In October 2009, Australian lawyer, Michael Tooma gained considerable media coverage by stating that under the model Work Health and Safety Act:
“..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.
Graeme
Many thanks. I appreciate being reminded of \”control\”.
Kevin
With respect I think Michael Tooma is overstating the case.
First, the case in question was a civil case where the duty of care is based on the civil standard and the burden of proof is the civil burden of balance of probabilitis – not beyond reasonable doubt.
Secondly while courts are reluctant to acknowledge the role of insurance, this is probably a case where the householder\’s standard house insurance policy with its public liability component (usually around $20 million in cover) applied. So the court was faced with a widow versus an insurance company – not Mr and Mrs Smith average householder. Courts will never expressly acknowledge that this is a consideration, in fact it will be denied, but it is a fact of human nature that this can be an influencing factor in a determination.
Third, there is a strong and authoritative line of OHS cases developing around the question of \”control\” relating to the employment of contractors. That control issue is not only the power to direct, but questions of expertise come into it. So if I am Joe Bloggs with NO knowledge about electrical safety issues, or an invalid pensioner who has never been near my roof space etc, and I retain an experienced and appropriately qualified tradesman, then it is unlikely I will ever be considered for, let alone charged, in the event of an OHS incident. If I am charged it is unlikely I would be convicted.
Fourth, the government has no control over the institution of civil claims for damages as in the case referred to by Michael Tooma. However, Government agencies with published prosecution policies which articulate the criteria considered for a prosecution (and a case such as the example cited would – absent any special factors such as Joe Bloggs being an electrician or having been personally and knowingly or grossly negilgently involved in the creation of the hazard – not meet the criteria) DO control and act as gatekeepers on prosecutions. As a practical matter it would be political suicide to prosecute the Joe Bloggs householder in such cases and would very quickly lead to an unravelling of public support for OHS law and make the High Court\’s recent decision in Kirk\’s case (and its strident criticism of the unfairness of NSW WorkCover\’s approach to OHS prosecutions) look mild in comparison.
While Michael\’s comments represent a possibility, in practice I think the prospect of such prosecutions is zero – just as such a householder could also in theory be charged under the Criminal Code/Act with manslaughter and face up to 20 years imprisonment – and that theoretical possibility is there now and has been so for many years.
There is a risk that Michael\’s \”warning\” to people who have had insulation installed recently saying \”you would want to go back and have another look at the work that has been done and make sure that your home is safe\” could itself create a hazard. We do not want untrained householders, who don\’t understand the risks, nor know what they are looking for, climbing into their roof to see if it is safe. How would they know?
Those with concerns should use the government funded audit/safety check. If they are engaging a tradesman before any such audit takes place they should make full disclosure and the tradesman can then take appropriate and informed checks before entering any potentially hazardous roof space.