The amendments will increase penalties for businesses which commit safety offences under the Occupational Health and Safety Act 1984 (OSH Act) for the first time since 2004.
The new penalties will be consistent with the national model Work Health and Safety Act (Model Act), with a further increase for inflation (1.14 per cent) from 2010.
Harsher penalties for offenders include increasing the maximum term of imprisonment from two to five years.
First offence fines for body corporate offenders will also drastically increase, Level 4 first time offences will increase from $500,000 to more than $2.7 million.
Level 1 penalties will increase from $50,000 to $456,000.
New Work Health and Safety Bill for WA
A green light has been given to develop a modernised Work Health and Safety (WHS) Bill for Western Australia.
According to Bill Johnston, Minister for Mines and Petroleum; Commerce and Industrial Relations, “occupational, health and safety legislation in WA is 30 years old and is out of date”. “This is why we’re taking action – the new Bill is an important step in updating and improving the regulation of workplace health and safety.”
The WA Bill will be based on the national Work Health and Safety Act. It is intended that this Bill will improve consistency with the rest of Australia and provide the primary legislation for workplace safety and health across all Western Australian industries.
New WA WHS Bill to replace 3 Acts
Consistent with the McGowan Government’s commitment to reduce red tape, the Bill will replace three Acts:
1. Occupational Safety and Health Act 1984
2. Mines Safety and Inspection Act 1994; and
3. Petroleum and Geothermal Energy Safety Levies Act 2011.
The new WA Bill will be supported by a number of industry specific regulations to suit the State’s unique conditions, enabling the resources sector to continue to use a risk-based approach
Mistreated by CEO - $1.46m payout
A supreme court found an employer vicariously liable for the psychiatric injury to a member of staff who was awarded just under $1.46M
A woman with a career in nursing became District Director of Nursing (DDON) for the Cape
York Health Service in January 2008, based at Weipa. By January 2009, she had to deal with a difficult
interpersonal relationship between a nurse unit manager (NUM) and another senior staff
member.
On the advice of her superior, the DDON referred the
staff members to mediation by an external agency, PsyCare.
In January 2010, a new CEO arrived at Weipa. The NUM was off work with a shoulder injury. The DDON apprised the CEO of the complex interpersonal conflict involving the NUM and of the PsyCare recommendations. She also reported that the conflict had left her feeling emotionally fragile. The CEO, however, did not act on the PsyCare recommendations.
At the workshop the CEO publicly rebuked the DDON in a humiliating way for comments about a session the CEO had not attended.
At the end of July 2010, the CEO again publicly berated the DDON, swearing at her, in a teleconference meeting of a number of executives.
In October 2010, the CEO isolated the DDON by flippantly dismissing her comments and
excluding her from a meeting with another director of nursing. The CEO asked her to organise some office
moves, but then decided to override her decision with a public snub in another meeting.
The NUM had returned to work from her
sick leave, albeit to a temporary position where she was not reporting to the DDON. However, on 23 March
2010, she submitted eight workplace incident forms alleging bullying and harassment by the DDON in relation
to the 2009 conflict.
The DDON did not hear about the forms until 14 May 2010, when she was told
they were just vexatious and nothing to worry about. She did not get a copy of them until 7 July 2010, when
she found out just how malicious and false they were.
The CEO told her she was overreacting and reassured her she would ‘keep her
safe’. Yet, the CEO did not deal with the allegations even though the employer had a policy to investigate
complaints, and even though she knew that delaying the matter perpetuated the distress they had caused the
DDON.
At the end of July 2010, the CEO again publicly berated the DDON, swearing
at her, in a teleconference meeting of a number of executives.
In August 2010, the NUM submitted a formal grievance complaining that the
PsyCare report had been flawed and that she had been treated unfairly. She specifically targeted the DDON
and alleged bullying and harassment, but the CEO again took no action.
In October 2010, the CEO isolated the DDON by flippantly dismissing her
comments and excluding her from a meeting with another director of nursing. The CEO asked her to organise
some office moves, but then decided to override her decision with a public snub in another
meeting.
The CEO also refused to discuss a matter of concern to the DDON privately
outside the meeting, although she had just permitted another staff member to do just that. And, in another
isolation move, the CEO removed the risk management function from the DDON’s area of
responsibility.
The DDON had told the CEO she would not feel safe if the NUM returned to
her previous position where the DDON would be her line manager. Despite having promised her the NUM would
not be allowed to return, the CEO brought her back in January 2011, and did so without consulting the
DDON.
The DDON became more and more anxious and depressed, sleeping poorly and
easily becoming tearful. Her last day at work was 17 January 2011. She was 52 years old. She sought medical
assistance and was on workers compensation until 27 December 2012.
The DDON brought an action in the Supreme Court of
Queensland for damages in negligence against her employer. She pleaded that from about March 2010 to 17
January 2011, she had been subjected to management action which harassed, mistreated, devalued and
undermined her. As a result, she had suffered a psychiatric injury, namely an adjustment disorder with
anxiety and depressed mood, which had become chronic.
The judge’s conclusion was that the DDON had proved her case in negligence. The employer had breached its
duty to take reasonable care to avoid psychiatric injury to her. It had failed to take timely action on the
complaints by the NUM and to prevent the course of managerial mistreatment by the CEO, for which failures
the employer was vicariously liable.
The damages assessed covered general damages, past and
future economic loss, special damages, interests, past and future loss of superannuation and future
expenses. The DDON was awarded the sum of $1,468,991.
https://archive.sclqld.org.au/qjudgment/2017/QSC17-165.pdf
Web sites inaccessible to visually impaired users
Three Illinois (USA) companies are accused of maintaining websites visually impaired consumers allegedly can't use in an age when online shopping is as important as walking into a store.
A California woman has filed lawsuits against Kmart, Empire Today and Ace Hardware, alleging that running websites and mobile apps that blind and visually impaired people can't read also means denying potential customers products and services, a violation of the Americans with Disabilities Act.
The three retailers named in the suits, filed last week in U.S. District Court in Chicago, join a growing list of big-name companies that have faced similar allegations, including Target, Netflix, and Illinois-based Grubhub and McDonald's.
Passed in 1990, the ADA predates most internet operations. Now livelihoods often depend on the internet, and commerce increasingly is taking place online. Some say the law needs to catch up to that reality, and since it hasn't, companies are leaving people out. Retailers, on the other hand, argue that constantly changing technology to keep websites accessible isn't quite as easy as it sounds.
Blind and visually impaired people use a combination of keyboard functions and screen-reading software to navigate websites, according to the lawsuits.
Under the Obama administration, the U.S. Department of Justice was working to establish standards for how to make websites accessible, a move it believed was "crucial to achieving the ADA's mandate," according to its website. In July, however, the department moved that task to its "inactive" list.
Two blind and visually impaired California residents sued Chicago-based Grubhub in June, alleging the food delivery company's website and app were inaccessible to them. The plaintiffs could not order food, the lawsuit alleged.
One of the plaintiffs in that case also sued McDonald's in April over similar allegations. The complaint alleged that because the plaintiff wasn't able to use the website, he couldn't find locations, see menu descriptions or find coupons.
Both cases are pending.
To what extent did the workers actions contribute to his terminal condition?
The deceased had smoked for a long period before commencing employment with the Defendant as a general decorator. Approximately 20% of his working time was spent in conditions where there was asbestos dust.
It was agreed by the parties the Claimant's death was caused by the combined effects of smoking (from the age of 14 until his death aged 74) and exposure to asbestos dust whilst working for the Defendant during the period 1966 and 1986. Post mortem lung analysis showed an asbestos fibre count above the level at which the risk of contracting lung cancer doubles.
The Court of Appeal, in the case of Blackmore v Department for Communities & Local Government [2017] EWCA Civ 1136, took a holistic approach in calculating contributory negligence in lung cancer claims; assessing 'blameworthiness' rather than a purely epidemiological approach of the relative risk of developing lung cancer.
The question of contributory negligence should be understood i.e. did the worker contribute to his terminal condition and, if so, to what extent.
The court held contributory negligence should not be assessed by reference to a mathematical calculation based on the relative risks from smoking and asbestos exposure alone, as argued by the Defendant.
The contributory negligence appraisal was largely influenced by policy considerations and the general practice in employers' liability cases that where there is a breach of statutory duty the contributory negligence figure cannot exceed 50%.
Lung cancer is an indivisible disease and there are possibly other factors which could be taken into account and contributed to the condition, such as genetics. Accordingly, although the risk from smoking was between double and treble the risk from asbestos exposure, having considered all the relevant factors, the court assessed contributory negligence at 30%.
The Defendant was granted permission to appeal. It contended that from a mathematical perspective considering relative risks, the discount for contributory negligence should be between 85% and 90%, as the far greater share of the risk was caused by smoking.
The Appeal
The court held the concept of responsibility under section 1 of the Law Reform (Contributory Negligence) Act 1945 ('the 1945 Act') is not limited to causation, but also encompasses blameworthiness.
The Defendant was under a statutory duty to protect the Claimant and failed to do so. The legislative intention of the 1945 Act was to create a general rule capable of flexible application to all types of cases. Furthermore it would be incorrect to draw a general distinction between a claimant who contributes to his injury by conduct related to work and one who contributes to his injury by conduct not related to work.
The first instance judge was therefore correct not to undertake a purely mathematical assessment of the relative risk of contracting lung cancer. In undertaking the apportionment, appropriate weight had been given to competing considerations and underlying policies.
It was noted that had the assessment only considered relative risks, it would not have differentiated between the Defendant's blameworthiness in exposing employees to asbestos and that of the deceased in smoking, which would have been wrong in principle.
The judge was right to attach substantial weight to the Defendant's blameworthiness in exposing the deceased to asbestos in breach of a strict statutory duty when the dangers were well known. By contrast, less blame attached to the deceased's conduct in continuing to smoke after the dangers to health became known. It was also necessary to consider the period of 'innocent' smoking (when the risks weren't known) and the medical uncertainty of that earlier period. Accordingly the judge's apportionment of contributory negligence at 30% was well within the range of options open to him.
