News

An analysis of the ‘Rutherford’ Case

November 22, 2006

What it means for Firefighters

From the Union’s perspective, this case is very significant. Besides being the first time the Department has been held criminally responsible for its behaviour, this case sheets home responsibility for the past and to a certain extent, clarifies the obligations of firefighters for the future.  For members that don’t know, on Friday 10 November this year the New South Wales Industrial Relations Court found the Department criminally responsible for a range of breaches to Occupational Health and Safety laws.[i] WorkCover’s prosecution centred on the Department’s failure ‘to ensure the health, safety and welfare of its employees and other people’ present during a silo fire and subsequent explosion at Rutherford in 1999 where 3 silo workers died and a firefighter was seriously injured.

While the Department or WorkCover may appeal this decision, historically, this case marks the first time the Department has ever been prosecuted for breaches of the Occupational Health and Safety Act. It also provides an accurate application of the Court’s approach to the Department’s immunity from legal action that is provided for by s78 of the Fire Brigades Act (FBA). Of comfort to all of us, this decision also confirms who WorkCover as a prosecutor looks to – (and who can be held responsible) when things go bad on the fire ground. These three points are elaborated on below.

 

A SAD FIRST FOR THE DEPARTMENT

While a range of public agencies including the police[ii], health services[iii] and RailCorp[iv] have been prosecuted for failing to provide a safe workplace for their employees or other people, this decision marks the first time that the Department’s actions have been placed before a criminal Court – and found to be wanting. This decision will be likely to result in considerable fines against the Department as each offence carries a maximum penalty of $550,000.   As a guide, in the previous WorkCover prosecution against the silo company itself[v], the Commission ordered:

• The company; Caines Pty Limited (in liquidation) fined $400,000
• Frank Heagney; the general manager of Caines fined $22,000
• Graham Hislop; the managing director of Caines fined $27,000

On the basis of the fines dished out to the company, the Department would be wise to prepare for considerable fines as well. As importantly though, this conviction will also result in a significant dent in the Department’s credibility and stiffer penalties should a similar event occur in the future. The Court will be hearing just what the Department and WorkCover consider to be appropriate sentences on 25 & 26 June 2007. Your Union is considering whether or not to be involved with this process and will keep you informed either way.

This conviction also serves as a warning to those at the top of organisations that they can be held responsible for their actions and inactions. Of direct concern to the Commissioner and other senior managers this decision shows the Department’s good faith defence is unlikely to offer any protection in similar circumstances.

 

LIMITS TO THE DEPARTMENT’S ‘GOOD FAITH’ DEFENCE – AND YOURS?

In the future, the Department would be foolish to try and repeat its argument that it has an absolute and unlimited immunity from being prosecuted as a consequence of s78 of the Fire Brigades Act which provides;

A … thing done, or omitted to be done, by …any member of a fire brigade…does not, if the matter or thing was done, or omitted to be done, in good faith for the purposes of executing this or any other Act, subject such a person personally, or the Crown, to any action, liability, claim or demand.

The assertion that s78 protected the Department from all civil and criminal prosecutions, was rejected by Justice Boland outright. Instead Justice Boland considered the immunity in s78 from separate criminal and civil law viewpoints. From a criminal law perspective (where the standard of proof required for a conviction is high – i.e. ‘beyond reasonable doubt’ and where imprisonment can be a possible punishment) Justice Boland found:

My tentative view is that s 78 of the Fire Brigades Act does not provide a general immunity from criminal liability. However, it is unnecessary for me to decide this point in light of my later finding that the alleged failures by the defendant to ensure the safety on employees and non-employees were not matters or things done in good faith for the purposes of executing the Fire Brigades Act or any other Act.

From a civil law perspective (where the standard of proof required for a conviction is lower – i.e. ‘on the balance of probabilities’ and where imprisonment cannot be a possible punishment) Justice Boland followed High Court case precedent and used an example of fire ground behaviour and then applied the FBA immunity to it, As Justice Boland said:

If an officer in charge were to pull down a building to prevent the spread of a fire pursuant to the power vested in the officer under s 16(2) of the Fire Brigades Act, if it were done in good faith, albeit negligently, it is arguable that would be a matter or thing done for the purpose of executing the Act and immunity from civil liability would apply. But an act not directly authorised by the statute, that is, an act that was not done for the specific purpose of carrying out or implementing or performing or accomplishing an express (and perhaps implied) provision of the Fire Brigades Act or any other Act would not attract immunity.

On that basis, the essence of this decision is that provided the activity completed is clearly related to fulfilling the obligations under Fire Brigades Act – a civil immunity will, generally,  continue to apply.  But since the measures taken (and not taken) prior to the Rutherford disaster were not related to the Act–the immunity defence failed.  Hence as Justice Boland said:

“…the alleged failures by the defendant in these proceedings could not, in the context of an exemption from liability provision of the kind contained in s 78, properly be seen as coming within the description of a matter or thing done … in good faith for the purposes of executing the Fire Brigades Act, which contains nothing at all about any of the failures alleged or admitted in these proceedings.

These failures were numerous. They boiled down to the fact that the Department was chronically unprepared and failed to resource and equip its firefighters who would be responding to silo fires.  Hence  Justice Boland was satisfied beyond reasonable doubt that:

“…the defendant failed to provide a safe system of work. In order for there to be in existence a system of work that is safe and without risk … there needs to be a scheme or method in place for doing things in an organised or structured way that will ensure the safety of employees and other persons at a defendant’s place of work. Whilst the defendant was completely aware of the risks associated with the seed oil extraction process, including the risks of spontaneous combustion and dust explosions associated with seed storage, seedcake and seed meal and whilst there were some indications that the defendant had taken steps to plan in relation to the prevention and/or the fighting of fires in seed oil extraction plants, those steps fell well short of providing a system that was safe and without risk. As the prosecution submitted:

…the very nature of the defendant’s duties under the Fire Brigade Act that means that the fire brigade has to be prepared for all manner of risks for the health and safety of its employees that might arise in the course of its employees’ performing fire prevention and fire suppression duties or, for that matter, Hazmat response, pursuant to section 11 of the Fire Brigade Act.

Justice Boland then gave a frank assessment of the Department’s approach to designing a safe system of work and indicated that the basic and dangerous role of the Fire Brigade requires it to properly plan for dangerous events. Justice Boland continued:

“As an organisation required to be prepared for all manner of risks, the steps the defendant had put in place for dealing with fires in seed oil extraction plants were ad hoc and in so far as ensuring safety was concerned, ineffective. A safe system of work will not usually come about by accident but will involve investigation and careful planning. Putting in place a safe system of work will involve actively searching out and eliminating, where reasonably practicable, any risks to safety.

In my opinion, the defendant had failed to adequately turn its corporate mind to putting in place a safe system with respect to the prevention and/or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/or fighting of fires in seed meal storage facilities…”

The use of the phrase ‘corporate mind’ above is not accidental.  That’s because the law in force today as well as the law in force in 1999 is specifically directed at employers and not employees in circumstances where damage, injury or death occurs at, or as a consequence of, work. It follows that members should not regard the Rutherford decision as in anyway increasing the possibility of civil or criminal punishment if they do their job and things go wrong. That is because the law of corporate responsibility is rightly aimed (and Rutherford proves it) – at the corporate mind of organisations – and not at the actions of workers.  Nonetheless, an analysis of the types of liability that firefighters may face is provided below.

 

ASSESSING THE LIABILITY OF FIREFIGHTERS IN LIGHT OF RUTHERFORD.

While the Rutherford decision confirms that the immunity provided for firefighters in the Fire Brigades Act is limited, it does not establish that firefighters are at any more risk than currently is the case of prosecution for simply turning out and putting out fires. In short something more such as being reckless, showing wanton disregard for safety procedures, or being very slapdash perhaps say to the point of drunkenness, is required.

From a civil law perspective, both the immunity in the Fire Brigades Act and the Employees Liability Act 1991 provide protection for firefighters.  Under section 3&5 of the Employee Liability Act, unless the employee engages in ‘serious and wilful misconduct’, they are not liable for any civil offence (referred to as a “tort” in the Act) if the employer is found to be liable.  Additionally, in line with s3(1)(b) of that Act, employers are required to indemnify employees for all civil law liability that arises during the course of employment.

Under the criminal law, Justice Boland has given an indication that the Fire Brigades Act immunity does not apply. That means firefighters have not been issued with a licence to kill, or assault, or steal, or maliciously damage property – and rightly so.

That leaves the Occupational Health and Safety Act as a means of establishing legal liability. While s20 of the OH&S Act does provide for fines in circumstances where ‘employees do not take reasonable care for the health and safety of people who are at the employee’s place of work or co-operate with his or her employer or other person so far as is necessary to enable compliance with the OH&S Act’ those fines are extremely rare and typically involve a form of recklessness and in all cases are limited to a penalty of $3300 for a first offence.   The scarce number of instances where this offence has been prosecuted (four at last count throughout NSW and never a firefighter) is in part explained by WorkCover’s focus on making the boss responsible for injury and death at work.  Hence, Part 5.19 of Workcover’s Prosecution Policy [vi] states:

“WorkCover’s policy is to actively pursue both corporations and those concerned in the management of those corporations for breaches of the OHS and workers compensation legislation.”

Overall then, the Rutherford decision should be welcomed and not feared by firefighters. Whilst it remains possible for firefighters to be called to account under the criminal law and s20 of the OH&S Act, these circumstances are yet to happen in connection with work on the fire ground. Alternatively, firefighters appear to be protected from the civil law, in a wide range of circumstances – provided they are not guilty of ‘serious and wilful misconduct’. Ultimately, firefighters should continue as normal – ensuring the Department is responsible for providing a safe system of work by participating in and supporting the Union and working skillfully and co-operatively together, with comrades on the fire ground..

 

Simon Flynn

State Secretary