Accidents in Mines. Who do you sue and what effect does the Work Health and Safety Act 2020 have on such claims?
Introduction
On 31 March 2022 the Work Health and Safety Act 2020 (“the WHS Act”) came into operation repealing the Occupational Safety and Health Act 1984 (“the OSH Act”) and embracing the work health and safety elements involving the mining and petroleum industries.
The Work Health and Safety Act 2020 is based on the national model which has been adopted by all other states and territories save for Victoria.
The WHS Act is supported by three sets of regulations namely:-
- The Work Health and Safety (General) Regulations,
- Work Health and Safety (Mines) Regulations and
- Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations.
The WHL Act is a major evolutionary step in workplace health and safety and has far reaching implications for those persons conducting a business or undertaking in Western Australia. The legislation is also of crucial importance for those pursuing claims arising from industrial accidents.
The purpose of this paper is to provide a general overview as to the differences between the WHS Act and its predecessor and the likely changes the WHS Act will have in formulating claims arising from Industrial Accidents. I have chosen to analyse the operation of the WHS Act with particular reference to mining accidents as the mining industry is the largest driver of the economy in Australia. Secondly, over the last 50 years the mining industry has restructured itself in such a way as to provide that mining operations are conducted through the interrelationship of multiple legal entities. This has given rise to complexity in determining the precise legal relationship between these entities and importantly identifying which entity is the controlling entity in the workplace. A mining accident invariably results in a claim being brought against several defendants who each dispute their respective involvement in the accident asserting that they had no contractual relationship with the plaintiff, or they had no control over the work process giving rise to the accident. This necessarily adds an additional layer of stress to litigation, as plaintiff lawyers attempt to disentangle the complexity of legal relationships and identify the appropriate tortfeasor.
Historical Perspective
To properly understand the purpose of the WHL Act, one needs to look at the development of occupational health and safety legislation from a historical perspective. The introduction of statutes regulating working conditions and occupational health and safety began with the transition to new manufacturing processes during the Industrial Revolution in Great Britain, continental Europe and the United States. The first statute dealing with working conditions was enacted in Great Britain with the Health and Morals of Apprenticeship Act 1802. The legislation was directed at regulating the number of hours that children could work in cotton mills and imposed other working conditions such as adequate accommodation.
As the result of numerous injuries sustained by workers coming into contact with working machinery, The Factories Amendment Act was passed in 1844 to provide for the fencing of factory machinery.
This legislation was later adopted by the State of Victoria in the form of the Factories and Shops Act 1885 and in Western Australia by the Factories Act of 1904 WA.
In 1920, The Factories Act 1904 WA was replaced by the Factories and Shops Act 1920 which also introduced regulations for the opening and closing hours of retail stores.
By the 1970’s, in the United Kingdom there were 9 different pieces of safety and health legislation covering different industries and falling under the control of different regulatory bodies. This gave rise to a statutory review which became known as the Robens Report. The principal recommendations made by Lord Robens were that:-
- The existing statues be consolidated into one unifying piece of legislation,
- Varying standards be replaced by a series of general duties to be imposed upon employers, self-employed persons, employees, manufacturers and importers of toxic substances and manufactures and importers of plant and equipment;
- One administrative body be established for the inspection, compliance and enforcement of the legislation.
Following the tabling of the Robens Report, the Health and Safety at Work Act 1974 (UK) was enacted.
Throughout the 1980’s, all Australian States sought to implement the Robens Recommendations with Western Australia enacting the OSH Act. The Robens Recommendations were never adopted in full, with each of the States tending to go their own way. This resulted in different duties and standards being prescribed and applied throughout Australia.
The National Model Act
It was not until 2008 that a concerted effort was made to establish a uniform approach by a National Review into Occupational Health and Safety Laws.
The National Review was confronted with a workplace which was significantly different from that which prevailed during the times of the Robens Report. Gone were the days of Industry being driven by the full-time employee. The modern workplace was comprised of casual employees, sub-contractors, hired labour and the outsourcing of work and services. The proposers of the Model Act, in order to cover all aspects of workplace health and safety, needed to accommodate all of the players in industry.
The National Model Act was adopted by the Commonwealth, New South Wales, Queensland and both Territories in January 2012.
In Tasmania and South Australia, the National Model Act was adopted in January 2013. Western Australia was as usual a “Johnny Come Lately” and did not implement the National Model Act in the form of the WHS Act until 31 March 2022. Only Victoria is yet to come into the fold.
The principal difference between the OSH Act and the WHS Act is that the primary duty is moved from the employer to a person conducting a business (PCBU). The OSH Act and the duties it imposed were tied to the employment relationship and the traditional workplace whereas the WHS Act now embraces all persons who contribute to the operation of a business or undertaking.
The cornerstone of the WHS Act is the primary duty of care found at paragraph 19 of the WHS Act which provides as follows:-
“19 . Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of —
(a) workers engaged, or caused to be engaged, by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable —
(a) the provision and maintenance of a work environment without risks to health and safety; and
(b) the provision and maintenance of safe plant and structures; and
(c) the provision and maintenance of safe systems of work; and
(d) the safe use, handling and storage of plant, structures and substances; and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
(4) If —
(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and
(b) the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available, the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.
(5) A self-employed person must ensure, so far as is reasonably practicable, the person’s own health and safety while at work.
Note for this subsection:
A self-employed person is also a person conducting a business or undertaking for the purposes of this section.
Note for this section:
Health means physical and psychological health — see section 4.”
To properly construe section 19 of the WHS Act, the meaning of the terms which I have highlighted in red need to be understood.
Who is a person conducting a business or undertaking?
The term is defined by section 5 of the WHS Act as follows:-
“5 . Meaning of person conducting a business or undertaking
(1) For the purposes of this Act, a person conducts a business or undertaking —
(a) whether the person conducts the business or undertaking alone or with others; and
(b) whether or not the business or undertaking is conducted for profit or gain.
(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.
(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.
(4) An individual does not conduct a business or undertaking to the extent that the individual is engaged solely as a worker in, or as an officer of, that business or undertaking.
(5) A local government member does not conduct a business or undertaking.
(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.
(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act.
(8) A strata company that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises.
(9) Subsection (8) does not apply if the strata company engages any worker as an employee.
(10) In this section —
strata company means a body corporate established under the Strata Titles Act 1985 section 14 on registration of a strata titles scheme;
volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.”
Section 5 is very broadly defined and will capture, sole traders, each partner in a partnership, an unincorporated association, a company a Commonwealth or State or Territory Government Department or agency, a person who does not undertake business for profit or gain such as a charitable organisation. The section expressly excludes volunteer associations, strata companies in residential premises and local government members defined as being a councillor of a local government.
Who is a Worker?
The term Worker is defined by section 7 of the WHS Act as follows:-
“7. Meaning of worker
(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as —
(a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor; or
(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer; or
(i) a person of a prescribed class.
(2) For the purposes of this Act, a police officer is —
(a) a worker of WA Police; and
(b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.
(3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking. “
Section 7 of the WHS is broadly defined to encompass all persons engaged in the work process.
Work is not defined by the WHS Act and must therefore be given its ordinary meaning.
To qualify as a worker, the person must carry out work for a PCBU.
The duty imposed upon a PCBU for the benefit of a worker does not require a contractual relationship between the two parties.
Safe Work Australia has provided guideline as to whether an activity is work within the meaning of the WHS Act.
Those guidelines include the following:-
- Does the activity involve physical or mental effort by a person or the application of particular skills for the benefit of another person or the application of particular skills for the benefit of another person or for themselves (if self-employed), whether or not for profit or payment;
- Activities for which the person or other people will ordinarily be paid by someone is likely to be considered to be work;
- Activities that are part of an ongoing process or project may all be work if some of the activities are for remuneration;
- An activity may be more likely to be work where control is exercised over the person carrying out the activity by another person; and
- Formal, structured or complex arrangements may be more likely to be considered to be work than ad hoc or unorganised activities.
See Safe Work Australia, The meaning of ‘person conducting a business or undertaking’.
What is a Workplace?
Section 8 of the WHS Act defines workplace as follows:-
“8. Meaning of workplace
(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
(2) In this section —
place includes —
(a) a vehicle, vessel, aircraft or other mobile structure; and
(b) any waters and any installation on land, on the bed of any waters or floating on any waters.”
Section 8 of the WHS Act is broadly defined and ensures that workers are protected in any work-related activity wherever this may occur.
Who are the other persons to whom a PCBU owes a duty?
Construing section 19(2) of the WHS Act, giving the wording of the legislation its natural and ordinary meaning, other persons must mean persons who are not PCBUs or workers. Therefore, other persons must be third parties who are placed at risk through the conduct of the business. On can envisage that the section will apply to patrons visiting retail outlets or suppliers delivering goods and services to a PCBU.
What is Reasonably Practicable?
Section 18 of the WHS Act defines reasonably practicable as follows:-
“18 . What is reasonably practicable in ensuring health and safety
In this Act —
reasonably practicable , in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including —
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about —
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk;
and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. “
The WHS Act also imposes specific duties on other involved in the work process.
Section 20 of the WHS Act imposes a duty on those involved in the management of control of a workplace.
Section 21 of the WHS Act imposes a duty on those involved in the management or control of fixtures, fittings or plant at a workplace.
Section 22 of the WHS Act imposes a duties on designers of plant, structures or substances. The duty includes a duty to test to ensure that the product meets work health and safety requirements and a duty to adequately inform users of the product.
Section 23 of the WHS Act imposes duties on manufacturers of plant, structures and substances. The duty also incudes a duty to test the product and adequately inform users to ensure that the product meets work health and safety requirements.
Section 24 of the WHS Act imposes duties on importers of plant substances or structures. The duty also includes a duty to test the product and adequately inform users to ensure that the product meets work health and safety requirements.
Section 24 of the WHS Act imposes duties on suppliers of plant substances or structures. The duty also includes a duty to test the product and adequately inform users to ensure that the product meets work health and safety requirements.
Section 26 of the WHS Act imposes duties on those installing, constructing or commissioning plant or structures.
Section 26A of the WHS Act imposes a duty on those providing services relating to work health and safety.
Section 27 of the WHS Act imposes a duty on officers of corporations and other organisation.
Section 28 of the WHS Act imposes a duty on workers.
Section 29 of the WHS Act imposes a duty on customers and visitors.
The Primary Duty of Care and the specific duties are underpinned by reasonable practicability in ensuring health and safety.
The statutory definition as to what is reasonably practical, bears an uncanny resemblance to the Common Law Shirt calculus. Although the tests is objective, it provides that the statutory duties do not provide for strict liability in that to determine what is “reasonably practical” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.
What effect does the WHS Act have on pursuing civil claims?
For those practitioners familiar with prosecting common law claims for plaintiffs injured in industrial accidents, the OSH Act was helpful in deeming persons who secured labour outside of a contract of employment with the same non-delegable duty of care as an employer. (see sections 23D, 23E and 23F of the OSH Act.). The allegation of duties imposed by the OSH Act would usually be met by the Defendants’ insurers denying that duties imposed by statute gave rise to a private cause of action. The insurers would rely on the High Court authority of Leighton Contractors Pty Ltd and Brian Allan Fox and Ors; Calliden Insurance Limited v Fox [2009] HCA 35 in support of this contention. A careful analysis of Leighton Contractors Pty Ltd, revels that no breach of statutory duty was pleaded because section 32(1) of the Occupational Health and Safety Act 2000 (NSW) provided that contraventions of the duty provisions did not confer a right of action in any civil proceedings. As the OSH Act provided no similar prohibition, the issue has not fall for determination by the Courts in Western Australia.
The WHS Act does contain a perplexing provision concerning the affect of the WHS Act on Civil Liability claims. Section 267 of the WHS Act provides as follows:-
“267 . Civil liability not affected by this Act
Except as provided in Part 6, nothing in this Act is to be construed as —
(a) conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act; or
(b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or
(c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be brought, in relation to breaches of duties or obligations imposed by the regulations.”
The construction of an identically worded provision in the Work Health and Safety Act 2011 (ACT) fell for consideration in the recent case of Robertson v Icon Distribution Investments Limited and Jemena Netweoks (ACT) Pty Ltd trading as ActewAGL Distribution [2020] ACTSC.
In this case, the plaintiff brought an action in damages for three separate injuries he sustained during the course of his employment as an electrician with the defendant. The plaintiff alleged negligence and breach of statutory duty in relation to each injury. In the final injury, the plaintiff alleged that he suffered an injury to his left hip whilst adopting an awkward posture on top of a large switchboard. The plaintiff alleged that the defendant had breached its duty of care to him in failing to implement a system of work which avoided the need to adopt an awkward posture to access the interior of the switch board. In particular, the defendant failed to provide a scissor lift to provide the plaintiff with safe access to his work. The plaintiff in alleging breaches of statutory duty relied on ss 34, 35, 36 and 60 of the WHS Regulations in claiming that the defendant failed to identify, minimize, and manage the risk of musculoskeletal disorder arising from the hazardous manual task of the plaintiff trying to fit busbars and the like from the top of the switchboard. The court found that the defendant was negligent in failing to implement a safe system of work, but in the event that he was wrong in his analysis of liability, he went on to consider statutory breaches imposed by the WHS Regulations and the operation of s 267 of the WHS Act (ACT). The court went on to find that the Defendant was in breach of the WHS Regulations and that s 267 of the WHS Act (ACT) did not prevent the plaintiff from pursuing his claims for statutory breaches. Although, the application of s 267 of the WHS (ACT) was obiter dictum, in not being essential to the court’s determination, the observations of the court are nevertheless instructive. The court attached weight to earlier decisions of Acir v Frosster Pty Ltd [2009] VSC 454 and Govic v Boral Australia Gypsum ltd [2015] VSCA 130 where the Victorian court had interpreted a similarly worded provision as preserving an injured person’s private right of action for a breach of regulatory duties.
Concluding Comments
The WHS Act, in imposing the primary duty of care on a person conducting a business or undertaking as opposed to an employer, has the hallmarks of a radical change in health and safety legislation which would assist persons injured in the workplace in prosecuting their claims. However, if one has regard to the changes that have occurred as to how work is performed and by whom it is performed, it can be seen that the WHS Act has been drafted to ensure that all stakeholders in the work process take responsibility for the part that they play in the process. It should be noted that the duties imposed upon each stakeholder in the process are concurrent duties and can not be transferred to other persons. (see ss 14 and 16)
Furthermore if a stakeholder occupies multiple roles, the stakeholder may acquire multiple duties.
After all, the first stated object of the WHS Act as detailed in s 3 of the WHS Act is:-
“protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work”.
From the limited number of civil cases applying the National Model Act, it would appear that the courts are willing to embrace the provisions of the legislation to assist plaintiffs in prosecuting their claims for compensation.
However, as I have attempted to show in this paper, the WHS Act raises several statutory construction issues which no doubt will provide challenges to litigation lawyers as they navigate their way through the legislation.
Raoul Cywicki
Barrister-At-Law
Sir Clifford Grant Chambers
16 March 2023