The intersection of OHS and public liability becomes more urgent

In mid-November 2010, a gymnasium in Queensland was fined A$70,000 following the death of a 19-year-old Michelle Maitland.  Ms Maitland fell and hit her head on a part of the floor that was not covered by a safety mat.  The case has been regularly reported in Queensland media since the death in June 2009 and the reports provide additional details of the fall and the hazard control measures that could be considered.

Workplace Health & Safety Queensland was unable to provide SafetyAtWorkBlog with details of the case or comment as the gymnasium has lodged an appeal against the judgement.

This tragic death is the latest illustration of a challenge that businesses and OHS regulators have faced regularly – the line between public liability and occupational health and safety law.   Businesses have applied a rule of thumb where injuries related to work activities are OHS matters but risks presented to customers or visitors who are in the workplace have been dealt with through public liability insurance.  The Maitland case shows that businesses may face an insurance payout as well as an OHS prosecution.

The significance of this demarcation will greatly increase with the introduction in Australia of new laws that redefine a “workplace” as wherever work is being undertaken.  The new laws and the supporting harmonisation process are intended to reduce “red tape” and associated costs but this one definition could negate any cost benefits by an increase in public liability and an increased likelihood of OHS prosecutions.

Indeed, it is this confluence that has led to much of the ridicule faced by OHS regulators in the United Kingdom.  Australian safety regulators need to be anticipating a similar devaluing of OHS and the related “profession” on its shores.  The Maitland case above, although not as frivolous as hanging flower baskets at a railway station, is a warning to Australia that the tide is turning against OHS as it increasingly encroaches into areas that have been handled by different processes in the past.

Discussion on these issues has also occurred when a trespasser to a workplace has been injured.  And what of the increasingly popular pastimes of parkour and freerunning, where high risk activities are undertaken on public and private property, and for which formal training courses are available?

All of the improved community awareness of OHS from years of emotional advertising can be weakened very quickly if OHS is seen to be silly or over-the-top.

This is not to say that the new definition of a workplace is not appropriate.  But if the definition is not introduced carefully to the community, and explained as part of a detailed strategy,  the OHS regulators and governments will have few grounds to complain when public liability risks are being described as health and safety.

The legislative writers and the employment lawyers need to apply a big jump in their critical thinking and start to workshop and case study the application of the new laws and the definitions in the real world and not just as they may apply to the courts.  There needs to be a community education strategy that anticipates the confusion and ridicule of OHS of the United Kingdom because the new definition of a workplace conflicts with decades and generations of understanding.  If the matter is not handled well, the government must prepare for more attacks on the “nanny state” and for the flow-on effects to safety professionals and their capacity to provide sound advice to accepting clients.

Kevin Jones

reservoir, victoria, australia

4 thoughts on “The intersection of OHS and public liability becomes more urgent”

  1. This gym\’s attempt at appeal was dismissed. The governing body has made changes to the industry. Michelle, who was doing nothing wrong, remains dead but she may be the last girl to land on concrete if regulations are complied with.

  2. This gym has been found Guilty of safety breaches and fined $70,000 but still claim it wasn\’t their fault and continue to slander their victim. They are appealing the Industrial Magistrate\’s decision and have silenced their members. This was not a freak accident as simply having the required mats in place would have prevented this girl\’s death. Michelle had not been to gymnastics since she was a child so was only at an adults\’ fun class. May God forgive the people who didn\’t bother to make their gym safe. There is NO compensation from WH&S to the family but they would like to see ALL gymnastics centres cover their concrete floors fully.

  3. Simple! if you are not employed by an organisation or a volunteer working for that organisation, then any accident or incident that occurrs is a public liability incident if it befalls those described whilst in the pursuit of their employed/volunteer endeavors.

    To anticipate any other methodology will only add an horrendous cost to the community that does not need to be there. Every time we complicate things unnecessarily, we provide another means for the world of law and other, to take any capacity for comprehension by the ordinary folk of this world to understand their obligations and rights and act appropriately.

    That old adage \”Ignorance of the law is no excuse\” when mounting a defence, really has no standing anymore as the matters relating to OHSW have become a massive bed of \”quicksand\”. Stupidity in law drafting and subsequent jostling for position by many for the crumbs from the tables of compliance, prevention, compensation etc. etc. is almost sickening to watch, particularly in the light of the failure to have any real impact on injury reduction in the workplace to date.

    The \”nanny state\” is already with us, all you have to do is look at the populist knee jerk reaction of governments of all political persuasions that has become the norm when responding to hysterical incidents such as death in the workplace. These create high profile news stories that may have linkage to the failure of government to protect the workforce through the diligent application of legislation and regulation. The workforce of Australia and other advanced economies deserves better, but given the current standard of amoral, slippery bureaucracies, that is not going to happen anytime soon.

    The workforce of Australia has zero confidence in any so called protection that is offered to them via government in either accident prevention or fair play in workers compensation, if that is not a clear indication of the failure of systems I do not know what is.

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