Today’s question comes in two parts:

1) In relation to determining liability can you please elaborate on the hierarchy of the below, which supersedes which, how they are used in eg coroner’s court & in situations where say there is no relevant/defined standard would following (Industry best practice) legally be justifiable & how is industry best practice determined?

> Australian Standards

> State Act’s & Reg’s

> State Codes of practice

> OEM Guidelines

> Industry best practice

> Employer Standard Operating Procures/ Safe Work Guides

2) I’ve come across this situation many times in different fields of Private industry Rescue, however currently in relation to company’s providing confined space rescue/standby (AS 2865 & QLD Confined space code of Practice 2011 don’t cover required numbers of rescue personnel).

I would consider professional state fire services standards “best practice”, in this case QFES. Would that be a correct thought pattern in the state of QLD & in the absence of any employer defined guides?

The QFES Breathing Apparatus manual & QFES Tech rescue manual confined space rescue working in pairs is a requirement & entry rescue teams are a minimum of 2 personnel.  However all private Industry Company’s I have come across only require 2 personnel total to conduct the job, so in the event a rescue is required a single operator would enter the confined space to perform the rescue.

Possibly the company have conducted a risk assessment and decided 2 personnel were sufficient & obviously there is a cost concern to support this train of thought, however should an incident take place & investigation follow would a company’s risk assessment stand up in coroners court when it follows processes outside/contradicting of industry best practice?

Part 1

In a court of law, the court’s job is to apply the law – that is the Acts and Regulations and the common law developed by the judges.

Other matters, such as Australian Standards, Codes of practice, Guidelines, Industry best practice and Employer Standard Operating Procures/ Safe Work Guides are, subject to what I’m about to say, evidence that may be used (depending on the issue) to identify what should be considered best practice.  In an earlier post (Non approved PPE, the NSW RFS & Work Health and Safety (November 22, 2014) I said:

In an earlier post (‘Face masks for residents near the Hazelwood Mine fire, Victoria’ (February 26, 2014) I said:

… it may come as a surprise that Australian Standards are not legally binding. There is no general obligation to comply with Australian standards though there may be in specific circumstances. For example a motorcycle crash helmet must comply with Australian Standard 1698-1988 but that is because of a specific rule (Trade Practices Act 1974 – Consumer Protection Notice No. 9 of 1990 – Consumer Product Safety Standard: Protective Helmets for Motor Cyclists) rather than some general obligation to comply with the Australian Standards.

The relevance of the Australian Standards is that if there is an allegation that someone failed to act reasonably, whether that is in a claim for negligence or a prosecution for work health and safety standards, evidence of compliance with (or failure to comply with) an Australian standard may be evidence that the defendant’s response to a risk was (or was not) reasonable. It is not however conclusive evidence, compliance with an Australian standard does not prove a reasonable response to risk; evidence of failure to comply does not prove an unreasonable response to risk. It is just one factor to be considered in all the circumstances.

A search of the Australian Legal Information Institute (AustLII) using the search <“Australian standards” and negligence> brings up 996 cases which may sound like a lot but when one considers that is nearly all Australian tribunal and courts going back about 25 years and, in the case of the High Court, to 1901, it’s not really that many.  The cases (having looked at a view from the superior courts, not all 996) do as my correspondent has suggested, refer to the Australian Standards as evidence, but not conclusive evidence as to what may be required in particular circumstances.

The exception to that principle that Standards, Code of Practice etc are simply evidence arises when they are ‘called up’ by the legislation (for example as discussed with reference to the Trade Practices Act 1974  (Cth) (now repealed) in the above quote).   The Work Health and Safety Act 2011 (Qld) s 274 provides that the Minister may approve relevant Codes of Practice.   Where a person is prosecuted for breach of a duty under that Act an ‘approved  code  of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with’ (s 275).

Answer to part 1

To put the list in a hierarchy it would be:

  1. State Acts & Regulations;
  2. Australian Standards, State Codes of practice, OEM Guidelines, Industry best practice, and Employer Standard Operating Procures/ Safe Work Guides to the extent that they are specifically called up in legislation;
  3. Australian Standards, State Codes of practice, OEM Guidelines, Industry best practice, and Employer Standard Operating Procures/ Safe Work Guides that are not called up in legislation.

Part 2

QFES may set the standard of ‘industry best practice’, that would be up to the industry to determine.  It is not true just because QFES is QFES. (For a related discussion see Industrial rescue squad – Queensland mining sector (December 8, 2018)).

The obligation upon a private industry rescue team is to undertake a risk assessment as required by the Work Health and Safety Act 2011 (Qld) and the relevant regulations in this case the Work Health and Safety Regulation 2011 (Qld) Part 4.3 Confined Spaces.    Regulation 69 says that there must be ‘monitoring of conditions within the space by a standby person who is in the vicinity of the space and, if practicable, observing the work being carried out’ (emphasis added).  The reference to ‘a’ standby person is a reference to a singular person that is this regulation only requires one person to be within the vicinity of this space.

Of course this regulation is dealing with what may be described as routine entry to a confined space, not entry that may be required when it is known that something has gone wrong and a rescue is required. There are provisions for emergency procedures (r 74) but they do not prescribe minimum staffing levels.

Answer to part 2

The question was

… should an incident take place & investigation follow would a company’s risk assessment stand up in coroners court when it follows processes outside/contradicting of industry best practice?

How it will ‘stand up’ depends on how good it is and what processes the person conducting the business or undertaking can show they used to come to their own conclusions.  If they are being prosecuted for an offence contrary to the Work Health and Safety Act then compliance with any relevant Code of Practice will be evidence that they did, or did not, meet their duties under the Act. Evidence of other practice (the battle of experts) will go to issues of whether they should or should not have done something differently.  What the outcome would be would depend on all the circumstances.

Remember a coroner cannot do anything but make recommendations.  He or she may recommend that those involved in confined space rescue should consider the guidance offered by some particular organisation or practice.