Have Moot Courts had their day for OHS purposes?

The purpose of OHS Moot Courts is to provide a taste of the Court experience in the context of a prosecution for occupational health and safety (OHS). Moot Courts and Mock Trials [for the purposes of this article the concepts are interchangeable] have specific meanings in law schools and overseas but in Australia there is an increasing trend to tweak the moot/mock format to motivate OHS change by showing the consequences of an OHS breach and resultant prosecution. This application of the concept still needs refining both in structure and purpose but may have had its time.

SafetyAtWorkBlog has attended around half a dozen such events since a cold rainy night at Monash University law faculty over 30 years ago.  That Moot Court, conducted by the Australian Human Resources Institute, had a genuine sense of occasion and fear. Prosecutors went in hard as is the potential for any court case.  A more recent OHS Moot Court was almost jovial and failed to communicate the import of the court process and, therefore, the significance of the potential consequences of the court’s decision.

Condensed cases

There are some practical limitations to Moot Courts. The need to condense an OHS court case into a three-hour block means that much has to be left out and legal shortcuts are required. Another OHS Moot Court recently suspended the rules of evidence to achieve the timeline and, although understandable, this absence diminished the significance of documentary evidence. This was a shame as the need for documentary evidence is a common motivator for the development and maintenance of an OHS management system.

The omissions and shortcuts need to be countered at some point in the presentation. This could be achieved by providing a summary of the Moot Court event that lists issues such as

• Any weak statements or questions from the legal participants or the role players.
• Any missed opportunities by the lawyers to press their respective cases
• The presentation of the role players in terms of the answers given, the clarity of language and, even posture and body language in court.
• The crucial role of documentary evidence.

But that this has to occur further distances the simulation from the reality and therefore diminishes its impact.

The importance of the scenario

One significant element to a successful Moot Court is the preparation of a detailed scenario. One recent event distributed the detailed scenario to participants days before the event so that the background to each of the witnesses and the case as a whole was not unfamiliar. An additional advantage of this is that the scenario can be used as a case study by participants after the event to review their own operations in a similar situation or even to subject the scenario to an OHS incident investigation runthrough.

Last year a Moot Court was run with a legal narrator to structure the case and to provide a running context. The advantage of this type is that the narrator can emphasise significant statements or omissions as the case proceeds but the delivery can be very messy, particularly if one of the participants fails to stick to the script.

The personality of the participants is crucial. Even though a Moot Court is a simulation, prosecutors should be combative, or at least display the potential aggression or adversarial stance of lawyers.

The Australia practice of OHS Moot Courts intends to impart dread, the dread of appearing in Court to defend one’s actions. This dread is meant to be a motivator for avoiding the legal situation by avoiding the injury catalyst. But there are many steps between a prosecution and the maintenance of a safe workplace, and a Moot Court needs to work hard to emphasise that link. This may be difficult to achieve during a Moot Court but the OHS context should be emphasised before or after the event.  The message from these Moot Court scenarios should not be to avoid prosecution but to avoid the catalyst for that prosecution – the worker’s injury or illness.

Alternatives

It may be time for a review of the aims of OHS Moot Courts in Australia and to keep the simulations as they were originally intended – for law students.  Sometime ago a Seacare conference ran a “hypothetical” on a maritime workplace incident that ran through the culture of the workplace, the incident itself, the immediate legal and medical responses to the incident, and the return-to-work process.  The attraction of this was the continuity of the timeline with the worker as the focus, as should be the reality.  The complexities of each stage were clearly stated and not underplayed but the return of the worker to health and work was the thread of the exercise.

Such an exercise is likely to be as truncated as an OHS Moot Court but it addresses all of the organisational elements in the cycle of work to injury to work.  This has the added advantage of expanding the audience from OHS professionals and risk managers to all the relevant elements of an organisation that could affect, or be affected by, the injured worker.  If worker welfare is to be holistic, multi-disciplinary and all those other current buzzwords, it seems sensible to have as integrated a scenario and exercise as possible.

There is also the reality that, in Australia at least, there seems to be a trend for OHS regulators to be more selective in the cases they prosecute thus reducing the likelihood of being prosecuted.  As this likelihood reduces the learnings of a Moot Court become less relevant.

OHS Moot Courts can be an interesting piece of courtroom theatre but when one asks about their purpose and analyses the organisational benefits of such events, there may be more productive and effective alternatives.  The hypothetical mentioned above is one option, particularly if the scenario is close to reality, relevant, structured well and delivered well.  In this time of the increased prominence of leadership and culture in the establishment and maintenance of a successful OHS system, it seems more important to have an educational exercise that emphasises the interconnectedness of OHS rather than focusing on the increasingly unlikely consequence of an OHS prosecution.  Fear or prosecution is a reality but it should not be used as a catalyst for change.

Kevin Jones