and determine when equipment can be used again without waiting for Regulator sign off.