A correspondent has drawn my attention to a US case where a company was fined for failing to make a timely call to 911 to assist a trapped employee.  The report can be found on the website of the Society for Human Resource Management (see Roy Maurer  ‘Court Rules Delayed 911 Call Willful Violation’ (20 May 2015)).   The key facts is that the employee was trapped in a confined space for some 90 minutes before anyone called 911 for professional rescue assistance.  The defendant company was prosecuted for a ‘wilful’ breach of the US occupational health and safety laws.

My correspondent asks ‘What would be the obligation in Australia, for a similar confined space entrapment?’

In the US, as I understand it, occupational health and safety is a matter of federal law; in Australia it’s state law but we are meant to have a uniform code (we don’t have it yet, but we’re working on it).  In answering this question I’ll refer to the Commonwealth law as an example of the model legislation, but the details could vary state by state.

One issue in the US case was that where an employee was required to enter a ‘permit-required’ confined space, the employer had to have in place  ‘procedures for summoning rescue and emergency services, for rescuing entrants from permit spaces, for providing necessary emergency services to rescued employees, and for preventing unauthorized personnel from attempting a rescue.”   the defendant argued that they had the procedures, they just didn’t follow them but the Act, they said, didn’t require them to actually follow the procedures.  The court accepted that:

“That may be a permissible literal interpretation, but it is neither inevitable nor sensible, as it would allow the employer to do nothing at all to rescue a worker injured or endangered at work—not even call 911,” said the court. “Literalism frequently, and in this instance, leads to absurd results.”

In Australia the Work Health and Safety Regulations 2011 (Cth) also impose an obligation upon a Person Conducting a Business or Undertaking (a PCBU) to have in place ‘first aid procedures and rescue procedures to be followed in the event of an emergency in a confined space’.  What’s more the PCBU is required to ‘ensure that first aid and rescue procedures are initiated from outside the confined space as soon as practicable in an emergency’ (Regulation 74).    In the US it was implied that the duty to have emergency procedures also required them to be used; that is made explicit in the Australian model.

The relevance of finding that the action was ‘wilful’ lies in the US Statute.  Where there is a violation of the Act the relevant inspector can issue a citation, but where the breach is ‘wilful’ a more formal prosecution and heavier penalty applies (see Occupational health and Safety Act 1970 (US) ss 9 and 17).

In Australia we have Category 1, 2 and 3 offences.  Category 1 offences are the most serious.  This is where a defendant breaches their duty under the Act and is ‘reckless as to the risk to an individual of death or serious injury or illness’ (Work Health and Safety Act 2011 (Cth) s 31).  Reckless means that they realised that their conduct or failure to act would expose someone to death or serious injury or illness but went ahead anyway (Michael Eburn, Rod Howie, Paul Sattler, Criminal Law and Procedure in NSW (4th ed 2014, Lexis/Nexis) 43).

A category 2 offence involves a breach of a work health and safety duty in circumstances that ‘exposes an individual to a risk of death or serious injury or illness’ (Work Health and Safety Act 2011 (Cth) s 32).  The difference between a category 1 and 2 offence is that to be a guilty of a category 1 offence the defendant needs to be aware that they are exposing someone to a risk of death or serious injury.  If the defendant was not aware of the possible consequences of their failure they would be guilty of a category 2 offence.

A category 3 offence involves a defendant being in breach of their health and safety duty but in circumstances where there is no particular risk of death or injury (Work Health and Safety Act 2011 (Cth) s 33).

The word ‘wilful’ does not get used in the Australian Act.

It follows that should a similar situation arise in Australia the defendant would be guilty as not only would they need to have an emergency procedure in place, they also had an obligation to ensure that the procedures were followed.  Failure to do that carries a maximum penalty of a fine of $30,000.

Depending on the circumstances however, the prosecuting authority (in the Commonwealth, ComCare) may prefer to bring a prosecution under one of the ‘general’ (rather than specific) offence provisions.

We are told that the US worker

… had been trapped for 90 minutes, [before] the manager called 911. Fire department personnel reached the scene within 10 minutes, but it took them between three-and-a-half and four hours to free Ortiz, meaning he had been trapped for more than five hours. He sustained serious injuries to his lower body from being squeezed by a large mass of sand for such a long time, including a herniated disc and a torn meniscus.

The failure to ensure his health and safety clearly exposed him to a risk of death or serious injury so this would be a category 2 offence which carries a maximum penalty for the company of $1.5 million and for an individual, $150 000.   If it could be shown that the manager was aware of, or understood or could foresee the risk, it becomes a category 1 offence which carries a maximum penalty for the company of $3 million and for the individual $300 000 or 5 years imprisonment or both.