Important OHS and legal issues in findings of South Australian Coroner into young man’s death

The debate on OHS laws will be passionate in the pre-election frenzy of New South Wales but the OHS law reform is a national strategy and the safety debate is not asleep in the other States.

On 11 February 2011, AAP ran an article about the long-lasting familial and social effects a horrible workplace incident in South Australia in 2004.  Diemould Tooling Services (fined in 2009) took its appeal against prosecution to the High Court of Australia in 2008 and on 10 February 2011, almost six years after the death of 18-year-old Daniel Madeley, South Australian Coroner Mark Johns has said, at Madeley’s inquest:

“A horizontal boring machine had been operated at Diemould for years in a condition which could only be described as deplorably unsafe. It could have been guarded, but was not. It could have had a braking system, but did not. It could have had an automated lubrication system, but did not.

“Many other things could have been done, but any one of these would have been sufficient to save Mr Madeley’s life….”

Coroner Johns was very critical of SafeWorkSA about its actions following the 2004 death.  The coroner’s findings make for disturbing reading on several issues.

Overseas Machinery

“The horizontal boring machine by which Mr Madeley was entangled was an old machine that was probably built between 1960 and 1970.  It was manufactured in the USSR as it was then known, probably in Russia.  The machine had no guarding or other safety devices that might have prevented the occurrence of an event such as that which took Mr Madeley’s life.  Indeed, the only safety device incorporated into the machine, if one could describe it as a safety device, was the ‘emergency stop’ button.  The emergency stop button did not operate any differently from the ordinary stop button on the machine.  Its only distinguishing feature was that it was a larger, more obvious button than the ordinary stop button.”

The situation the coroner describes above is very common.  Only recently a caller described how he was unable to use a $A120k boiler that he imported from Germany because the certificates it came with were for a size of boiler much smaller than was purchased.  There were dozens of electrical issues with the machine and the owner of the machine did not know where to turn to for help.

The importation of plant to Australia is a continuous problem for companies and will not change unless there is a national strategy to inspect imported plant before its local use.  One has to wonder why dangerous equipment is allowed into Australia.  It is clearly not enough, on the matter of plant, to place the full responsibility on the employer.  Victoria’s OHS laws on plant changed in 1995 and removed the specialist inspectors of boilers, pressure vessels and a range of other equipment.  Unguarded and sub-standard plant, and the injuries and deaths that result, is the legacy of that decision.

Evidence

The coroner was particularly critical of the evidence provided by several Diemould employees and witnesses.  Coroner Johns says some of the evidence was to “curry favour” with the management and was dishonest and “less than frank”.  He was particularly critical of a Mr Remfrey who is a toolmaker and who continues to be employed by Diemould, as the example below shows:

“I find that Mr Remfrey was keen to present himself in a manner that would curry favour with the management of Diemould.  In that endeavour his evidence to the Court was less than frank.  When he was questioned as to whether there was anyone from Diemould present in the body of the Court at Transcript, page 102, he answered, initially, ‘no’.  He then sought to obtain further information from the Court to qualify his answer: ‘that is employed at Diemould?’.  When the Court responded in the affirmative, he answered that there was no-one from Diemould present.  Thus, his final answer was technically accurate in that there was no person presently employed by Diemould present in the Court.

However, he was well aware of the fact that the Managing Director’s wife, who was intimately involved in the affairs of the company (having been present at the meeting of all of the witnesses only two or three weeks prior), and who had previously been an employee of Diemould, was in fact present in the body of the Court.  His initial response to the question was to deny that there was anyone from Diemould in the body of the Court and, in my opinion, his initial response was one of dishonesty.  However, he corrected himself by employing the device of seeking to clarify whether the question was directed at any employee of Diemould.

Having received an affirmative response from the Court he proceeded to deny that there was an employee present. I n my view this shows a reluctance to be cooperative with the Court and a desire to assist Diemould.”

The Coroner also stated that

“As a result of the way in which the evidence unfolded, I formed a preliminary view that certain of the Diemould witness, in particular Mr Remfrey, Mr Chalil, Mr Welling and Mr Shaw, were guarded in some of their responses to the Court. When it became apparent that there had been a meeting of those witnesses and a number of other witnesses, I was concerned that there may have been coaching or other inappropriate influences brought to bear upon prospective witnesses.”

He felt that coaching had not occurred but the conduct of Diemould employees and witnesses cast a pall over the proceedings that the coroner was determined to counter.  The coroner states clearly that nothing improper occurred at a meeting prior to the inquest but it created an unnecessary complexity.

“…it was unwise on the part of all concerned to have held such a meeting of all potential witnesses immediately prior to the Inquest, gathered all together in one place, particularly the premises at Diemould, to discuss the Inquest.”
For those who advocate on the importance of a safety culture, Coroner Johns illustrated that a company can have a negative culture:
“In my opinion, that attitude [of hesitation and reluctance] is more likely to have grown out of a culture that I find was prevalent at Diemould in the period up to 2004 and following.
A culture that was led by Mr Neville Grose, the then Managing Director of Diemould.”

SafeWorkSA

Further to the culture references above, the coroner discusses the continuation of the business and the change in management at Diemould following Mr Grose’s death around 2004.  There was a cultural legacy of animosity towards SafeWorkSA and its inspectors.  One inspector was reportedly described as “an aggressive bitch”.

Coroner Johns is very critical that SafeWorkSA seemed to leave the primary responsibility for occupational health and safety with the employer yet this is the legislative situation in many Australian States.  Indeed the new draft Work Health and Safety laws broaden the employers’ role to that of persons in control of the business or undertaking but the duty of care remains the same.

Division 2 Section 19 says

“Primary duty of care

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.”

The coroner implies that the lack of inspections to South Australian workplaces by SafeWorkSA was of relevance:

“A regime of proper inspection by SafeWork SA and the issuing of improvement notices and prohibition notices might, if conducted prior to June 2004, have identified such an obviously unsafe machine as the horizontal borer and prevented its further use until it was rectified.”

This seems to be very unfair.  All OHS regulators are restricted in the level of inspection resources they are funded for by government and the duty for a safe workplace resides with the employer.

Indeed some of the comments of the coroner question a core element of Australian OHS law and enforcement:

“In my opinion, the system of leaving industrial safety compliance to employers and then simply prosecuting them once an employee is fatally injured, is inadequate and insufficient.   A rigorous system of inspection and a full use of the range of improvement notices and prohibition notices would be a far more effective way of preventing accidents such as Mr Madeley’s.”

Safe Work Australia and governments may need to forensically analyse Coroner Johns’ findings  for maybe the legislation is heading in the wrong direction.

The coroner has a stronger argument when asking about the delay for an inspection blitz on similar machinery.  Regardless of a blitz finally occurring in the same month that the coronial inquest began, it is a fair question to ask, why did an inspection campaign into similar machines to one that had resulted in a workplace fatality take almost 6 years to occur?

And what of justice

This article began with an AAP article about a mother’s grief.  The coronial findings similarly address the impact of industrial incidents on families.  The coroner suggests:

“…that the Government consider a major reform of the current system of criminal prosecution for fatal industrial accidents. In my opinion it is just wrong that the prosecution of Diemould took 5 years to arrive at a plea of guilty.  There must be a way to improve that.  It seems to me that the family of a person killed in a workplace accident may be better served by seeing an open public inquiry convened within 12 to 18 months of the accident, than a criminal prosecution which might never result in the public hearing of any evidence, and which takes more than three times that long to even start.”

There is much in Coroner Johns’ finding to consider both in law, justice and the administration of OHS.

Kevin Jones

11 thoughts on “Important OHS and legal issues in findings of South Australian Coroner into young man’s death”

  1. @ ohs audits – I think to suggest the young workers ignore or don\’t take seriously safety rules is a very narrow view of what happens out there. Based on my experiences, sitting in quite a few court rooms now here in SA – listening to defence arguments, that is the standard line most will take. Problem of course is, dead people do not have a voice. Thank God I was able to speak on behalf of Daniel.

    I can tell you that this was precisely the defence argument in the Diemould matter whilst this went through the Industrial Courts. In fact even throughout this inquest, several key management commented that the Borer was quite safe as long as it was used for its intended purpose. If you read the VOID website on the inquest, you will see what some of these comments entailed. Arrogant does not even begin to describe these attitudes.

    And FWIW – SafeWork SA were bone lazy in following up on this matter – the department did not suddenly instigate an audit on borers because the inquest was running. I personally contacted Bryan Russell and asked him to follow up on the evidence of one of the witnesses that suggested there were many of these machines out there operating in the same manner. I notified Mr Russell about this in mid May by email and follow up calls.

    I\’m sorry, resources have little to do with it – efficiency and reasonable response times is what is needed here. VOID is not funded at all – zero resources and I believe we have made more impact of worker\’s safety than the department charged with that duty.

    I wish this was the only matter we have highlighted these inefficiencies but it is not.

  2. I would like to add that sometimes the workers do not pay attention to the health and safety guidelines provided by the employer and therefore get injured. Also they follow them when they know that there will be an inspection, o that they don’t get into trouble for not following the standard guidelines. What do you think of these kinds of situations? Do you think that by having more resourced inspectorate would reduce the number of non-adherence to the standards that are already in place? I think you have to educate the workers properly about the importance of health and safety and how it affects not only them, but their co-workers and the families as well. We can start some safety educational sessions among school kids, because it’s easy to educate them when they are young and there is a higher chance of them following the safety rules when they start to work.

  3. There are many needless deaths every day in the workplace. It is often the case that those who suffer come from the group of people who do not believe in the benefits of managing health and safety.

    It is my mission to educate. To convince those who would likely do themselves harm before they realise their fate. We cannot wait for the authorities; they will never be effectively funded.

    We can either complain about the status quo or use our energy on a solution. I know that I’m done banging my head on the immovable object.

    1. Lee, I am very interested in your statement \”…those who suffer come from the group of people who do not believe in the benefits of managing health and safety\”

      If you have time, it would be terrific if you could elaborate on this group.

      Kevin

  4. Kevin, I thought I gave a reasonable argument as to how the inspectorate could be funded.

    The matter of responsibility for OHS matters being devolved to employers and safety committees was farcical and totally counter productive . An Act was introduced to create law in respect of OHS and there were standards that were to be met and if those standards were not met there were penalties to be applied and this is the responsibility of the regulator.

    I am not much concerned about \”fairness\” to the regulator what I am concerned about is the competence of the regulator to be proactive in the manner I have suggested, a direct method aimed at \”forcing\” the employer to comply to the letter of the law. It is only then that we will start to see significant reductions in all types of work place injuries.

    Sure we will hear all the usual employer gripes about costs which is nothing new, but they will all be subject to the same requirements so the cost argument doesn\’t wash.

    The PCBU matter is just shifting the deck chairs on the good ship
    \”OHS Demise\” like putting a cat in charge of the worker mice.

    Absolute accountability and responsibility should be the bench mark. Hard line I know but nothing less is going to get the job done.

  5. This is a sad but important case. It highlights several flaws in our current systems.
    5 years for a prosecution and 6 years for Safework SA to do someething about it is just plain wrong.
    Conducting an inquiry shortly after a major incident such as this means that companies could get away with murder – literally. Once again, I believe it is wrong in my opinion.
    There are many companies that are still, to this day, not overly concerned about safety. Somebody needs to be made accountable and ultimately responsible when this kind of attitude raises its ugly head. Penalties need to reflect the seriousness of the situation when a case such as this one arises.

    1. David, I think the penalty was reasonable at the time and note that penalties will be substantially increased under the new national Work Health & Safety Act.

      The coroner\’s findings note that the penalty given by WorkSafe was the equivalent of a third of the cost of a replacement machine. It discusses the possibility (before dismissing this) that a different company could have weighed up the cost of a new machine compared to copping a fine, and taken the cheaper option. This cost/benefit approach is one that we should all look out for in the future.

      I think that newly proposed penalties are more in line with community expectations but these are still not a reality in most States and retrofitting the new penalties to old situations simply leads to anger and frustration.

  6. I have written on the subject of the Blog on many occasions and I reaffirm my thoughts. The only way we will ever see a positive increase in safety in the work place and subsequent injury reduction, is for a properly resourced inspectorate with significant powers, including the issuing of expiation notices and an enhanced Industrial court to hear matters in short order.

    For every work place fatality there are thousands of work place injuries which in the main, are the caused by employer non compliance in removing hazards which they ought to have identified and resolved. The \”reasonably practical\” argument that may be put forward by an employer should automatically be tested in an Industrial Court when serious injury is reported, with significant penalties if it is found the argument does not stand up to scrutiny.

    The following excerpt from the Coroners report is very telling.

    “In my opinion, the system of leaving industrial safety compliance to employers and then simply prosecuting them once an employee is fatally injured, is inadequate and insufficient. A rigorous system of inspection and a full use of the range of improvement notices and prohibition notices would be a far more effective way of preventing accidents such as Mr Madeley’s.”

    Occupational Health law has been in place in a comprehensive manner for some 25 years and there is no excuse for any employer not to understand their obligations and responsibilities, the same as there is no excuse for government not to pursue the prosecution of non compliance with extreme vigour. The excuse of not being able to fund the inspectorate is nonsense as the expiation fees would more than cover that cost and the opportunity to educate by a far more proactive inspectorate would also have a positive effect, that is not to say that expiation fees should be waived by an inspector under any circumstances that is for the Industrial Court alone to decide in my scenario.

    The woeful performance of Safework SA in this issue is pretty much their standard mode of operation and it also seems to fit with many of the \”hand wringers\” who prefer to shy away from positive, proactive action to make work safe for employees. While it is important for us to review statistics, develop policy, brain storm strategy and provide education to assist in injury reduction, all of that is seen as woefully inadequate if it is not shown to reduce injury in the work place. Injuries are increasing not decreasing and the so called \”unfunded liability\” of our schemes keep rising.

    It is an unfortunate fact of life that people will be injured at work and there are fatalities, but our job is to minimise these risks as much as we can and to date, collectively, we do not seem to be doing a very good job, it is time to get very aggressive if we wish to see the statistics move in the right direction.

    1. Tony, OHS regulators only have the size of inspectorate that their funding allows. In some ways the regulators are doing the best the can with the resources available.

      This problem was intended to be addressed by the Robens OHS reforms in the 1970s and 1980s were the inspectorate role was \”devolved\” to employers and health and safety representatives. In many industries now you would be lucky to find any HSR. This change should have resulted in an increased enforcement by the employer or an acknowledgement that safety needs to be picked up by someone within the organisation. it didn\’t happ0en and safety enforcement seems to have declined.

      Given this scenario, I am not sure it is fair to expect the OHS regulator to pick up the slack of the disappearing HSRs. Like you, I think that there should have been some elements of workplace safety that continued to be regulated, inspected and \”signed off\” by the OHS regulators but all the indications from the national changes are that MORE responsibility for safety will be resting with the PCBU – persons in control of the busienss or undertaking. Do you have any suggestions on how we can make the best of the current situation? Can you see any way of increasing inspection within the developing political climate?

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