“..if I call out a tradesperson to do some work at my home, my home is their workplace and I would be a person at their workplace. As such, I would have a duty to take reasonable care for my own safety and the safety of others and to cooperate with their reasonable instructions in my own home. If I breach that duty I could be liable for a criminal offence.”
At that time SafetyAtWorkBlog was skeptical as it was hard to believe that this likelihood, or regulatory loophole, would be allowed to continue. It seems that a decision in the New South Wales District Court on 4 March 2010 has provided Tooma with a case that supports his decision.
According to a podcast on the ABC Radio program AM:
“… electrician Allan Harley was working on a terrace house in Sydney’s inner-west in 2004, when he came into contact with a live wire and was electrocuted.
The New South Wales District Court last week ordered the owner of the home to pay Mr Harley’s widow $70,000 in compensation.
The judge deemed the owner was aware or ought to have been aware that the live wire had been left exposed when a hot water system was removed years earlier.”
The case, also reported in the Sydney Morning Herald, did not relate to occupational health and safety legislation directly. The judgement relied on the Civil Liability Act 2002 and
Electrical Safety (Electrical Installations) Regulations 1998, primarily. Tooma makes the link to the new OHS legislation and is able to capitalise on the increased sensitivities of workers in domestic premises after the deaths of four insulation installers over the last 12 months.
Tooma’s interpretation of the application of the Work Health and Safety Act seems valid and it is the practical application of the legislation that should have received more attention through the submission process. Tooma’s reiteration of his interpretation has not been refuted by anyone to our knowledge but nor has it been embraced by the regulators. It demands consideration as it could be a substantial impediment to the acceptance of the national model Act at State level and could be a trigger for State-based amendments which would cut across the harmonisation plan.