Negligent Employers & Senior Executives Can Be Charged With Industrial Manslaughter- New Queensland Laws
In a media statement from the Queensland government, Industrial Relations Minister Grace Grace announced new industrial manslaughter laws passed the parliament, leaving negligent employers culpable in workplace deaths with nowhere to hide.
In response to the tragic fatalities at Dreamworld and an Eagle Farm work site in 2016, the Queensland government undertook a Best Practice Review of Workplace Health and Safety in Queensland. The creation of the new offence of industrial manslaughter was one of 58 recommendations contained in the report. Industrial manslaughter allows the criminal prosecution of owners and employers for workplace deaths.
“Negligent employers culpable in workplace fatalities in Queensland will face severe penalties for the new offence of industrial manslaughter,” said Minister Grace.
“Individuals guilty of industrial manslaughter will face 20 years imprisonment, with corporate offenders liable for fines of up to $10 million. These penalties send out a strong message to all employers that negligence causing death won’t be tolerated under any circumstances.
“Because of increasingly elaborate corporate structures, up until now, it’s been difficult to prosecute some employers for manslaughter.
“But these new laws will hold all employers – regardless of their size or structure – accountable for negligence contributing to a worker’s death.
According to the review, worker representatives and plaintiff lawyers favour the creation of an offence of gross negligence causing death, while industry groups and other legal professional groups favoured retaining the status quo.
To date, the only Australian jurisdiction which had a specific industrial manslaughter type offence was the Australian Capital Territory.
“The legislation passed today is all about ensuring all Queensland workers can return home safely to their loved ones after a day’s work.”
The disaster at Grenfell Tower has been described by David Lammy, Labour MP for Tottenham, as a case of “corporate manslaughter”. According to English law, companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures, resulting in a gross breach of a duty of care.
Amid calls for arrests, it’s time to consider whether the failings that led to the Grenfell disaster could possibly justify the use of the label “corporate manslaughter” – and what this would mean for victims who seek justice.
Prosecutions for this offence are of a corporate body (defined broadly enough to include public authorities) and not individuals – so we probably won’t see any pictures of executives being led away in handcuffs. That said, directors, board members and others may still be liable to prosecution under health and safety law or general criminal law. The offence also covers contractors and sub-contractors, so long as they owe a duty of care to the victims.
A duty of care is an obligation, whereby an organisation must take reasonable steps to protect a person’s safety. Legally, it is broadly understood as avoiding negligence by not placing people in danger. These duties also exist in relation to workplaces and equipment, as well as to products or services supplied to customers. This suggests that when an entity exercises control over people and spaces it has a responsibility to protect them.
The corporate manslaughter offence uses the same definitions of duty of care as the common law offence of gross negligence manslaughter. This means that the threshold for the offence is high – the way that activities were managed or organised must have fallen seriously far below reasonable standards.
Any organisation convicted of this offence would face a fine of anywhere between £180,000 and £20m (though there is no hard maximum limit). They would also be handed a publicity order, which requires them to publicise the conviction, along with certain details of the offence, as specified by the court. The court can also set a remedial order, requiring the organisation to address the cause of the fatal injury, which in this case could have consequences for similar tower blocks.
While there is no direct precedent for this kind of tragedy – involving massive loss of life for non-workers – to help us estimate penalties, some indications can be gleaned from the fines imposed on rail operators for train accidents. In 2003, Thames Trains and Network Rail were fined over £2m and £4m respectively, in relation to the health and safety breaches that led to the 1999 Ladbroke Grove train crash, which killed 31 people. And in 2006, Network Rail was fined £3.5m and Balfour Beatty an eventual £7.5m (following an appeal) for faults leading to the fatal derailment of a train near Hatfield in 2000.
It’s also possible for an organisation to be charged with both corporate manslaughter and health and safety offences in the same proceedings. In these circumstances, if an organisation is convicted of corporate manslaughter the jury may still be asked to return a verdict on the health and safety charges if the interests of justice so require, which can have further consequences for individuals.
Corporate manslaughter is an extremely serious offence, reserved for the very worst cases of corporate mismanagement leading to death. Even before knowing the full extent of the Grenfell disaster, it’s safe to say that it is likely to fall in this category.
Potential defendants in this case – should one eventually be brought – would probably include the building’s management company, the Royal Borough of Kensington and Chelsea Tenant Management Organisation (KCTMO), and possibly also contractors involved in the tower’s recent renovation.
But advocates for the victims are likely to be looking further than that, seeking to challenge the behaviour of public authorities and political decisions about spending on improvements to social housing in London. Prosecutions of public authorities would have far-reaching political consequences.
If the defendant is a public authority, exemptions may apply to decisions about public policy. For example, strategic funding decisions and other matters involving competing public interests, cannot be challenged in criminal proceedings. But decisions about how resources were managed are not exempt, which means that deliberate under-investment in maintaining safety could lead to prosecutions.
According to the law, the offence is concerned with how an organisation’s activities were managed or organised. So, courts will look at management systems and practices across the organisation in question, and investigate whether an adequate standard of care was applied. A substantial part of the failing must have occurred at a senior management level for a conviction to be successful.
Juries would be required to consider the extent to which an organisation was in breach of health and safety requirements, and assess how serious those failings were. They would also consider wider cultural issues within the organisation, such as attitudes or practices that tolerated health and safety breaches. What’s more, it would not be necessary for the management failure to have been the sole cause of death, so a tenant’s actions in starting this fire would not exonerate those responsible for inadequate safety measures.
For now, London is in mourning. But when the immediate phase has passed, the law will turn its attention to those who may be responsible, and see that justice is carried out.
It is often said that our approach to health and safety has gone mad. But the truth is that it needs to go scientific. Managing risk is ultimately linked to questions of engineering and economics. Can something be made safer? How much will that safety cost? Is it worth that cost?
Decisions under uncertainty can be explained using utility, a concept introduced by Swiss mathematician Daniel Bernoulli 300 years ago, to measure the amount of reward received by an individual. But the element of risk will still be there. And where there is risk, there is risk aversion.
Risk aversion itself is a complex phenomenon, as illustrated by psychologist John W. Atkinson’s 1950s experiment, in which five-year-old children played a game of throwing wooden hoops around pegs, with rewards based on successful throws and the varying distances the children chose to stand from the pegs.
The risk-confident stood a challenging but realistic distance away, but the risk averse children fell into two camps. Either they stood so close to the peg that success was almost guaranteed or, more perplexingly, positioned themselves so far away that failure was almost certain. Thus some risk averse children were choosing to increase, not decrease, their chance of failure.
So clearly high aversion to risk can induce some strange effects. These might be unsafe in the real world, as testified by author Robert Kelsey, who said that during his time as a City trader, “bad fear” in the financial world led to either “paralysis… or nonsensical leaps”. Utility theory predicts a similar effect, akin to panic, in a large organisation if the decision maker’s aversion to risk gets too high. At some point it is not possible to distinguish the benefits of implementing a protection system from those of doing nothing at all.
So when it comes to human lives, how much money should we spend on making them safe? Some people prefer not to think about the question, but those responsible for industrial safety or health services do not have that luxury. They have to ask themselves the question: what benefit is conferred when a safety measure “saves” a person’s life?
The answer is that the saved person is simply left to pursue their life as normal, so the actual benefit is the restoration of that person’s future existence. Since we cannot know how long any particular person is going to live, we do the next best thing and use measured historical averages, as published annually by the Office of National Statistics. The gain in life expectancy that the safety measure brings about can be weighed against the cost of that safety measure using the Judgement value, which mediates the balance using risk-aversion.
The Judgement (J) value is the ratio of the actual expenditure to the maximum reasonable expenditure. A J-value of two suggests that twice as much is being spent as is reasonably justified, while a J-value of 0.5 implies that safety spend could be doubled and still be acceptable. It is a ratio that throws some past safety decisions into sharp relief.
For example, a few years ago energy firm BNFL authorised a nuclear clean-up plant with a J-value of over 100, while at roughly the same time the medical quango NICE was asked to review the economic case for three breast cancer drugs found to have J-values of less than 0.05.
Risky business. Shutterstock
The Government of the time seemed happy to sanction spending on a plant that might just prevent a cancer, but wanted to think long and hard about helping many women actually suffering from the disease. A new and objective science of safety is clearly needed to provide the level playing field that has so far proved elusive.
Putting a price on life
Current safety methods are based on the “value of a prevented fatality” or VPF. It is the maximum amount of money considered reasonable to pay for a safety measure that will reduce by one the expected number of preventable premature deaths in a large population. In 2010, that value was calculated at £1.65m.
This figure simplistically applies equally to a 20-year-old and a 90-year-old, and is in widespread use in the road, rail, nuclear and chemical industries. Some (myself included) argue that the method used to reach this figure is fundamentally flawed.
In the modern industrial world, however, we are all exposed to dangers at work and at home, on the move and at rest. We need to feel safe, and this comes at a cost. The problems and confusions associated with current methods reinforce the urgent need to develop a new science of safety. Not to do so would be too much of a risk.
This Safe Work Australia film features three different perspectives on how workplace leaders can design good work and influence their safety culture, not only in their own business, but across their supply chain and the broader community. This seminar features three business leaders from Australian Country Choice, Lend Lease and Toll NQX.
Leaders at all levels have a critical role to play in building a positive safe work culture, influencing safety improvements, and designing safe, healthy and productive work.
For many workplace leaders, the safety vision they are still working towards is focused on achieving an absence of injury. But there is so much more to be gained through creating a strong safety culture, including enhanced worker health and wellbeing and increased business success and productivity.
Who is this presentation for?
Regulators, industry representatives, worker representatives and leaders at all levels – from officers and CEOs to middle management and those with work health and safety or human resource functions.
Dr Simon Blackwood, Deputy Director General at the Department of Justice and Attorney General with the Queensland Government.
Jennie Hunter, Manager of Leadership and Culture with Workplace Health and Safety Queensland.
Worker compensation claims have been decreasing over time but this masks all kinds of problems with our wellbeing at work.
Making our workplaces healthier and safer means we have to confront all those things causing us stress at work. And that’s not going to be solved by standing desks, complimentary massage or lunchtime yoga.
LISTEN NOW > to the ABC RadioNational podcast of ‘WorkLife: Why is work making us sick?”