Precautions reasonably practicable: not determinative of reasonable excuse4 July 2019 | Employer's Liability
In February this year, Mr Gary Lavin, director of Multi-Run Roofing (Multi-Run), was found guilty by a jury of Category 1 reckless conduct under s31 of the Work Health and Safety Act 2011 (the Act). It was the first Category 1 criminal prosecution in Queensland, with Mr Lavin sentenced to one year imprisonment. Mr Lavin appealed his conviction.
- Whether the trial judge did not properly identify the elements of the offence and consequently misdirected the jury, constituting a miscarriage of justice.
Multi-Run had been sub-contracted for a roofing job, the contract for which included payment for the installation of edge protection. Multi-Run elected not to install the edge protection (despite it being available on-site), with Mr Lavin having allegedly stated it would be “too expensive”. An alternative work method was adopted by the workers, whereby the rails of scissor lifts were positioned as a makeshift barrier. One worker would then be positioned near the edge of the roof to straighten the sheets of roofing material, ideally with a harness. It was not contemplated that those doing work away from the edge would wear harnesses, “as they were not in danger of falling from the roof”. Mr Te Amo was one of five workers engaged to carry out that work. On the day of his death, Mr Te Amo was straightening roofing sheets away from the edge of the roof. No edge protection was present, and the scissor lift was not positioned near where he fell (as the ground was too uneven), and Mr Te Amo was not wearing any other safety equipment (such as a harness). He tripped while walking towards the edge of the roof and fell almost six metres to his death.
The decision at trial
The trial judge directed the jury that its decision about Mr Lavin’s conviction turned on consideration of “reasonable practicability”. In relation to the final question the jury had to answer, His Honour said “the question is whether that step [installing the railing] has been proven by the prosecution to have been a reasonable excuse measured against the definition of reasonable practicability, which is the key” – i.e. was it reasonably practicable for the railing to have been erected, and if so, then no reasonable excuse exists. The jury found it was reasonably practicable, and convicted Mr Lavin of an offence against s31, finding he had breached his duty under s27 by failing to ensure Multi-Run’s compliance with its duty under s19, and without a reasonable excuse for doing so.
The issues on appeal
Only one ground of appeal was argued and it was that the verdict arose from a miscarriage of justice caused by the trial judge’s misdirection to the jury.
The Decision on appeal
The Court of Appeal held that the final question for the jury to consider was not whether it was reasonably practicable to install the railing, but rather, whether there was any “reasonable excuse” for failing to install the railing – a question which, it said, required the jury to consider “the alternative measures which the appellant directed to be put in place (the harnesses and the use of the scissor lifts), not just whether it was reasonably practicable to install the railing.” The Court of Appeal held that it was also relevant for the jury to consider what alternative measures Mr Lavin actually believed had been put into place. The real question therefore was whether Mr Lavin, having given directions to the workers about when and how to use the scissor lifts and safety harnesses, had a reasonable excuse for failing to ensure Multi-Run erected the railings. Under s31 of the Act, conduct is not criminal if there is a “reasonable excuse” for the act or omission.
The trial judge’s summing up was therefore defective because it did not properly identify the elements of the offence. This misdirection prevented the jury from performing its proper function. Accordingly the appeal was allowed, the conviction set aside and a retrial ordered.
Implications for you
Where the director or officer of an employer is charged under s31 of the Act, a defence may be available if there exists a reasonable excuse as to why a particular safety measure was not put in place. This decision also suggests that scope may exist to argue that the defence ought still be available even where alternative safety measures have not been properly carried out, so long as the director/officer had given direction to effect those measures and it was their honest and reasonable belief that those directions would/were being complied with.