Retrial ordered for director convicted of WHS breach

The Queensland Court of Appeal has provided valuable insight into the operation of the "reasonable excuse" element under section 31 of the Work Health Safety Act 2011 (WHS Act) in R v Lavin [2019] QCA 109 and has explored in further detail what sets a category 1 offence, which carries a maximum sentence of imprisonment, apart from category 2 or 3 offence, which only carries maximum penalty of a fine.

The facts in Lavin

On 6 February 2019, company director, Gary William Lavin, was found guilty for breaching section 31 of the WHS Act for failing to exercise his due diligence duties as an officer to ensure his roofing company, Multi-Run Roofing Pty Ltd, complied with its primary duty under section 19 thus exposing its workers to a risk of death or serious injury or illness. Mr Lavin and Multi-Run were both found to have engaged in reckless conduct by failing to install safety railings for roofing work, despite quoting to do so. Instead, Multi-Run adopted an alternative safety control which involved workers wearing harnesses when working close to the edge and positioning a mobile scissor lifts as a barrier at the edge of the roof. In July 2014, Whareheepa "Fuddy" Te Amo, employee of Multi-Run, tripped while working on the roof and fell approximately six metres. Tragically, Mr Te Amo died from his injuries. At the time of the incident, Mr Te Amo was not wearing a harness as he was not scheduled to work near the edge and therefore not required to wear one.

Mr Lavin was sentenced to one year's imprisonment (to be suspended after four months) making him the second person in Australia to be sentenced to a custodial sentence resulting from a work health and safety breach.

Mr Lavin lodged an appeal against his conviction and sentence. On 3 May 2019, the Queensland Court of Appeal set aside the conviction and ordered a retrial on the basis the trial judge misdirected the jury when summing up during the original trial.

Why did the Court of Appeal order a retrial?

The elements of section 31 are:

1. the accused is subject to a health and safety duty;
2. the accused engages in conduct that exposes a person to whom the duty is owed to a risk of death or serious injury or illness;
3. the accused engages in the conduct without reasonable excuse; and
4. the accused, in engaging in the conduct is reckless as to the risk of death or serious injury or illness

In its judgment, the Court of Appeal held the District Court Judge Glen Cash misdirected the jury on the third element of the section 31 offence in relation to whether the director engaged in conduct without reasonable excuse.

The trial judge erroneously directed the jury to consider whether the director omitted to do something (in this case failing to erect safety railings along the edge of the roof) that was a reasonably practicable step for the director to have taken to ensure the company complied with its safety duty.

However, the Court of Appeal held that the issue under section 31 was not whether installing the railing was "reasonably practicable". Rather, it was whether the failure to install the railing exposed the workers to a risk of death or serious injury. If so, the question the jury should have determined was whether there was the director had a reasonable excuse in making that omission.

The issue of whether erecting the railing was a reasonably practicable step the company ought to have taken was not relevant to this particular element.

The Court of Appeal summarised that "the real question was, having given those directions and, in the context of any other relevant evidence in the case, whether he [the director] had a "reasonable excuse" from not causing Multi-Run to erect the railing."

Furthermore, the Court of Appeal commented that in determining whether there was a reasonable excuse, the jury should have considered the alternate measures that Mr Lavin directed to put in place (ie. the harnesses and scissor lifts) and whether these alternate measures were a reasonable excuse for leaving the workers otherwise exposed to whatever risk of falling from the roof remained.

When considering whether the director had a "reasonable excuse" for engaging in the alleged conduct, the Court of Appeal held that it was relevant to consider both the alternate measures the director in fact put in place, and what measures the director believed had been put in place. The director instructed workers on the roof to use the harness if they were working near the edge and he directed that the scissor lift be positioned in a way that constitutes a barrier. The Court of Appeal highlighted that the director's belief is relevant to the reasonableness of any excuse.

This will now be an issue to be considered and determined by a new jury at retrial.

Why is the Lavin decision important?

We have seen the regulators' appetite to charge officers for WHS breaches (particularly category 1 offences) have increased significantly in the past year. This is of particular concern given the potentially very high personal consequences for those officers in the event of a conviction. This case has broadened our understanding on what considerations a Court and jury must look at when determining the guilt of a person charged with a category 1 offence.

This decision adds to the judicial consideration of WHS law. The fundamental principles in Lavin in reflect the High Court's influential decision in Baiada Poultry Pty Ltd v The Queen [2012] 246 CLR 92. The High Court held that an employer's duty to ensure health and safety "so far as reasonably practicable" does not mean that the employer has to take every possible step that could have been taken. Practically, this means it is not enough for the prosecution to assert that a step could or should have been taken to improve safety outcomes.

As seen in Lavin, it was not sufficient for the prosecution to point to the fact the company did not erect the safety railing. The prosecution must still prove that the accused engaged in conduct that exposed a person to a risk of death or serious injury or illness.

We will continue to follow the developments in this matter and provide an update once the case is back before the Court.