Extraordinary duty of care prosecution over a near miss

Near miss events, or “close calls”, are important opportunities to review safety and work processes.  In fact they can be the best opportunities as the participants and witnesses are still alive and can provide detailed information on the mistakes, breakages or oversights.  But rarely are companies prosecuted for near misses.

In Western Australia, a company has been found guilty of breaching its duty of care after two of its workers were lost for almost a whole day, and was fined over $A50,000, the highest fine of this type.  The near miss is almost comical and at least one newspaper has described it as a “comedy of errors“, except that it could easily have resulted in tragedy.  WorkSafeWA’s (long) media release, provides the details:

MAXNetwork was contracted to the Department of Education, Employment and Workplace Relations to consult with disadvantaged job seekers, in this case through their office in Kalgoorlie.

A number of employment consultants work at the Kalgoorlie office, and they regularly travel to remote areas – some accessible only by dirt roads and narrow tracks – to work with job seekers.

In December 2009, two of the company’s Kalgoorlie area employment consultants were instructed to do an “outreach visit” to the remote community of Tjuntjuntjara, around 600km north-east of Kalgoorlie in the Great Victoria Desert.

The two consultants departed Kalgoorlie in a Toyota Prado leased by MAXNetwork at around 6.00am on a journey estimated to take nine to ten hours on a road with no signs that was a narrow track in some places.

The women were not provided with a map, GPS or any other navigational aid, and consequently they became lost. They had received no training or instruction on travelling in remote areas, and so did not know what to do in the event of becoming lost.

The satellite telephone provided to the consultants did not work, and management was aware of this prior to the trip. In addition, there was no schedule for regular contact with workers in remote locations so no-one realised the women were overdue.

The vehicle did carry an EPIRB [emergency position-indicating radio beacons], but neither woman had been adequately trained or instructed in its use and it was not turned on correctly. They had not been trained in driving or maintaining the vehicle, instructed to take more food and water than they needed or provided with first aid training.

MAXNetwork’s Area Manager received a call from the Tjuntjuntjara Community at about 4.30pm on the day of the trip, asking when the consultants would arrive. The Area Manager said she believed the women were just running late, and did not try to contact them on the satellite phone. She sent a text message to one of the women during the evening, but the mobile phone had no reception.

Unaware they were on the wrong track, the two consultants drove through the night, hoping to find the community and dialling 000 on the satellite phone, which was displaying “invalid account”. They had not been told the emergency number for the satellite phone was 911.

At around 5.00am, after 23 hours of constant driving, the consultants came across the Ilkulka roadhouse, outside of which was a public telephone that one of the women used to telephone her husband, who contacted the Area Manager to tell her that the two women were lost.

The Area Manager tried to activate the EPIRB to locate the women, but nothing came up and she was unable to locate the vehicle. Soon after, the husband of one of the women arrived at the office with his wife on his mobile phone, and she told to push to “I’m OK” button to activate the EPIRB.

They were eventually met by the roadhouse’s caretaker, who made some temporary repairs to their vehicle, gave the women some tips on four wheel driving and loaned them his GPS and satellite phone. They arrived at Tjuntjuntjara in the middle of that afternoon.” [links and acronym clarification added]

WorkSafeWA has long recognised the risks of working alone in a state of such enormous size with isolated communities and has had guidance on the issue for some time.  It is clear from the information above that MAXNetwork was aware of the hazard and relied on technology to provide communication but the most telling, and damning, element of the story was that the women

“…had received no training or instruction on travelling in remote areas, and so did not know what to do in the event of becoming lost.”

Our reliance on technology has created a culture of dangerous assumptions.  It is assumed that we are all knowledgeable about using technologies that are inconsistently designed and that younger generations learn to use more through peer support (and ridicule), than from manuals. (When I first received an iPad, I could not find an “On” switch, and the manual did not help).  The lack of technological knowledge, that may seem silly in an office or at home, is potentially  life-threatening in other circumstances, as was seen from the information above.

It is becoming common in workplaces to devalue safety training or to be less tolerant of the time that effective training requires.  Rushed safety training is almost worse than no training because it implies that safety must be “got over with quickly before we get to the real work”.  This does no one any favours.

Other Australian jurisdictions have given less overt attention to the duty of care in OHS.  It rarely features in prosecutions and more often than not is left as a simple phrase in legislative aims without adequate explanation, yet it is the humanitarian concept that many people are urging to be applied in workplace safety programs and processes.

A detailed analysis of this near miss and the  related managerial deficiencies would be enormously valuable to companies across Australia, and not only those who may have workers going to isolated areas.  The plethora of flawed technological and communication devices could apply in many situations and our over-reliance on technology can be seen in many industries.  Sadly, Magistrates Courts in Australia are not obliged to publish findings or judgements, so details for safety lessons are almost non-existent, an inexcusable hole in court reporting.

The prosecution seems justified in this case due to the level of risk to which the workers were exposed.  It is a near miss as the situation could so easily have gotten worse.  The circumstances of the isolated work deserves more detailed investigation, a need that is unlikely to be satisfied.

Kevin Jones

3 thoughts on “Extraordinary duty of care prosecution over a near miss”

  1. To call this frustrating would be an understatement. It is simply unacceptable to let this happen. Women were traveling to a remote location not only without proper training but also without proper equipment and, most importantly, any attention of their supervisor. And we absolutely agree with The Watchkeepers that this case cannot be judged simply because there were no fatalities. A fatality would be too high price to pay.

  2. We should accept that satellite phones cant always access a satellite and that cell phones cant always pick up a signal, because we know that to be the case. Sending workers into an environment with a phone that is known to have problems is not forgiveable or acceptable.

  3. This is only a close call if you judge it by the fact that there weren\’t any fatalities. There were so many miscues and mistakes made in relation to the safety of these two workers that in my mind this has to be considered a serious incident rather than a close call.
    If people are being sent into remote locations there has to be adequate equipment and supplies along with the necessary training to workers on how to properly use the equipment and what to do in the event of problems or an emergency. None of this appears to have been done in this case and the managers response on being informed that the workers had not arrived at their destination is nothing short of ludicrous.
    I agree with Kevin that modern society puts too much faith in technology and its ability to perform flawlessly all the time. We won’t accept that there are areas without cell phone coverage or that GPS and satellite phones may not always be accurate or be able to access a satellite.
    This incident should be viewed as a learning experience and a wake-up call for all employers and organizations that send people into remote locations whether the deserts of WA or the forests of BC.

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