$450,000: Is this what we want from prosecutions?

Great article by Health and Safety Lawyer Greg Smith recently published here on his blog: My Safety Thoughts. Look out for Greg’s new book, co-authored with Dr Rob Long: “Risky Conversations, The Law, Social Psychology and Risk” – I’ve had a sneak preview and it is an absolute cracker!

$450,000: Is this what we want from prosecutions?

by Greg Smith

I have written on the topic of safety prosecutions before (Do we need to rethink safety prosecutions?, Rethinking safety prosecutions part 2 and Is this really what due diligence was designed for?), and a recent article posted online by the Safety Institute of Australia Ltd (VIC: Company fined $450,000 after teenager dies in forklift rollover) has prompted me to write on the topic again, and ask the safety industry to really question what it expects from health and safety prosecutions, and whether the current system delivers against those expectations.

In brief, the prosecution arose out of a fatality on a  farm in Victoria.

The owner of a labour hire company, who was engaged to provide workers to pick snow peas on the farm, bought his 15-year-old son and two friends, aged 16 and 17 to help with the work. The owner left the property and soon after the boys began driving a forklift, which had been left unattended and with keys in the ignition, in an unsafe manner. The driving was described as driving fast around corners, skidding and drifting and not wearing seat belt.

Several hours later the owner’s son was killed driving the forklift when it tipped over.

The boys, who had been left  unsupervised, had not been provided with any safety induction or instructions at all, none of them were licensed to drive a forklift and two of them had no prior experience working on a farm.

The farming company was prosecuted for failing to ensure a safe workplace and pleaded guilty. They were fined $450,000

At this point, it is appropriate that I add a little bit of information about myself. I am a lawyer, so I have a vested interest in the prosecution process. I am a farmer’s son and have engaged in exactly the type of activity that led to the fatality – and worse. I have a son, and continually walk a fine line between introducing him to more and more responsibility and keeping him safe. I work in the safety industry and have spent the last 25 years of my working career trying to help organisations improve safety in their workplaces.

I should also say at this point that on the face of the summary of the case, there was an abject failure by a number of parties to properly consider and implement processes to manage health and safety risks in the workplace. A failure which, in my view, required a response.

My question is whether the “prosecution” response does anything for safety.

The legal profession talks about the penalties in legal proceedings in terms of general and specific deterrence. The idea that a penalty is designed to stop the individual or organisation from offending again, as well as sending a message to the broader community about refraining from unlawful conduct.

Even from a narrow, legalistic perspective, it is difficult to see how this type of prosecution is helpful.

While I am sure that a $450,000 fine had a reasonable punitive effect, I am not sure how much of a specific deterrent it was, over and above the death of a 15 year old boy. And I am certain that there are more productive ways to invest $450,000 in safety than injecting it into the Victorian Government coffers.

A $450,000 education campaign? Creating some dedicated “farm safety” inspectors?

Let’s get creative.

If all we want from safety prosecutions is to punish people and organisations who do not meet their legal obligations, then the current approach and increasing fines is probably appropriate.

But every safety conference I attend has regulators and consultants spruiking that we must learn from incidents and the only way to move safety forward is with a “no blame” culture, both of which are completely undermined by a system focused on prosecutions.

The fatality occurred in November 2014. The findings from the Court, the Wangaratta County Court did not emerge until April 2016. There is no written judgement, only press article summaries and media releases from the regulator.

the case is about proving the particulars of the charge. It is not about improving safety or making recommendations to address safety shortfalls.

And what did we learn? That teenage boys should not be left to drive forklifts unsupervised because they might do something silly? That people need to be told about hazards in the workplace? That access to equipment and machinery should be controlled?

Really?

What did we need to learn?

We need to understand why organisations like the farming company and the labour hire company had no systems in place to manage obvious risks.

How is it, that despite all of the regulators and all of the regulation, most organisations do not have anything remotely resembling a reasonable safety management process?

What if, rather than prosecutions, organisations who have had accidents could opt in to a safety learning program. In this case, for example, a detailed investigation and research project to understand all of the factors influencing the incident. Not just the role of the employers and workers, but also the regulator, the way safety information is made available and the best ways to help small and medium sized businesses implement a safety program.

• The project would be paid for by the employer – so there is still a financial penalty.
• Both the incident and the research could be highly publicised to add to the deterrent value.
• Valuable lessons would be available within months, as opposed to meaningless factual statements after years.

Prosecutions can, and should still be reserved for the worst classes of offence but these would be very limited.

This is different from the current enforceable undertakings approach, because it is not designed to respond to the incident per se, but to understand the incident and create wider learnings.

And just a word on regulators – every major accident inquiry in recent times (think, Pike River, Montara, Macondo) has found serious failings in the performance of the regulator in the discharge of their duties.

What, if anything have we learned about the regulation and enforcement of safety in this case?

So, returning to my initial question: What do we it expect from health and safety prosecutions, and does the current system delivers against those expectations?