The rise on the use of 'pure risk' WHS prosecutions

Historically, the vast majority of work health and safety prosecutions in Australia have been initiated in response to an incident resulting in injury or death to a worker or another person — that is, after the risk of injury or death has materialised in an incident that has actually caused these things. Recently, however, in some Australian states there has been an increase in successful ‘pure risk’ WHS prosecutions: prosecutions initiated for breaches of the duties to ensure health and safety in WHS legislation in circumstances where no harm has yet resulted, writes RICHARD JOHNSTONE, Honorary Professorial Fellow, Melbourne Law School, The University of Melbourne.

What are pure risk prosecutions?

For the purposes of this article, a pure risk prosecution is a prosecution initiated for a ‘risk-based’ offence — such as a breach of a general duty in the harmonised Work Health and Safety Acts (WHS Acts) or the Victorian Occupational Health and Safety Act 2004 — that occurs in circumstances that have not already resulted in death, injury, illness, actual contact with a hazardous substance or bacterium, or a ‘near miss’. The key point is that the general duties imposed upon a person who conducts a business or undertaking (PCBU); an employer; a self-employed person; an upstream party such as a designer, manufacturer or supplier of plant, substances or structures for work; an officer and a worker do not require the occurrence of death, injury or illness as an element of the offence: they are ‘inchoate’ offences.

An early example of a successful pure risk prosecution was the English case of R v Board of Trustees of the Science Museum [1993] 1 WLR 1171. The museum was prosecuted for a breach of the employer’s general duty to persons other than employees in the United Kingdom Health and Safety etc at Work Act 1974 after WHS inspectors found that its air conditioning cooling tower contained the bacterium that causes legionnaire’s disease. The prosecution alleged that the air-conditioning system failed to institute and maintain a regime of regular cleansing and disinfection, failed to maintain in operation an efficient chemical water treatment regime and failed to monitor its efficiency.

In reasoning that has been accepted and adopted by Australian courts,¹ the Court of Appeal of England and Wales rejected a submission that the prosecution had to establish an actual danger, as distinct from the mere possibility of danger, and accepted that members of the public were exposed to risks to their health and safety because of the possibility that the bacterium might escape into the atmosphere outside the museum. In other words, the prosecution had to establish that the bacterium was present in the air-conditioning system and that there was a ‘risk’ of it escaping, but not that it was present in the atmosphere outside the museum and capable of being inhaled. A person can be ‘exposed to risk’, and in breach of the general duty, because of their proximity to a risk and in the absence of a finding of any mechanism by which the risk could have ‘come home’.

In summary, the general duties in the Australian WHS statutes, and some duties in the WHS regulations, create inchoate offences, which means that the WHS regulators can initiate a pure risk prosecution for breach of those duties where a person to whom the duty is owed has been exposed to a risk to their health and safety and the person owing the duty has not taken reasonably practicable measures to eliminate, or at least minimise, the exposure.

Why initiate pure risk prosecutions?

From a regulatory policy perspective, pure risk prosecutions are an essential component of a responsive enforcement strategy using an escalating hierarchy of sanctions — as is found in the Australian WHS statutes and in the National Compliance and Enforcement Policy — because they signal to duty holders that the regulator is willing and able to use all sanctions (most notably prosecution) in the hierarchy to reinforce the need for systematic WHS management and safe systems of work, even where there has not yet been an incident resulting in injury or death. Further, pure risk prosecutions enable the WHS regulator to prosecute contraventions of the general duties for all kinds of hazards and redress the historical pattern of prosecuting mainly for safety issues such as dangerous plant and working at height. They are also an important component of a general deterrence strategy to draw PCBUs’ attention to addressing hazards at work proactively (and before any harm occurs) through a systematic approach to managing WHS.

Finally, the legal framework for regulating WHS in Australia has institutionalised a primary preventive framework for businesses and undertakings, officers, workers (and their representatives) and WHS regulators to take proactive action to prevent, at source, work-related death and physical and psychological illness or injury by, to quote the Safe Work Australia website, “applying a risk management approach to eliminate or minimise risks so far as is reasonably practicable”.

How do WHS regulators find out about pure risk scenarios?

Because ‘pure risk’ scenarios are not ‘incidents’ falling within the ambit of section 38 of the WHS Acts, and therefore there is no legal obligation to report them to the WHS regulator, how do they come to the attention of the regulator? The WHS inspectorates are likely only to find out about the possible WHS Act contravention if:

• a PCBU voluntarily reports the circumstances to the regulator, which occurred in one of the New South Wales pure risk prosecutions: SafeWork NSW v Ambulance Service of NSW [2023] NSWDC 134;
• a worker or someone else makes a complaint to the regulator about defective systems of work, or dangerous work activities;
• workers realise that the work was dangerous and refused to work, or other workers intervene and advise the exposed worker(s) to stop working, and inspectors are notified, presumably through a complaints process, and possibly through the issue resolution process in the WHS Acts (section 89); or
• an inspector attends a workplace in the course of a programmed proactive, or random, visit: for example, if WHS inspectors observe unsafe systems of work, unguarded plant, defective scaffolding or inadequate fall protection; or if inspectors find out about a dangerous scenario while at a workplace in response to a report of an unrelated incident.

Constructing pure risk cases

How do WHS investigators investigate WHS offences if there is no incident to examine? And how do investigators and prosecutors demonstrate the reasonably practicable measures a business should have implemented to address a hazard?

A key factor enabling pure risk prosecutions has been that from the 1990s governments and WHS regulators have expanded the range of hazards addressed in the WHS regulations, codes of practice and guidance material, so that there is now detailed guidance about compliance with the WHS general duties available to employers and, significantly for this article, for inspectors, prosecutors and the courts. Consequently, prosecutors have been able to use provisions in WHS regulations, codes of practice and Australian standards to demonstrate to the court the reasonably practicable measures that should have been implemented to address a hazard.

Second, in one case which examined WHS risks from deficiencies in an ambulance service’s systems and processes for handling restricted drugs (SafeWork NSW v Ambulance Service of NSW [2023] NSWDC 134), the prosecutor successfully referred the court to guidance provided by expert bodies, including the National Safety and Quality Health Service Standards, the Scheduling Policy Framework for Medicines and Chemicals endorsed by the Australian Health Ministers Advisory Council, the NSW Health Drug and Alcohol Withdrawal Guidelines and the Operation Tone Report by the Victorian Independent Broad-Based Anti-Corruption Commission.

A third approach was to refer to measures introduced by the defendant in response to a statutory notice. For example, in SafeWork NSW v Dial-A-Dump Pty Ltd [2023] NSWDC 260 the prosecution relied on the reasonably practicable measures ensuring health and safety that were introduced to comply with a prohibition notice and two improvement notices issued by SafeWork NSW after its investigation of circumstances that exposed two workers to serious risks to their health and safety.

In some cases, the court referred to a combination of these approaches: see, for example, SafeWork NSW v N Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205.

When it came to investigating and proving possible contraventions of the WHS Act, rather than focus on the details of an incident to prove that the defendant had contravened provisions of the WHS Acts, in the pure risk prosecutions the prosecutors focused on one or more explanations of:

• failures to develop a systematic approach to WHS management;
• failures to have a documented safe system of work;
• failures to implement documented procedures; and
• defects in WHS procedures or systems of work, including actual failures to assess risks and/or to implement suitable control measures; and actual failures to supervise, instruct, provide WHS information to, and/or to train workers (including failures to provide an asbestos register to another party, or a failure to notify others of hazards and risks).
   

Pure risk prosecutions are consistent with the notion of primary prevention, and the inchoate nature of the WHS offences, and are a reminder that PCBUs need proactively to eliminate risk, as far as is reasonably practicable, before any harm occurs at work.

^{1. See, for example, Thiess Pty Ltd v Industrial Court of NSW (2010) 78 NSWLR 94; [2010] NSWCA 252, [51]; Boland v Safe is Safe Pty Ltd & Munro [2017] SAIRC 17.}

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