Health (and safety) is other people – the wide reach of section 19(2) of the harmonised WHS Acts

Jean-Paul Sartre, as it turns out, never said, “Hell is other people” (although he did use that line in his 1944 play called Huis Clos, or No Exit).  Nor, as far as our researches have disclosed, did Sartre have much to say about work health and safety.  This is perhaps surprising, given the importance of duties which are owed under the harmonised WHS legislation to “other persons” (which is, in turn, just a lawyerly way of saying, “other people”).

Section 19 of the harmonised WHS Acts is entitled “Primary duty of care”, and the section has two limbs.  The first limb, section 19(1), sets out a duty to ensure, so far as is reasonably practicable, the health and safety of workers who are engaged (or influenced, or directed) in the performance of work. The second limb, section 19(2) is as follows:

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. [our emphasis]

So who, then, are these “other persons” to whom safety obligations are owed?  A recently published decision of the District Court of New South Wales has confirmed that “other persons” extends not just to non-workers in your workplace, but anyone who is likely to be affected by the performance of work in your business.

The question arose in the context of a prosecution under the New South Wales WHS Act.  A horse float was taken to the defendant (a vehicle repairer) to be repaired.  In the course of those repairs, the oil level in the hydraulic system which controlled the horse float’s tailgate became low (with the consequence that the tailgate could fall to the ground when unlocked).  Following the repairs, the horse float was returned to its owner without the hydraulic system having been properly checked.  Subsequently, an employee of the horse float’s owner was found deceased under the tailgate of the horse float, apparently having been killed  when the tailgate fell on him.

So, was the employee of the horse float owner an “other person” for whose safety the defendant was responsible? The defendant argued that section 19(2) only applied to “other persons” at the defendant’s workplace, not to the world at large.  Otherwise, said the defendant, safety duties could extend “for an indeterminate time to an indeterminate class”.

However, the prosecutor pointed out that there was no language in section 19(2) which imposed a geographical limitation (that is, limiting duties to a particular workplace) or a temporal limitation (that is, limiting duties to the period of time in which work was actually being carried out).  The Court accepted this argument.  The Court also said that the duty under section 19(2) was not owed “to the world at large” because it was limited to those “other persons”  who were in proximity to the risk created by the work carried out.  In the present case, the employees of the horse float’s owner were in proximity to the risk created by the tailgate, so they were “other persons” for the purposes of the vehicle repairer’s WHS obligations.  In making that finding, the Court said:

“The requirement that a [defendant] should take reasonably practicable steps to protect against risk to other persons created by things like the inadequate repair of vehicles or the unsafe transport of materials, may be considered to be onerous but is not beyond the stated objects of the Act.”

The lesson is that an effective safety framework needs to identify the “other persons” who might be put at risk by work carried on in a business (and having identified them, needs to consider what steps are necessary to ensure, as far as reasonably practicable, their safety).  This case emphasises that you cannot assume that safety obligations cease at the threshold of your premises (or cease once work is completed fir the day, or when a particular task is finished).

In addition, the due diligence obligations under the WHS Act require officers to be aware of safety risks in the business.  Just as directors need financial literacy, and processes for considering and receiving financial information concerning the business, they also need safety literacy, and processes for considering and receiving safety information.

So, if you can’t answer the questions that this case poses for your business, there’s no time like the present to commit to changing that.  You see, Jean-Paul Sartre did also say that “commitment is an act, not a word” – so maybe he did have an idea or two about work health and safety, after all.

For more on our work health and safety capabilities, contact Angus Macinnis or Leonard Lozina

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September 9
Work health and safety