A correspondent has:

… some questions about the recently introduced Industrial manslaughter Laws in Queensland (Work Health and Safety and Other Legislation Amendment Act 2017) and the relationship to Queensland Fire and Emergency Services decision making process regarding driving emergency vehicles.

In particular I would like to ask about the accident in Darwin, Inquest into the death of Kevin Taylor, Lena Yali and Gregory McNamara [2013] NTMC, involving the ARFFS vehicle impacting the vehicle causing death.

  1. If a similar incident occurred in Qld today, would this come under the Industrial manslaughter laws and what might be the result?
  2. Knowing that the QFES does provide training in Emergency response driving (PUAVEH001B) would this affect the decision?
  3. If it was found that the QFES assumes that persons employed ‘can drive a heavy vehicle/Emergency response vehicle’, by virtue of the fact they already have a license but does little to nothing about checking whether they can actually drive, would this change the decision?

Finally, if it was found that delivery of training to achieve PUAVEH001B –  Drive Vehicles Under Operational Conditions was provided by a 3rd party entity, not within the fire brigade, to achieve the outcome in the following manner; Staff are provided a non-accredited course giving them an internal qualification (QFRS Driving Instructor) that allows fire offices to deliver accredited training to both recruit firefighters and auxiliary staff.  The Driver Training is being delivered under a 3rd party agreement by a person who does not hold the qualifications (PUAVEH001B nor is an accredited Driving Instructor) – That 3rd party provider does not hold any qualifications in Training and Assessment. In short, the process involves a 3rd party provider training internal staff, to act as Driving Instructors and sign off on content through that same 3rd party provider using the QFES RTO status to achieve the outcome of the qualification.

4. Would this model, for training of staff in ‘Driving vehicles under operational conditions’ sway the view of any decision made under the same act?

5. Are the QFES instructors actually ‘Driving Instructors’ or just used as a tool to achieve an outcome?

6. Does this ‘Validate someone’s ability to drive and emergency vehicle’ not withstanding any subsequent questioning of the actions of their instructor when doing so?

I can’t get into the details of the way QFES is alleged to conduct the training.  This is not a place for legal advice and my correspondent is putting an interpretation on what is happening which I anticipate QFES would dispute. Further without reference to documents to verify the standing of the ‘3rd party’, the contractual arrangements etc any answer would be merely speculative.  I will therefore limit my answer to the industrial manslaughter issue.

The Darwin incident referred to was a collision involving an Airport Rescue and Fire Fighting (ARFF) appliance.  The matter was subject to a coronial inquest and ARFF was prosecuted for breaches of the Work Health and Safety Act.  The accident and the legal outcomes are discussed in earlier posts; see:

  1. Airservices Australia to be prosecuted over fatal fire appliance accident in Darwin (January 14, 2015); and
  2. Outcome of Airservices Australia prosecution over fatal fire appliance accident (April 24, 2016)

The industrial manslaughter laws were introduced by the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld).  Relevantly the Act inserts a new s 34C into the Work Health and Safety Act 2011 (Qld). The new s 34C says:

A person conducting a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the person’s conduct causes the death of the worker; and

(c) the person is negligent about causing the death of the worker by the conduct.

In the context of the Darwin accident the person conducting the business or undertaking (the PCBU) was ARFF.  If we assume a similar accident involving QFES then the PCBU would be QFES.  For s 34C to apply there needs to be a death of a worker.  In the ARFF accident no employee of ARFF was killed. It follows that the answer to the question ‘If a similar incident occurred in Qld today, would this come under the Industrial manslaughter …?’ is no, it would not as there was no ‘worker’ killed.

Assuming that a firefighter was killed then the industrial manslaughter laws may apply if the conduct of the PCBU or a senior officer within the PCBU substantially contributed to the worker’s death (s 34A(2)). That would be a question of fact to be determined in all the circumstances. In a motor vehicle accident the nature of the driver training may be relevant but may be irrelevant depending on the circumstances.  Assume for example that a driver has had no training and the PCBU neither provides nor requires training. That may be a breach of various obligations under the Work Health and Safety Act, but if he driver is killed when a speeding drunk driver collides with the appliance, it would be hard to say that the training (or lack thereof) substantially contributed to the death.

As noted, even without industrial manslaughter laws, ARFF was prosecuted for the way it managed, and trained its staff to respond to, a request for assistance from the Northern Territory Fire and Emergency Services.  It is hard to see what these new laws add where the defendant is a corporate entity as a corporation can’t go to gaol.

The relevance of industrial manslaughter laws is the extension to senior officers (s 34D).  The term ‘senior officer’ does not refer to the ‘officer’ ranks within a uniformed organisation like QFES.  A senior officer of any PCBU is (s 34A(1) definition of ‘senior officer’)

(a) if the person is a corporation—an executive officer of the corporation; or

(b) otherwise—the holder of an executive position (however described) in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person’s functions.

Section 34D says:

A senior officer of a person who carries out a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the senior officer’s conduct causes the death of the worker; and

(c) the senior officer is negligent about causing the death of the worker by the conduct.

Maximum penalty—20 years imprisonment.

Proving, beyond reasonable doubt, that a senior officer’s conduct substantially contributed to the worker’s death (s 34A(2)) could be difficult.  Where decisions are made at board level then each member of the board has input into the decision and has to exercise ‘due diligence’ to inform themselves of the factors in issue. If, as in this example, the issue is driver training that would require a risk assessment which includes an assessment of the response to the risk. There are a number of options in response to any risk.  Where the board does do the sort of risk assessment anticipated by the Work Health and Safety Act and reaches a decision to, say, engage a 3rd party contractor to provide driver training, it would be hard to prove that the decision was negligent or that any senior officer contributed to the death of a firefighter in a motor vehicle accident; even if a firefighter thought the training was inadequate.

The closer a senior officer is to a decision then the easier it would be to say that his or her action ‘caused’ the death of the worker. So if an executive officer gives a specific direction to a contractor to take a short cut when installing safety equipment and it can be shown that this lead to a failure and a worker dies who would not have died had that action not be taken, then it would be easier to draw the necessary causal link between the senior officers actions and the death.

Let me then return to the questions:

  1. If an incident similar to the fatal ARFF collision occurred in Qld today, would this come under the Industrial manslaughter …? No, it would not as there was no ‘worker’ killed.

The remaining questions assume that the answer to question one is ‘yes’.  Given that it isn’t then the answer to those questions must be ‘no’. But that’s not helpful.  Assume a firefighter is killed then my correspondent is asking if, what’s been described as the QFES diver instructor model would see any liable for industrial manslaughter.  I can’t answer that question even assuming the descriptions given are true. I don’t know:

  • what risk assessment QFES has done;
  • the nature of the contract between QFES and the ‘3rd party’;
  • what’s going on ‘behind the scenes’ that my correspondent also doesn’t know;
  • what the executive have done as part of their due diligence;
  • whether there’s been any fraud or misrepresentation by the 3rd party; and
  • in the absence of any specific accident how much the training, or lack thereof, would be said to contribute to the death. Training doesn’t remove all risks.

These factors would be relevant to any prosecution under the Work Health and Safety Act, whether that is for failing to provide a safe system of work or industrial manslaughter.  It is certainly not as simple as saying ‘if training is as described, then QFES will be liable for industrial manslaughter if a firefighter dies in a collision’.