Following the discussion on the prosecution of Victoria SES for breaches of the Occupational Health and Safety Act 2004 (Vic) Luke asked “… from a legal perspective, can the family now pursue this for compensation, etc if they so desired? I would also assume the Workcover insurance or similar would have already made a payout or would that depend on the outcomes of this hearing?”

Speaking generally, that is without going into the details of the Wrongs Act 1958 (Vic) which provides detailed rules on when personal injury claims can be brought and the calculation of damages, the prosecution by WorkSafe Victoria has little bearing on a claim for negligence. It is misleading to think of ‘the law’ rather than lots of laws, all of which have different rules and requirements and are there for different purposes.

A person can bring a civil claim for damages if they can show that the defendant (in this case the SES) owed a duty of care to the plaintiff (in this case the deceased and his family) and that they failed to take reasonable care for that person’s safety. That action can be brought quite independently of any WorkSafe prosecution that is the outcome in that case does not depend on the outcome in the criminal case. What has to be proved in the criminal case (ie the OHS prosecution) uses similar words but is not quite the same, further the criminal case has to be proved ‘beyond reasonable doubt’ whereas the civil case need only be proved ‘on the balance of probabilities’.

The result is that an organisation could be sued in negligence and lose, but win a criminal case. Equally (though less likely) you could lose the criminal case but win the civil case. In Victoria the difference between the two cases is probably not all that significant, under the Occupational Health and Safety Act 2004 (Vic) the prosecution (WorkSafe) need to show that the defendant failed to

“…ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.” (s 23).

The reference to ‘reasonably practicable’ is much like the reference in common law to the duty to take ‘reasonable care’ so if you fail to ‘ensure, so far as is reasonably practical’ that people are not exposed to a risk that sounds like you also failed to take ‘reasonable care’.

To again compare that provision with the NSW Act (with apologies to readers from other jurisdictions), the NSW Act say:

“An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.” (Occupational Health and Safety Act 2000 (NSW) s 8(2)).

The duty to ‘ensure’ safety is higher than to take steps that are ‘reasonably practicable’ so in NSW at least you could take ‘reasonable care’ to protect a person (and so not be liable in negligence) but still fail to ‘ensure’ safety (but see s 28 which provides a defence if it was “not reasonably practicable for the person to comply with the provision”. Being phrased as a defence it is up to the defendant to prove that whatever WorkCover allege they should have done was not practical; in Victoria, as the reference to ‘reasonable practicability’ is in the definition of the offence, the prosecution have to prove that whatever should have been done was reasonably practical).

There are other defences that a defendant could rely on in a civil case including contributory negligence (that is the employee or other person contributed to their own injury) and voluntary assumption of risk, that is they knew the risks inherent in what they were doing and how they were doing it and took those risks anyway. Those defences are not easy to establish but they do exist but are irrelevant to an OHS prosecution.

The fact that OHS law and civil law of negligence are separate is made clear in the Victorian OHS Act. Section 34 says

34. Civil liability not affected by this Part

Nothing in this Part is to be construed as-

(a) conferring a right of action in civil proceedings in respect of a
contravention of a provision of this Part; or

(b) conferring a defence to an action in civil proceedings or otherwise
affecting a right of action in civil proceedings; or

(c) affecting the extent (if any) to which a right of action arises, or
civil proceedings may be taken, with respect to breaches of duties or
obligations imposed by the regulations.

In short the right or power to bring a civil action for damages is unrelated to allegations of breaches of the OHS Act. It is possible to be negligent and liable to pay civil damages but not be guilty of a breach of the OHS Act and it is also, at least theoretically, possible be guilty of a breach of the OHS Act and not be liable to pay civil damages (and again I note I have not dealt at all with the provisions of the Wrongs Act 1958 (Vic) ).

Further in a civil case one cannot usually bring evidence that the defendant has been convicted of a relevant crime. The criminal courts are doing a different job and applying a different law so the fact of the conviction is not usually relevant to determining the matters to be decided by a civil court. A plaintiff can always benefit from the fact that there has been a criminal investigation (whether by the police or WorkSafe) as the evidence they obtain can be used, even if the ultimate conclusion, that is that the defendant was guilty, cannot be.

So Luke’s question was “can the family now pursue this for compensation, etc if they so desired?” The family (subject of course to the Wrongs Act 1958 (Vic)) could always have pursued that option, whether before this result or even if there had been no prosecution. The only real benefit in a civil case is that WorkSafe will have collected much relevant evidence that could be relied upon and also their expert’s could be called as witnesses. This action doesn’t ‘open the door’ for a civil action but may make it easier.

As for insurance cover yes the volunteer and his family would be entitled to be compensated under the scheme established by the Victoria State Emergency Service Act 2005 (Vic) ss 47-54. These provisions don’t require proof of fault or negligence and provide that compensation is to be paid as if they were an employee that is they get the equivalent of worker’s compensation under the Accident Compensation Act 1985 (Vic).

The entitlement to receive worker’s compensation under that scheme is entirely unrelated to these prosecutions and exits regardless of whether the SES is negligent or not, breaches the OHS Act or not, or the accident is caused by the or any volunteer. Without going into the details of the Accident Compensation Act 1985 (Vic), worker’s compensation is a ‘no fault’ scheme; fault is simply not an issue.

This is of course a general discussion on the principles applicable and the distinction between a prosecution under OHS law and a civil claim for damages. It is not legal advice on this particular case and can, in no way, be relied upon to infer either that the SES would, or would not, be liable to pay damages or was negligent in this case. As noted above there are a number of legal issues that could be raised and I know no more about this case than that which is available on the public websites that are referred to on this blog.
Anyone wanting legal advice on this case, or any situation in particular, would need to consult lawyers of their choice who could undertake the necessary detailed investigations and consider the application of relevant law.
It should be noted that I have in no way considered the provisions of the Wrongs Act 1958 (Vic) or the Accident Compensation Act 1985 (Vic) which would impact upon any claim for damages arising in Victoria. Similar legislation exists in every Australian State and Territory.

Michael Eburn
10 December 2009.