May 26 2012

Enforcing Safety Law – Closing the Door After the Horse has Bolted

Safety Law - Exploded VanOn the morning of 22 October 2009 Luke Clark, a 17-year-old apprentice plumber and another apprentice approached their employer’s van, parked in his driveway. Luke pressed the remote door lock to open the van. The picture to the left shows the result – the van exploded with enough force to spread debris more than 100 metres from the blast site, explode windows and damage cars parked nearby. Fortunately Luke, and his workmate suffered only minor injuries and should consider themselves extremely lucky.

The cause of the explosion was acetylene gas that escaped from a leaking cylinder stored in the van. Activating the remote locking system provided an ignition source for the trapped gas resulting in the explosion.

On 23 May 2011, Michael Ponton, the owner of the business employing the apprentices, was convicted of failing to provide a safe workplace and was fined $AU 25 000. The judgement is not available on the net so it is not possible to understand the reasons for this judgement. However, I wonder what the penalty would have been had there been a death or serious injury as a result of this? I would guess the penalties would have been far more severe but is that the intention of safety law?

Principles of Safety Law

Safety law is based around concepts of prevention – what can  or should be done to prevent injuries and deaths from happening in workplaces. Employers are expected to be aware of the hazards in the workplaces they manage and to have suitable precautions in place to prevent injuries from happening.  Employees are expected to work in a way that doesn’t threaten their own or other people’s safety and to abide by instructions given by their employer to prevent injuries from happening. These are not reactive requirements – employers are not so much required to introduce precautions  or employees to change their work practices after someone’s been injured as they are expected to take action  to reduce the possibility of injuries happening. It’s a predictive requirement.

Therefore, breaches of safety law are failures to take that predictive action irrespective of whether or not someone is injured and irrespective of the severity of those injuries. All to often though, courts impose penalties based on the results of a breach of safety law. The more severe the results, the more severe the penalty (and, of course the inverse).

Enforcing Safety Law

If one of the functions of the legal system is to reflect a society’s expectations and penalise those who do not conform to those expectations then what message are these types of judgements giving? That it’s OK to breach safety laws provided no one gets killed or seriously injured? Is this the level of safety expected by the community? The outcry after disasters such as the Deepwater Horizon or the Pine River Mine or any of the many other similar events is usually “why wasn’t more done to prevent these things from happening?” One of the reasons why is that the legal system does not enforce a preventative approach to safety. Instead it’s an approach that focuses on the consequences, its a reactive position of closing the stable door after the horse has bolted. And these reactive positions are invariably dependent on luck.

How lucky were the two apprentices in the incident described above? How lucky were the residents of the adjacent houses? And this is repeated in workplaces across the world, every day. People narrowly avoid being severely injured or killed by pure luck. Is the legal system responsible for this? Not solely, but it does go some way to explaining why business resist taking preventative action to avoid workplace injuries recommended by safety professionals. It does provide some explanation why regulators are unwilling to take more vigorous action to enforce the preventative expectations of safety law.

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