January 18, 2016

One of the first test cases under the model Work Health and Safety legislation occurred in the ACT in 2012.

Michael Booth had been retained on an hourly rate basis to deliver road building materials to a small compound. Over the compound were low hanging, energised electrical conductors, which was a known hazard to the company, Kenoss, which operated the site. During a dump, Mr Booth’s tipper truck formed an arc with the conductor/s and having exited his vehicle, Mr Booth was found dead on the ground.

Magistrate Walker found that these risks had been known and that simple and affordable methods could have avoided the death.

Both the company and its General Manager were prosecuted for breach of the Work Health and Safety Act 2011 ACT. In her decision of 23 June 2015, Industrial Magistrate Walker made a number of observations. These included that the offences were criminal in nature, meaning inter alia, that the prosecution had to prove the offences beyond reasonable doubt, and that strict liability applied pursuant to section 12A of the Act.

In her judgment, Magistrate Walker held that the General Manager did not actually have the authority normally ascribed to a GM as he had to defer to the owners of Kenoss for budgeting and spend decisions. According, she found that he did not have control of Kenoss as a responsible officer of a PCBU (person conducting a business or undertaking) and could not be prosecuted on that basis.

The company, which was in liquidation, was found to be in breach and fined $1.1m.

ABN 66 115 818 338
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