Following findings in the Coronial inquest arising from the Dreamworld tragedy that have criticised the operating company's safety systems and standards, the operating company has been referred to prosecuting authorities. However, the question remains, are
Background
The Queensland Coroners Court has this week published its findings into the death of four members of the public at Dreamworld in
In response, the
Imprisonment of officers in large companies - a bridge too far?
Coroner McDougall, in the Dreamworld inquest, said that its safety management system was 'rudimentary and deficient', finding that 'such a culpable culture can exist only when leadership from the Board down are careless in respect of safety'. Can comments like these translate into a successful prosecution, or imprisonment, of an officer of a large entity, such as
The industrial manslaughter provisions of the
Outside of industrial manslaughter, an officer or worker who breaches a WHS duty, and is reckless, can face up to five years imprisonment. This offence has existed in
Where prosecutions, even those not involving recklessness, are taken against officers the cases usually involve a small business where directors are actually involved in day-to-day decisions. As the ' Boland Review' found, in
'The identification of a grossly negligent individual who is the embodiment of a small company is not as problematic, as with small companies it is often the case that the director will be actively involved in day-to-day operations.'
The WHS laws, as currently drafted, make it more difficult for an officer of a large entity, who is not involved directly with the day-to-day operations, to be found liable. The 'recklessness' offence requires the conduct of the officer to expose an individual to a risk of death or serious injury or illness. A prosecutor must prove this element beyond reasonable doubt. From a legal perspective, this is a challenging task for officers who operate well above day-to-day decision-making.
Despite the introduction of the industrial manslaughter offence, WHS regulators are yet to truly test the strength of
Footnote
1 R v Lavin [2019] QCA 109.
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