First gross negligence conviction overturned

Resource Recovery Solutions Pty Ltd v Ayton [2021] WASC 443

The offence of “gross negligence” was introduced into Western Australia’s Occupational Safety and Health Act 1984 (OSH Act) in 2005, but it was not until 10 July 2020 that a company, Resource Recovery Solutions Pty Ltd (RRS), was convicted of breaching the OSH Act in circumstances of gross negligence.

On 10 December 2021, the conviction against RRS was overturned on appeal.

Background

The RRS case arose out of a workplace accident in January 2016, when a labour hire worker working at the RRS plant in Bayswater had their arm caught in an unguarded conveyor belt while clearing a blockage. The worker suffered serious injuries which required the amputation of their arm at the shoulder.

There were various charges brought against RRS, and on appeal there were several different appeal points argued, including whether a labour hire agreement existed between RRS and the worker’ employer. However, for the purposes of this article, I want to consider the arguments and findings in relation to the gross negligence charge.

The charge and what had to be proven

The relevant gross negligence charge which resulted in RRS being convicted at first instance alleged:

Where under a labour hire arrangement work was carried out for remuneration by a worker, namely … for the accused who was a client of a labour hire agent, namely …, in the course of the accused's trade or business, in relation to matters over which the accused had the capacity to exercise control, the accused failed to, so far as practicable, provide a working environment in which … was not exposed to hazards, in circumstances of gross negligence, contrary to sections 19(1), 19A(1) and 18A when read with s 23F of the Occupational Safety and Health Act 1984 . (39876/18)

There are several elements of the charge which the prosecution needs to prove, including, for example:

• That there was a labour hire arrangement;

• Work was carried out for remuneration by a worker; and

• The work was carried out for RRS.

The essence of the gross negligence charge required the prosecution to prove (in addition to all the “technical” elements), that RRS knew (had actual knowledge) if it did not implement the reasonably practicable measures alleged by the prosecution it would likely result in death or serious harm.

Reasonably practicable measure

In a prosecution under health and safety legislation, the prosecution has to say what reasonably practicable steps the defendant ought to have taken and prove that those measures were reasonably practicable.

In summary, in the RRS case, the prosecution said the following measures were reasonably practicable:

Reasonably practicable measure 1: fit physical guarding in place over the pinch points of the conveyor belt that could only be removed using a tool or key; and/or

Reasonably practicable measure 2: implementing and enforcing a system that combined an interlocking system and CCTV monitoring of blockages; and/or

Reasonably practicable measure 3: ensuring that workers were provided with information about the relevant hazards, risks, and safety controls for working close to plant containing potentially dangerous moving parts, so that they were not exposed to hazards, and understood that information; and/or

Reasonably practicable measure 4: ensuring that workers were instructed and trained in a formalised and documented safe working procedure (SWP) for clearing blockages in plant containing potentially dangerous moving parts, and that workers understood that instruction and training; and/or

Reasonably practicable measure 5: ensuring that workers provided with direct supervision to ensure that the SWP was followed.

In their findings, the Magistrate at first instance found that:

• Reasonably practicable measure 1 was not reasonably practicable;

• Reasonably practicable measure 2 was reasonably practicable, but the failure to implement and enforce a system that combined an interlocking system and CCTV monitoring of blockages did not occur in circumstances of gross negligence; and

• Reasonably practicable measures 3, 4 and 5 were reasonably practicable, and the failure to take those reasonably practicable measures did occur in circumstances of gross negligence.

Gross negligence

To prove gross negligence, the prosecution had to establish that RRS knew that failing to implement the training, instruction, and supervision measures described in Reasonably practicable measures 3 – 5 above would be likely to cause death or serious harm.

As part of presenting its case, the prosecution must provide “particulars” of the allegations it made against RRS. So, when the prosecution alleges that RRS knew the contravention would be likely to cause death or serious harm, they have to say why or how RRS knew that.

The particulars provided by the prosecution about the state of RRS’s knowledge were:

Particular 1: On 19 December 2013 RSS’s Director Salvatore Mangione was told by an Inspector that conveyor belts at the Workplace were not adequately guarded.

Particular 2: On 23 February 2015 a worker suffered a broken arm when it was dragged into an inadequately guarded moving conveyor.

Particular 3: 4 March 2015 an Inspector issued an Improvement Notice 61500197 to RRS requiring them to ensure that all dangerous moving parts of plant were adequately guarded.

Particular 4: On 5 August 2015 the Inspector visited RRS and explained that the level of guarding put in place to that date did not amount to compliance with the Improvement Notice.

Particular 5: On 30 October 2015 the Inspector visited RRS again and explained that the level of guarding still did not amount to compliance with the Improvement Notice.

Particular 6: On 18 January 2016 the Inspector sent an email and letter to RRS seeking an update about the Improvement Notice and on 25 January 2016 RSS replied effectively indicating they had complied with the Improvement Notice.

Particular 7: It is common knowledge that if a person has any part of their body or clothing down into a moving industrial conveyor belt, serious injury or death is likely to occur.

It is important to note that the prosecution is bound by its particulars. This means that the prosecution must prove the relevant knowledge based on the particulars set out in Particulars 1 – 7 above – it cannot rely on other matters to prove the relevant knowledge.

Practically, this meant that the prosecution had to prove that RRS had actual knowledge that the failure to provide adequate training, instruction, and supervision would be likely to cause death or serious harm because they knew that conveyor belts and other dangerous moving parts were not adequately guarded.

Findings

On appeal the Court found that a finding that RRS had actual knowledge that the failure to implement the reasonably practicable measures 3 – 5 would be likely to cause death or serious harm was not open based on the particulars alleged by the prosecution.

The appeal Court said:

[177] The prosecution's case that the appellant had the requisite knowledge, that is, knowledge that the contravention, by failing to ensure workers were provided with information, adequately instructed and trained, and directly supervised, would be likely to cause death or serious harm, was [set out in the particulars] However, there was a disconnect between the [particulars] of knowledge and the [reasonably practical measures] … because the particulars of knowledge … only concerned an allegation that the appellant knew that conveyor belts and other dangerous moving parts of plant were not adequately guarded … .

[178] The particulars of knowledge of the appellant … made no allegation that the appellant knew that unless the practical measure of providing workers with information about the hazards was complied with, or unless it ensured that workers were adequately instructed and trained in a formalised and documented safe working procedure and provided with direct supervision to ensure that the safe working procedure was correctly followed at all times, a worker was likely to be seriously injured or to die.

[198] Having found that a finding of actual knowledge by the appellant must relate to the specific contravention, and given the prosecution's case as it is put in its specified particulars of knowledge, it is clear that … the appeal has been made out because a miscarriage of justice was occasioned by a failure by her Honour to confine the evidence relied upon in making her finding beyond reasonable doubt that the appellant had actual knowledge of the contravention, and its likely consequences, and acted or failed to act in disregard of the likelihood of causing death or serious harm … .

The outcome

Under the OSH Act there are different levels of offences for breaches of the general duty provisions set out in section 19 (i.e., to ensure as far as reasonably practicable that employees are not exposed to hazards), including a breach:

• that does not cause death or serious injury; or

• that does cause death or serious injury; or

• which occurs in circumstances of gross negligence.

If a company is charged with a breach of section 19 in circumstances of gross negligence, but is acquitted, they can still be convicted of the less serious charge, being a breach, which causes death or serious injury (but not in circumstances of gross negligence).

Even though RRS was acquitted of the gross negligence offence, a conviction was substituted on the lesser offence of causing death or serious injury.

RRS will be sentenced in relation to that conviction at a later date.