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.”
In the wake of the crash, investigators from the Australian Transport Safety Bureau (ATSB), the lead investigation agency, and Civil Aviation Safety Authority (CASA) will be trying to determine why the aircraft lost power and was unable to be flown to a safe landing.
As part of the aircraft’s type certification it is required to be able to maintain a minimum 5% climb gradient following the failure of the critical engine on take-off. This means it should have been able to at least climb over local obstacles, and circle around for a landing.
So a key question in the minds of investigators will be the reasons why this particular aircraft on this occasion wasn’t able to achieve this.
If the malfunction was related to only one engine, there has to have been some other factor degrading the aircraft’s single engine performance.
Maybe the engine that failed did not auto-feather, or could not be feathered by the pilot. This is where the prop blades on the failed engine are rotated to produce minimal drag, allowing the plane to perform better with only one engine operating.
If the failed engine didn’t feather correctly, it could have resulted in the windmilling propeller producing significant additional drag and seriously affecting aircraft controllability.
Or perhaps a much more insidious problem occurred causing full or significant partial power loss on both engines, presenting the pilot with an extreme emergency situation to manage. If that were the case, there would have to have been a common failure affecting both engines, such as a fuel quality, fuel starvation or an engine management issue.
The investigators will be clearly interested in the engines, propellers and fuel systems. They will also be exploring all the aircraft’s other systems, such as avionics, flight management computers, airframe and flight controls, looking for any evidence of malfunction or anomaly that could have contributed to the cause of the crash.
Investigators will also have a focus on all the possible human factors issues. The pilot’s response to the emergency will be examined and any factors, such as fatigue, illness or health issues that could have contributed will be explored.
The investigation will be conducted as a systematic and scientific process. Everything that could have contributed to the cause of the crash will be considered. Many will be discounted. Some will inevitably be proven.
The investigators findings will be solely based on the evidence from the wreckage, and from analysis of evidence external to the aircraft, such as maintenance documentation, air traffic control recordings, available film footage and, not least, the observations of the witnesses.
The investigation will be an arduous and exacting task given the apparent fragmentation of the aircraft and the post crash fire. However, I believe ATSB investigators are among the best in the world and I have no doubt they’ll reveal the causal sequences that led to this accident, so that any lessons can be learned and corrective actions implemented to prevent recurrences.
Aviation is the safest means of transport in no small part due to the work of air safety investigators who shed light on the causes of those accidents which do occur. This accident will continue that tradition, I’m certain.
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.
As commuters shimmy past large, lumbering trucks on the road, they may glance over and wonder, “How safe is that driver next to me?” If the truck driver is in poor health, the answer could be: Not very. Commercial truck drivers with three or more medical conditions double to quadruple their chance for being in a crash than healthier drivers, reports a new study led by investigators at the University of Utah School of Medicine in the USA.
The findings suggest that a trucker’s poor health could be a detriment not only to himself but also to others around him. “What these data are telling us is that with decreasing health comes increased crash risk, including crashes that truck drivers could prevent,” says the study’s lead author Matthew Thiese, Ph.D., an assistant professor at the Rocky Mountain Center for Occupational and Environmental Health (RMCOEH). The results were published in the Journal of Occupational and Environmental Medicine.
Keeping healthy can be tough for truck drivers, who typically sit for long hours behind the wheel, deal with poor sleeping conditions, and have a hard time finding nutritious meals on the road. Now, examination of medical records from 49,464 commercial truck drivers finds evidence that their relatively poor health may put them at risk in more ways than one. 34 percent have signs of at least one of several medical conditions that had previously been linked to poor driving performance, from heart disease, to low back pain, to diabetes.
Matching drivers’ medical and crash histories revealed that drivers with at least three of the flagged conditions were more likely to have been involved in a crash. There were 82 truck drivers in the highest risk group, and results were calculated from millions data points reflecting their relative crash risk every day for up to seven years. The investigators found that this group was at higher risk for different categories of crashes, including accidents that caused injury, and that could have been avoided.
The rate of crashes resulting in injury among all truck drivers was 29 per 100 million miles traveled. For drivers with three or more ailments, the frequency increased to 93 per 100 million miles traveled, according to Thiese. The trends held true even after taking into consideration other factors that influence truckers driving abilities such as age and amount of commercial driving experience.
The new findings could mean that one health condition, say diabetes, is manageable but diabetes in combination with high blood pressure and anxiety could substantially increase a driver’s risk.
“Right now, conditions are thought of in isolation,” says Thiese. “There’s no guidance for looking at multiple conditions in concert.” Current commercial motor vehicle guidelines pull truckers with major health concerns from the pool but do not factor in an accumulation of multiple minor symptoms.
Considering that occupants of the other vehicle get hurt in three-quarters of injury crashes involving trucks, it’s in the public interest to continue investigating the issue, says the study’s senior author Kurt Hegmann, M.D., M.P.H., director of RMCOEH. “If we can better understand the interplay between driver health and crash risk, then we can better address safety concerns,” he says.
Matthew S. Thiese, Richard J. Hanowski, Stefanos N. Kales, Richard J. Porter, Gary Moffitt, Nan Hu, Kurt T. Hegmann. Multiple Conditions Increase Preventable Crash Risks Among Truck Drivers in a Cohort Study. Journal of Occupational and Environmental Medicine, 2017; 1 DOI: 10.1097/JOM.0000000000000937
The evidence is that if you ensure that people travel safely in terms of safe rates you will get proper outcomes … you will get improved safety. – Shadow Minister for Infrastructure and Transport, Anthony Albanese, speaking on RN Breakfast, April 11, 2016.
Turnbull told reporters that the tribunal is not effective in improving safety and that it undermines owner operator drivers and family businesses.
This FactCheck will not examine whether the Road Transport Remuneration Tribunal is the best way to improve road safety. It confines itself only to testing against the evidence a recent assertion by Shadow Minister for Infrastructure and Transport, Anthony Albanese, that better driver pay results in improved safety.
Is that assertion correct?
Checking the source
When asked for evidence to support his statement, Albanese’s spokesman referred The Conversation to Shadow Minister for Employment and Workplace Relations, Brendan O’Connor.
On the question of pay and road transport safety, the Pricewaterhouse Coopers report said:
directly comparing remuneration and safety does demonstrate statistically significant correlations. However, results vary substantially.
the four most recent papers range in conclusion from a) a very large effect, b) a U-shaped curve, in which a large positive effect of initial remuneration rises eventually turns negative, through to c) and d) with a very small effect
the literature is very limited in size and focuses on employee drivers
Drivers are likely to benefit the most [from tribunal orders] due to increased remuneration and fewer road accidents, followed by government and members of society who face costs following road crashes, and will therefore benefit from an improvement in safety.
You can read the full response from O’Connor’s spokeswoman here.
If you just read that Pricewaterhouse Coopers report excerpt above, you might think that the evidence is fairly mixed. In fact, the overwhelming weight of evidence supports Albanese’s claim: there is persuasive evidence of a connection between truck driver pay and safety.
What do other Australian studies say?
Australian studies conducted since the 1990s found a significant link between scheduling pressures, unpaid waiting time, insecure rewards and access to work, and hazardous practices such as speeding, excessive hours and drug use by drivers. The researchers found that those on trip-based payment schemes (typical for owner drivers but also increasing amongst employee drivers) drove on average 15km per hour faster than those on fixed rate payments (like hourly wages).
A 2001 study found drivers who were paid in terms of the amount of work they did reported fatigue more often than drivers who were paid in terms of the time they were working (for example, hourly rates).
An Australian study published in the American Journal of Epidemiology in 2007 analysed drug use by drivers in both surveys and concluded that:
the strongest predictors of drug use were payment based on the amount of work completed and fatigue reported as a major problem … The strong association of payment by results and low pay with drug use among Australian long-distance truck drivers is consistent with other research suggesting that economic factors are an important influence on health and safety in the workplace.
An Australian survey of 300 long haul drivers found owner-drivers experienced significantly worse health scores than employee drivers, especially when employed on the most competitive route (Melbourne – Sydney).
Owner-drivers and drivers working for small firms reported more injuries than those employed by larger firms and owner-drivers had a slightly higher crash rate.
Another survey of Australian heavy vehicle drivers published in 2014 found:
piece-rate compensation methods were associated with higher levels of fatigue-related driving than non-piece-rate methods. Follow-up analysis also revealed higher caffeine and amphetamines use among piece-rate drivers for the purpose of staying awake while driving.
In that study, the authors found no association between compensation methods and sleepiness.
What do US studies say?
A US paper published in 2002 found that driver pay has a strong effect on safety outcomes.
Similarly, a large survey of long haul truck drivers undertaken by the National Institute for Occupational Safety and Health in the US detailed scheduling pressure on drivers, widespread unsafe driving practices, regulatory non-compliance and failure to report injuries.
Safety outcomes should not be confined to crashes, although understandably these are the focus of policy and public debate. Safety outcomes include unsafe work practices (like excessive hours, speeding, poor maintenance of trucks and use of drugs).
Most of the research has relied on cross-sectional surveys of drivers, meaning they analyse a snapshot of data from a population at a given moment in time (as opposed to longitudinal studies, which follow the same people over time). Cross-sectional surveys can have limitations.
Comparing safety outcomes between employee and owner drivers is also difficult because owner drivers are much more sensitive to market ups and downs. There has been a convergence of conditions between employee and owener-drivers, especially in the small firms (for example, many employee drivers are paid on trip-based rates now and Award non-compliance has also grown due to competitive pressures). Most truck safety studies have not examined this.
Nonetheless, the research findings are clear and consistent.
Albanese was correct. There is persuasive evidence of a connection between truck driver pay and safety. – Michael Quinlan
This is an excellent brief summary of the literature. Albanese is quite right that “safe rates” gets the public a safer outcome. The literature the expert cites is quite competent (Australians are way ahead of Americans on this) and is some of the same literature I would cite, and have cited, in my own work. I see that this expert has cited my work, which I modestly think is valid and has been peer reviewed.
Studies my team performed for the US Department of Transportation Federal Motor Carrier Administration in 2002 demonstrated that higher compensation led to significantly safer truck driver performance. For every 10% more in truck driver mileage pay rate, a very large American truckload carrier found that the probability that a driver would have a crash declined 40%.
Research shows this effect is true across carriers. A cross-sectional study of 102 non-union truckload motor carriers found that for every 10% increase in truckie compensation, carriers’ crash rates were 9.2% lower.
In sum, there is ample evidence that supports the relationship between compensation and safety in trucking and across other modes. In my own work, I see it in intercity buses. In others’ work, I see it in airlines and even in rail. – Michael H. Belzer