Prosecutors reaching for biggest WHS stick, lawyers say

Hard line being taken on preventable deaths at work and elsewhere

Prosecutors reaching for biggest WHS stick, lawyers say
Clyde & Co ‘s Michael Tooma and Lucy Bochenek


Manslaughter and recklessness charges are increasingly being pursued against managers and company owners following work incidents, workplace health and safety (WHS) lawyers note.

Clyde & Co partner Michael Tooma and special counsel Lucy Bochenek use trucking, bus and construction industry examples to illustrate the trend.

The trucking example involves the case of South Australian company owner Peter Francis Colbert, who was jailed late last year after a driver’s death in a chronically faulty truck.

The lawyers note that following this decision, the South Australian Occupational Safety, Rehabilitation and Compensation Committee inquiry recommended that the Director of Public Prosecutions and the Crown Solicitor in South Australia develop a protocol for initiating work-related manslaughter prosecutions after workplace deaths in appropriate circumstances.

The bus company charges stem from a single vehicle crash where a bus driver died and 28 passengers were injured in 2010 but the criminal charges were laid this month.

After an extensive Traffic and Highway Patrol's Crash Investigation Unit investigation, NSW Police charged manager and a mechanic with various offences including manslaughter; recklessly causing grievous bodily harm; hindering the course of an investigation into a serious indictable offence, intending to pervert the course of justice; concealing a serious indictable offence and publishing false material to obtain property. Both men were granted bail, with the two due to front court in the coming months.

"This move to pursue serious criminal charges against individuals involved in workplace incidents signals a change in prosecutorial mind-set," the lawyers state.

"Up until now, prosecutors have been hesitant to commence proceedings against individuals, typically only using them as a tool for plea bargaining or in cases where a company has been wound up.

"Recently though, prosecutors in both the general criminal sphere as well as safety regulators have experimented with these more serious charges."

They go on to highlight cases in the last six months involving an electrocution and a fatal fall that have led to "Category 1" proceedings, which are those that attract the highest penalty.

"Whether this trend of pursuing manslaughter and recklessness charges in relation to workplace incidents continues remains to be seen; however, it is an acknowledgement of a long-held belief of regulators (and safety commentators) that the best way to effect positive change in organisations in terms work health and safety is to make the leaders of those organisations accountable," they conclude. 


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