In an interesting appeal, the Victorian Court of Appeal has reiterated that employer’s duties to implement sufficient controls applies to all subsisting risks regardless of how unlikely the risk was to occur.
Keilor Melton Quarries had previously been charged and convicted of breach of their duties to manage and control a workplace when a truck driver in May 2016 had been reversing up to the edge of a stockpile to empty the pile of scoria. In the process the truck ended up flipping over the edge resulting in the driver’s death. An investigation revealed that the protective barrier that usually surrounded the edge of the stockpile had not been maintained and had fallen away.
An appeal was lodged by Keilor Melton Quarries on two grounds:
- They did not have control of the quarry’s daily operations; and
- The safety controls were unnecessary as trucks were prohibited from entering the stockpile area since December 2015. Essentially, they argued that “If there is no intention [to use the area], then you don’t need these measures, and there was no intention.” As no trucks were to go up there, there was no subsisting risk.
The Appeal Court determined that as there was a State Government-issued “extractive industry work authority” the company essentially had sole legal authority for all of the quarrying works at the site.
More importantly the Court had an interesting discussion over the idea of ‘necessity’ and ‘subsisting risks’. The judges noted that “the concept of necessity has no place, however, in the conception of reasonable practicability.” The OHSA requires employers to execute what is “capable of being done” not what is “needing to be done.” Additionally, the judges found that there can only be no risk if there is no possibility of the risk ever occurring. If there is any potential risk, then employers are required to implement sufficient safety measures. In this case, it was found that there was unimpeded access to the top of the stockpile, the only true way there could be no subsisting risk is if the stockpile was completely inaccessible.
As there was a subsisting risk, it was reasonably practical for Keilor Melton Quarries to have erected a new barrier. The fine of $230,000 was upheld.
Lessons
- Human error is inevitable, so a direction to NOT do something is not enough and will not absolve you of liability, particularly where the risk of serious injury or death is high;
- Remember to conduct regular risk assessments to identify all risks – big and small and
- Remember reasonable practicability – you don’t have to do everything BUT you must put in place all practical measures even if the risk is unlikely to eventuate.
