OHS Legislation

1
EHS
Legal Liability, Duty of Care and Due
Diligence Types of Legal Liability Health and
Safety Laws administered through Civil
Courts - Common Law eg damages Criminal
Courts - Criminal Law eg manslaughter Industri
al Courts - Statute Law, OHS Act
2
EHS
Legal Liability, Duty of Care and Due
Diligence Civil Court Common Law - Claim for
Damages Wilson Clyde Coal Co. v. English
(1937) Entrenched legal requirement that
employers have a duty to take reasonable care for
the safety and health of employees, by
providing 1. competent staff 2. proper plant,
premises equipment 3. a safe system of work
3
EHS
Legal Liability, Duty of Care and Due
Diligence Industrial Court Early Industrial
Legislation 1823 NSW NSW Act authorising
Supreme Court 1828 Australian Courts Act
British statutes apply 1896 Victoria Factory
Shops Act 1901 NSW - Coal Mines Inspection Act
1912 NSW - Construction Safety Act 1962 NSW -
Factories, Shops and Industries Act 1982 NSW -
Coal Mines Regulation Act
4
EHS
Legal Liability, Duty of Care and Due
Diligence Industrial Court OHS Inquiries
Legislation UK Royal Commission on Factory
Shops Act (1876) UK Royal Commission on Safety
in Coal Mines (1938) UK Robens Committee of
Inquiry into OHS (1970) NSW - Williams
Commission of Inquiry into OHS
(1979) Commonwealth National OHS Strategy
Report (1984) NSW Standing Committee on Law
Justice Workplace Safety (1998) NSW OHS Act
(1983) NSW OHS Act (2000)
5
EHS
Legal Liability, Duty of Care and Due
Diligence Industrial Court Complimentary Safety
Legislation NSW OHS Act (2000) Radiation
Control Act (1990) Smoke-free Environment Act
(2000) Pesticides Act (1999) Road Transport
(Safety and Traffic Management) Act (1999) Food
Production (Safety) Act (1998) Agricultural
Veterinary Chemicals Act (1994)
6
EHS
Legal Liability, Duty of Care and Due
Diligence Criminal Court Criminal Negligence
Industrial Manslaughter NSW Crimes Act Cases
conducted under, reckless indifference, unlawful
dangerous act, negligence and criminal
negligence provisions. Victorian Bill on
Industrial manslaughter defeated
16/05/02. Federal Building Construction
Industry Improvement Bill amendment 6/11/03. ACT
to debate Crimes (Industrial Manslaughter) Bill
end Nov 2003 Canada Royal Assent received to
Industrial Manslaughter Laws 10/11/03
7
EHS
Legal Liability, Duty of Care and Due
Diligence Duty of Care Comparison across
jurisdictions Common Law - to take reasonable
care of the health and safety Statute
Law - to ensure the health, safety and
welfare
8
EHS
Legal Liability, Duty of Care and Due
Diligence Tests Test for whether reasonable
care has been taken is a measure of Causation-
establish with requisite degree of
certainty Foreseeability- determine risk was
foreseeable Preventability- preventable by
practicable precautions Finally a decision based
on the likelihood and seriousness of the risk,
whether a reasonable and prudent person would
have taken those precautions.
9
EHS
Legal Liability, Duty of Care and Due
Diligence Application Civil -
probable Criminal - beyond reasonable
doubt Statute - absolute duty moderated
by practicability and foreseeability
10
EHS
Legal Liability, Duty of Care and Due
Diligence Safety Prosecutions Civil -
Individuals Criminal - Police/ ODPP/
WorkCover Statute - WorkCover/ Authorised
Industrial Associations
11
EHS
Legal Liability, Duty of Care and Due
Diligence Penalties Civil - damages plus
punitive costs Criminal - term of
imprisonment OHS Act - 1stmax 550,000
corporation max 55,000 individual
/or 2 years imprisonment -
2ndmax fine plus 50 /or 2 years
imprisonment
12
EHS
Legal Liability, Duty of Care and Due
Diligence Negligence Negligence is the failure
to exercise your duty of care.
13
EHS
Legal Liability, Duty of Care and Due
Diligence The Exercise of Due Diligence Due
diligence means taking care. In the workplace,
it means taking every precaution reasonable in
the circumstances to protect the health, safety
and welfare of all persons that you are
responsible for at your worksite. The careful and
systematic management of risk are good indicators
of taking all due diligence.