In January 2011 WorkSafe indicated its intention to prosecute the Department of Corrective Services and others in relation to death of Mr Ward. A $A285,000 penalty was imposed on 7 July 2011.
SafetyAtWorkBlog reported on the WorkSafe actions at the time but an excellent clearinghouse for information on this case is the website of the Australian Broadcasting Corporation’s Four Corners program which examined the 2008 death of Mr Ward in Western Australia.
The Four Corners website has a considerable amount of background information on the case, including the coroner’s findings, which some readers may find confronting and, as the ABC says “This report contains images of the deceased which may disturb Aboriginal viewers”.
Mr Ward was being transported to Perth in the rear of a prison transport vehicle following a traffic offence. The vehicle’s air-conditioning system was not operating, the temperature within the rear of the vehicle increased so much in the Western Australian heat that, according to one commentator, Mr Ward was “cooked”. When Mr Ward’s body was being removed from the prison van at the hospital “the air from the van was “…like a blast from a furnace”” according to one witness. The coroner found that “no effective air-conditioning was being supplied to the rear pod of the vehicle.”
There are many management issues involved with this unnecessary death but some will be familiar. The coroner reported (page 131) that
“…many of the problems highlighted by this case had already been identified by the previous Inspector of Custodial Services who in unambiguous language had stressed the need for urgent action to take place for safety reasons. Also as discussed earlier in these reasons, it is clear that the recommendations and observations of the Inspector were not acted upon in a timely manner and this failure to act resulted in the circumstances which contributed to the death.” [emphasis added]
A WorkSafeWA media release (not yet available online) identifies some of the OHS and management issues:
“The Department had control over the workplace (the van in which Mr Ward died), and it was alleged that the Department failed to install a temperature monitor in the rear of the van.
In addition, it was alleged that the Department did not ensure that the contractor (G4S Custodial Services Pty Ltd) had safe systems of work in place for the transportation of persons in custody.”
Inadequate contractor management is a major OHS challenge in all business relationships. Regardless of who the contractor is, every contract must start with a total mistrust of the contractor.
Previous experience is relevant but every contract must be reviewed as if the relationship is being established for the first time. The contractor must demonstrate that they can be trusted to fulfil the contract and to fulfil it safely.
That G4S is a company of international standing specialising in security services is irrelevant. G4S should have been required to show that for this contract with the Department of Corrective Services it could, and would, operate with the highest level of safety.
The case also illustrates why some WorkSafe prosecutions take longer than the community is comfortable with.
“At the time of the incident, WorkSafe considered that a police investigation was more appropriate than a WorkSafe investigation because the charges and penalties available under their legislation were stronger and more appropriate.
When criminal charges could not be laid, it was decided that WorkSafe inspectors would investigate the incident to determine whether the Occupational Safety and Health Act had been breached.”
There are echoes of a number of cases in Australia but the death of Brodie Panlock springs most readily to mind.
Duty of Care
WorkSafe Director Joe Attard pointed out an important clarification on duty of care:
“It also illustrates how the State’s occupational safety and health laws place a duty of care on a number of parties in a workplace to ensure the safety of everyone who has a reason to be in that workplace….. Hopefully, the amount of exposure this case has had will ensure that a tragic event like this never takes place again.”
This may echo the OHS mantra from some time ago that one cannot contract out one’s OHS obligations but it is an important reminder.
The latter part of the Attard quote is significant in other ways. He indicates the essential role that the media plays in reinforcing the OHS obligations of workers and management alike. His comments do not relate to advertising which all OHS regulators undertake regularly, but to the journalism, reporting and writing medias. OHS enforcement needs the media.
Attard’s quote also indicates the weakness of his situation. OHS only gets coverage in the mainstream media when there is an additional ingredient that provides topicality and newsworthiness. This could involve race, sexuality, youth, violence, horror or absurdity. Any of these elements, and others, will lift an incident or a prosecution to a higher editorial level without which any OHS matter will struggle for attention.
One media analyst recently said that the OHS regulators should not be judging media success by column inches in daily newspapers and that social media, typified by this blog, should be the principal focus of OHS media strategies. (This notion will be expanded upon in an upcoming interview with WorkSafe Victoria’s Director of Communications, Bernie Dean)
It should be noted that although $A285,000 is a heavy penalty, the maximum fine available was $A400,000. The magistrate has given his reasons for the reduction but given the nature of Mr Ward’s death, it is interesting to speculate what possible action may have eventuated if Western Australia had the offence of Industrial Manslaughter.