By Michael Selinger
Potential litigants should take note of a recent decision in the NSW District Court in which SafeWork NSW prosecutors were ordered to rectify their deficient pleadings because they did not identify the case the defendant was required to meet.
In SafeWork NSW v Neville George Hetherington (2019), SafeWork’s pleadings against the officer of a company were found to be substantially similar to SafeWork’s pleadings against the officer’s company in a concurrent trial.
The wording of SafeWork’s pleadings in both proceedings dealt with the duty owed by a PCBU and did not expressly engage with the different duty owed by the officer of a company as framed under the Work Health Safety Act.
The District Court did not share SafeWork’s opinion that the duties owed by a PCBU are sufficiently similar to the duties owed by an officer.
As a result of this, SafeWork was ordered to present new particulars – at a later date – identifying the specific details of the officer’s breach of duty.
In the interest of procedural fairness, the safety regulator was required to rectify their pleadings to ensure the particulars were relevant and disclosed an offence known to the law.
Mr. Hetherington was an officer of HPS, a company repairing the roof of a building in Corowa.
Mr. Wilkinson was engaged as a dogman to help assist HPS in completing these repairs. He performed these repairs on the roof whilst wearing an unsecured safety harness and fell 6 metres suffering serious injuries. He was also uninformed that there were any unsafe areas on the roof.
SafeWork NSW initiated proceedings against both HPS and Mr. Hetherington for failing to comply with their health and safety duties and exposing Mr. Wilkinson to a risk of death or serious injury or illness.
In one trial HPS was charged with failing to comply with its health and safety duty as a PCBU and in a separate trial Mr. Hetherington was charged with failing to comply with his health and safety duty as an officer of HPS.
Mr. Hetherington sought to stay the prosecution’s charges against him by stating the particulars of the pleadings against himself were the same particulars against HPS and were an abuse of process.
He argued the duty he owed to Mr. Wilkinson was different to the duty owed by HPS to Mr. Wilkinson.
As the prosecution’s particulars were based only on the duty owed by a PCBU, the particulars of the pleadings were different to the standard required by an officer of a company.
The prosecution submitted that their particulars were capable of satisfying the statutory requirements for a breach of duty by an officer. However Mr. Hetherington argued these particulars were irrelevant as they did not disclose an offence by an officer known to the law.
In his judgment, District Court Judge Scotting explained the difference between the duty owed by an officer and the duty owed by a PCBU under the legislation.
Judge Scotting recognised that the prosecution’s pleadings based their claims of breach on Mr. Hetherington’s failure to take all reasonable steps to ensure the PCBU’s compliance.
However, he confirmed this is not what is required under Mr. Hetheringon’s duty as an officer.
Instead officers are required to exercise due diligence to ensure the PCBU complies with its duty.
Due diligence means taking reasonable steps for:
- Acquiring and keeping up to date knowledge of WHS matters.
- Understanding the nature of the business’soperations, and the associated hazards and risks.
- Ensuring the business uses appropriate resourcesand processes to minimise risk.
- Ensuring the business has an effective riskmanagement process in place.
- Ensuring the business has processes for complyingwith its health and safety duties.
- Verifying the provision and use of resources andprocesses for the previous five steps.
By simply restating in their pleadings the failure by the PCBU as failures by Mr. Hetherington, the court held that the prosecution did not identify the reasonable steps required by Mr. Hetherington to discharge the duty of due diligence.
For example, one of the particulars implied that Mr. Hetherington should have personally ensured Mr. Wilkinson was using a fall arrest system.
However, the pleading did not state how he could have taken this step or how this related to due diligence.
This breached a fundamental requirement identified by the High Court in the decision of Kirk v Industrial Court of New South Wales (2010) by which the prosecution must identify the measures that should have been taken and prove them beyond reasonable doubt.
Despite this finding, Judge Scotting was prepared to measure these defects against the merits of the case.
As only two out of the six pleadings were found to be deficient, Mr. Hetherington was unsuccessful in his attempt to have the charges stayed.
Judge Scotting was satisfied no injustice would be caused if the original summons were amended, ordering the Prosecution to file an amended summons at a later date.
This decision should not be seen as a complete defence for officers prosecuted by a safety regulator, however it reinforces that an officer can only be prosecuted for a breach of due diligence. This decision should be seen as a reminder of the importance of understanding the scope of the duty of due diligence and the steps required to discharge that duty.