Joyce, Samuel --- "A short history of industrial manslaughter prosecutions" [2017] PrecedentAULA 61; (2017) 142 Precedent 46

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A SHORT HISTORY OF INDUSTRIAL MANSLAUGHTER PROSECUTIONS

By Samuel Joyce

INTRODUCTION

It’s easy to think that workplace safety has only been a hot-button issue in the last 30 years. However, as discussed here, matters of workplace safety, death and liability have in fact been contested for over a century.

COMMON LAW ORIGINS

The old common law rule was that an indictment could not lie against a corporation except upon a charge of criminal libel where the corporation had published the libelous material.^[1] A corporation, as an abstraction, cannot be imprisoned and cannot therefore be guilty of murder.^[2] On that basis, an indictment alleging manslaughter against a corporation in the United Kingdom (UK) was quashed in 1927.^[3]

By the 19th century, at common law, manslaughter could exist where a death was caused by an act which is not accompanied by an intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder.^[4] This manslaughter – involuntary manslaughter – is committed by doing an unlawful and dangerous act carrying with it an appreciable risk of serious injury; and manslaughter by criminal negligence.^[5] In sentencing for manslaughter but not mandating imprisonment, involuntary manslaughter provided the theoretical basis upon which a corporation could be convicted of manslaughter.

The problem standing in the way of indicting a corporation for manslaughter was the question of how the law was to impute criminal responsibility to a corporation for an act of its agent or servant. In civil law, a similar problem arose. For a corporation to be liable in tort for the acts of its agents, it was necessary to prove that the person doing an impugned act was the corporation’s ‘directing mind and will’ or ‘the ego and centre of its personality’ such that the actor is somebody for whom the company is liable because his or her action is the very action of the company itself.^[6] This passage provided the conceptual basis for corporate criminal responsibility to develop in the 20th century.^[7]

In 1944, Kent & Sussex Contractors was charged on information that, with intent to deceive, it produced documents and furnished information on returns which were false in material particulars. The returns were signed by the transport manager of the company. The corporation argued that the offences charged required for their commission an act of will or state of mind which a body corporate could not have.^[8] The information was dismissed on that basis at first instance and the matter was sent to the Kings Bench for determination on a special case. Hallett J, noting that there had been a development in the courts’ attitude to the theoretical difficulty of imputing criminal intent to fictitious persons, drew on dicta from nineteenth century cases^[9] to hold that it made ‘good sense and good law’ that a corporation could not escape the consequences which would follow to an individual by showing that they are a not a natural person. Viscount Caldecote LCJ and Macnaghten J agreed in different terms.^[10]

That same year, the Crown presented an indictment at the Kent Assizes purporting to charge ICR Haulage Ltd with common law conspiracy to defraud. The company was a limited company with two directors. It argued that not being a natural person, it could not have a mind and, therefore, the indictment against it for an offence which required proof of a dishonest or criminal mind must be invalid. The Court at first instance dismissed a motion to quash the indictment and the company was subsequently convicted by the jury. The company appealed to the Court of Criminal Appeal.^[11] The Court unanimously affirmed the decision in Kent & Sussex Contractors and held that a company could validly be the subject of an indictment. In so doing, it specifically implied by way of dicta that an indictment alleging manslaughter against a corporation could be presented.^[12]

Kent & Sussex Contractors^[13] and ICR Haulage Ltd^[14] were followed and approved in late 1944 by Moore v Bresler^[15] and the principle that an indictment alleging an offence to which it was necessary to prove a specific mens rea could stand against a corporation developed on a case by case basis.^[16] So, in 1965 the Crown presented an indictment at the Glamorgan Assizes alleging manslaughter against the Northern Strip Mining (Construction) Co Ltd.^[17] The validity of the indictment was not questioned and the judge directed the jury that it was the Crown’s task to show that the accused company, in the person of the managing director, was guilty of such a degree of negligence that it amounted to a reckless disregard for the life and limbs of his workmen. The company was acquitted.^[18]

Until 1972, it seems that the appellate courts had considered only cases where the mens rea was imputed to the corporation on the basis of direct evidence of the corporation’s act, namely documents demonstrating fraud and criminal libel. The problem remained of how the Crown could prove an actus reus on behalf of a company in circumstances where there was no direct evidence of an instruction to do the act alleged.

Then, in December 1969, a Tesco Supermarkets shop assistant mistakenly placed packs of full-priced soap powder on a shelf designated for a discounted version. Her manager failed to ensure that the powder was available at the advertised price and signed his daily return to indicate that the shelves were properly stocked. Tesco Supermarkets was charged with an offence against the Trade Descriptions Act 1968 (UK) by offering goods for sale to consumers at a price at which they could not be bought. Tesco pleaded a defence of due diligence. The question became whether the manager's lack of due diligence could be imputed to the company. In 1972, Lord Reid in the House of Lords held that in order to prove the guilt of a company through the act of an employee, they must be shown to be acting as the company such that s/he is the embodiment of it. If an actor is acting as the company and is shown to have done the actus reus with the requisite state of mind, then his guilt is the company’s guilt.^[19]

Tesco Supermarkets Ltd v Nattrass^[20] created a legal fiction. It added a layer of complexity to corporate criminal proceedings. In order to prove the guilt of a company on indictment, it was necessary to show that at the time an agent did the impugned act and held the intent, they did so as the company. This concept, the ‘identification doctrine’ of corporate criminal responsibility, has two notable features. First, it is a concept of what has been described as ‘Byzantine complexity’.^[21] Secondly, it has the practical effect of quarantining criminal liability within a corporation’s board, senior executive, or some other person to whom the function of the board has been fully (and provably by admissible evidence) delegated.^[22] The impact on corporate criminal responsibility was profound.

THE ADVENT OF OCCUPATIONAL HEALTH AND SAFETY LEGISLATION: THE 1970s and 1980s

By 1972, occupational health and safety had become topical. That year the UK Committee on Safety and Health at Work, chaired by Lord Robens, published its seminal Report into Safety and Health at Work^[23] which gave rise to the now familiar occupational health and safety (OHS) laws in the common law world (‘the Robens legislation’).^[24] In 1981, Magistrate Williams conducted his own review in a report to the New South Wales (NSW) Government.^[25] At its core, the Robens legislation imposed a series of duties upon employers, and created a series of civil and criminal sanctions for breaches. Liability would extend to employees down the chain of command.

On 9 May 1983, an employee of the State Rail Authority of NSW met his death through electrocution while working on its foundry. The foundry was serviced by electricity supplied on 600 volt and 450 volt mains. In order to enable roofing work to be carried out, the employees had to work in comparatively close proximity to the mains. The deceased made contact with bare clamps of the terminals of a sub-main, fell upon its cables, and the current caused his death.^[26]

In the first prosecution under the new Robens legislation,^[27] charges were brought under s17 of the Occupational Health and Safety Act 1983 (NSW) (OH&S Act) for breaches of duties owed to the deceased employee rather than on indictment for manslaughter. In Collins v State Rail Authority of NSW (Collins),^[28] the NSW Court of Criminal Appeal unanimously held that the common law as pronounced in Tesco Supermarkets Ltd v Nattrass applied to the OH&S Act. In consequence, the Stat Rail Authority was acquitted on the basis that, because it had delegated powers to managers to develop and implement safety and health policies for the premises, it was not liable for the death.^[29] The manager was not the controlling mind of the Authority.

This decision shocked reformers.^[30] Provisions that it had been thought would do away with the difficulties of bringing criminal charges against corporations on indictment were held to be subject to the identification doctrine. It was this decision that sowed the seed of reform in the area of industrial homicide, and it was the germination of that seed which would in time mature into the Crimes (Industrial Manslaughter) Act 2003 (ACT), the first Australian legislation of its kind.

THE 1990s

By the 1990s, each state and territory had passed legislation to amend their Robens legislation to remedy the barriers established by Collins.^[31] At the same time, the English courts pulled back the identification doctrine as it applied to the Robens legislation.^[32] In 1995, the Court of Appeal held that the identification doctrine did not apply to the British Health and Safety at Work Act 1974 (UK).^[33]

The late 1980s and early 1990s saw a series of workplace disasters in Australia which resulted in workers’ deaths.^[34] Media attention focused on the difficulties associated with obtaining convictions of companies for manslaughter, and the perceived inadequacy of civil penalties in circumstances where the public believed that there had been gross negligence requiring meaningful punishment.^[35] Academics, too, began to debate whether prosecutions for workplace deaths belonged within the general criminal law, or were properly housed within the existing Robens legislation.^[36]

In Victoria in 1994, Teague J entered the first judgment of conviction in Australia against a company for manslaughter by criminal negligence.^[37] The company pleaded guilty and was fined $120,000.^[38] It was a small company, with two directors, so the identification doctrine was unlikely to have been a fact in issue.^[39]

Also in Victoria in the same year, Hampel J directed a verdict of acquittal of a corporation for manslaughter on the basis that negligent acts of a plant engineer and his safety manager were not criminal, and in any event, were personal failures to act, not acts intended to give effect to the will of the accused company.^[40] A subsequent DPP Reference to the Supreme Court of Victoria’s Court of Appeal was withdrawn.^[41]

Meanwhile, in Queensland in R v O’Connor, a director of a small company was convicted of manslaughter and imprisoned for 18 months.^[42] No further information could be found on this successful prosecution.

THE 2000s

In late November 2001, the Bracks Government introduced the Crimes (Workplace Deaths & Serious Injuries) Bill 2001 into the Victorian Parliament.^[43]

The Bill was reintroduced in 2003.^[44] The legislation attempted to insert into the Crimes Act 1958 (Vic) a new offence of ‘corporate manslaughter’. The Legislative Council blocked the legislation in 2002 and upon the government winning control of both houses of the Victorian Parliament, it did not reintroduce the Bill.^[45] In 2004, the so-called Maxwell Report reviewed Victorian OHS law and recommended against legislating for a workplace death offence within OHS legislation because, since the Robens legislation, there could be a punishable breach of an OHS duty whether or not that breach had caused death and no question of causation arose under that legislation.^[46] That recommendation was accepted.

On 27 November 2003, the Legislative Assembly of the ACT passed the Crimes (Industrial Manslaughter) Act 2003 (ACT). That Act amended the Crimes Act 1900 (ACT) to create a specific offence of ‘industrial manslaughter’. It purported to create a new species of manslaughter, able to be committed only by an ‘employer’ or a ‘senior officer’ of that employer. The definitions are broad, and contemplate both personal and direct corporate liability.^[47]

In June 2004 in NSW, in response to the ACT legislation and to the debate in Victoria, Professor McCallum, Peter Hall QC and others prepared an advice in relation to workplace death and OHS legislation in NSW.^[48] They considered the ACT legislation and moves then afoot in Queensland and Victoria to introduce similar legislation. They recommended against the ACT approach and that a stand-alone provision be adopted which would provide for additional penalties under the existing legislation where a death had occurred as a result of an employer breaching the Act.^[49] In other words, they suggested a hybrid regime whereby the fact of a death would aggravate the penalty.

The NSW Carr Government introduced a bill that would implement this recommendation in 2004, but this was not pursued and instead, a new s32A was introduced into the Robens legislation which created a ‘workplace deaths’ offence. That offence provided a corporation, or the director or manager of the corporation, would be guilty of an offence where their conduct caused the death of another person at work in circumstances where they owe a duty under OHS legislation and they were reckless as to the danger of death or serious injury.^[50] Curiously, the identification doctrine was assumed to have applied to the section.^[51]

Convictions for manslaughter proper against corporations continued to remain a possibility. They are rare but not unknown. In 2008 in NSW, the operator of a small business and one of his employees were convicted on their pleas of guilty to manslaughter by criminal negligence following the death of a person who assisted in the running of the business.^[52] The owner was sentenced to two years imprisonment, suspended on terms; while the charge against the employee was dismissed without recording a conviction.^[53] The offences occurred prior to the enactment of the ‘workplace death’ offence. The sentencing judge commented that had the accused been prosecuted under that provision, they would have been exposed to substantially lower penalties.^[54] In July 2009, an Australian boat-builder was found guilty in the NSW District Court after trial by jury of manslaughter by omission, when a boat built by his firm sank killing four of the six crew.^[55] The jury found the builder guilty of manslaughter by criminal negligence in allowing the delivery of the boat with a major fault. The builder was sentenced to three years imprisonment. Later that year the NSW Court of Criminal Appeal quashed the convictions and directed verdicts of acquittal, determining among other things that the verdict was unreasonable.^[56]

In 2009, the NSW Law Reform Commission was asked to assess the effectiveness of the new ‘workplace death’ offence. The Commission wryly noted that it was impossible to respond to its terms of reference because of a lack of imperial data; there had been no prosecutions under the new offence notwithstanding that there had been 111 fatal workplace incidents between 15 June 2005 and 31 March 2008, and at least three prosecutions arising from them were conducted under other, general, provisions of the OH&S Act and not the new offence.^[57]

THE TEENIES

By 2012, by way of uniform work health and safety legislation the Commonwealth, NSW, the Northern Territory (NT), Queensland, South Australia (SA) and Tasmania had each passed uniform Work Health and Safety legislation.^[58] The Uniform Acts attribute liability to directors and senior managers for the conduct of their company in certain circumstances outside those contemplated by the identification doctrine, and in the NT and Queensland, officers can be imprisoned for contravening such a duty.^[59] Largely uniform in their substantive terms, the Acts impose a series of clear obligations on employers to provide a safe workplace. The duties are expressed in terms of ‘persons conducting businesses or undertakings’, and this definition is wide enough to exclude the operation of the identification doctrine.

The ACT remains the only Australian jurisdiction to maintain a distinct offence of industrial manslaughter. Some jurisdictions continue to attempt to introduce such an offence. In 2015, Tammy Franks MLC, Greens member of the SA Legislative Council introduced a bill to create the offence in SA. That attempt failed, with a parliamentary committee recommending against the introduction of an ACT style offence.^[60] She had introduced such a bill in 2010, as had Nick Xenophon in 2004 when he sat in that chamber. Likewise, in 2017 Alison Zammon MLC, Greens member of the Western Australian Legislative Council introduced a bill to create the offence in that state. She has done so before in 2010. At the time of writing, her Bill is before the Council.

In SA in 2016, despite no offence of industrial manslaughter existing in that jurisdiction, a trucking boss was found guilty by jury of the offences of endangering life and manslaughter by gross negligence following the death of an employee who was driving with defective brakes. The boss was sentenced to 13 and a half years imprisonment. The verdict was set aside on appeal but the accused was again found guilty of manslaughter and endangering life following a retrial.^[61] In July 2017, the owners of a Royal Adelaide Show ride that killed an eight-year-old were fined $157,500 for causing the child’s death. The company that owned the ride and one of its directors pleaded guilty to breaching workplace safety laws by failing to maintain the ride in a safe condition. The company was notionally fined $94,500 and the director $63,000, plus a maximum compensation sum of $20,000. However, the offending company and director were impecunious and could not pay the fine so no order was made compelling payment. Nonetheless, convictions were recorded. This is the most recent example of a ‘successful’ prosecution, though the deceased was a customer, not an employee.^[62]

SO WHAT CAN WE LEARN FROM HISTORY?

Nothing in the criminal law, the Robens legislation where it remains, or the uniform legislation abrogates the accepted position at common law that the Crown may present an indictment alleging manslaughter against a corporation. The history of the law of workplace death shows, in the words of Professor Sarre, that there are ‘grave limitations on the criminal law as a regulatory tool’.^[63] And so it should be. The criminal law is not an ideological plaything. History shows that while prosecutions for manslaughter proper in a workplace have in some cases been successful, the prosecutions for statutory industrial manslaughter in Australia have not. In truth they are largely symbolic measures, designed to raise employers’ performance and safety attitudes.^[64]

Samuel Joyce is a Senior Associate at Tindall Gask Bentley Lawyers. He practises in criminal, disciplinary and administrative law, with an expertise in public sector discipline and judicial review. He is a former prosecutor and associate to a WA Supreme Court judge. EMAIL [e-mail].

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^[1] Pharmaceutical Society v London and Provincial Supply Association (1880) 5 App Cas 859 and Triplex Safety Glass Co v Lancegaye Safety Glass [1939] 2 KB 395.

^[2] DPP v Kent & Sussex Contractors [1944] KB 146.

^[3] R v Cory Bros Ltd [1927] 1 KB 810.

^[4] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313.

^[5] R v Lavender [2005] HCA 37; (2005) 222 CLR 67 [22].

^[6] Lennard's Carrying Co. Ltd v Asiatic Petroleum Co Ltd [1915] AC 705.

^[7] C Wells, Corporations and Criminal Liability, Oxford, Clarendon Press, 1993, p107.

^[8] DPP v Kent & Sussex Contractors [1944] KB 146.

^[9] Pharmaceutical Society v London and Provincial Supply Association (1880) 5 App Cas 859 and R v Tyler and International Commercial Co Ltd [1981] 2 QB 588.

^[10] DPP v Kent & Sussex Contractors [1944] KB 146.

^[11] R v ICR Haulage Ltd [1944] 1 All ER 691, 556.

^[12] Ibid, 694.

^[13] [1944] KB 146.

^[14] [1944] 1 All ER 691.

^[15] [1944] 2 All ER 515.

^[16] Parliament of Great Britain, ‘Legislating the Criminal Code: Involuntary Manslaughter’ (1996) The Law Commission 237, 76.

^[17] Northern Strip Mining Constructions Co. Ltd, The Times 2, 4 and 5 February 1965.

^[18] Summarised in above note 16, p80.

^[19] Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; [1972] AC 153.

^[20] Ibid.

^[21] M Goode, ‘The Common Law: Vicarious Liability and the Development of Primary Liability’ (2009) Australian Institute of Criminology Report No. 26, p4.

^[22] M Crabtree, ‘Corporate Culpability for Industrial Manslaughter: Finding the Soul of the Corporation’ (1994) Australian Business Law Review 376, 379.

^[23] Lord Robens, Report of the Committee on Safety and Health at Work, 1970 – 72, HMSO, London, 1972.

^[24] R McCallum ‘The Role of the Criminal Law in 21st Century Australian Occupational Health and Safety Regulation’ (2005) Australian Mining and Petroleum Law Association Yearbook 184, 190; Workplace Relations Ministers’ Council, Comparison of Occupational Health and Safety Arrangements in Australia and New Zealand (5^th ed), Commonwealth of Australia, 2008, vii.

^[25] TG Williams, Report of the Commission of Enquiry into Occupational Health and Safety, Sydney, 1981.

^[26] Collins v State Rail Authority of NSW (1986) 5 NSWLR 209, 211.

^[27] R McCallum, P Hall QC, A Hatcher and A Searle, ‘Advice in Relation to Workplace Death, Occupational Health and Safety Legislation, and Other Matters’, Report to the WorkCover Authority of New South Wales, June 2004, p28.

^[28] 5 NSWLR 209.

^[29] Collins v State Rail Authority of NSW (1986) 5 NSWLR 209, 215. See also, McCallum et al, above note 27, p28.

^[30] McCallum et al, above note 27.

^[31] McCallum, above note 24, 187.

^[32] R Johnstone, ‘Paradigm Crossed? The Statutory Occupational Health and Safety Obligations of the Business Undertaking’ (1999) 12 Australia Journal of Labour Law 73, 97.

^[33] R v British Steel plc [1995] 1 WLR 1356.

^[34]C Cornes, ‘The Liability of Corporations for Homicide in Victoria’ 15 Criminal Law Journal 351, 352.

^[35] Robin Edwards, Corporate Killers (2001) 13 Australian Journal of Corporations Law 231, 231.

^[36] Cornes, above note 34; Crabtree, above note 22.

^[37] S Chesterman, ‘The Corporate Veil, Crime and Punishment: The Queen v Denbo Pty Ltd and Timothy Ian Nadenbousch’ [1994] MelbULawRw 25; (1994) 19 Melbourne University Law Review 1064; NSW Law Reform Commission (NSWLRC), Workplace Deaths, Report No. 122 (2009) [2.17].

^[38] R v Denbo Pty Ltd (Unreported, Supreme Court of Victoria, Teague J, 14 June 1994).

^[39] Chesterman, above note 37; NSWLRC, above note 37.

^[40] R v A C Hatrick Chemicals Pty Ltd (1995) 152 A Crim R 384, 386.

^[41] DPP (Victoria) Reference No 1 of 1996 [1997] VSC 47.

^[42] Johnstone, Richard, Work health and safety and the criminal law in Australia, Policy and Practice in Health and Safety (2013), p31.

^[43] R Sarre, ‘Legislative Attempts To Imprison Those Prosecuted For Criminal Manslaughter In The Workplace’ [2002] Murdoch University Electronic Journal of Law 21.

^[44] McCallum, above note 24, 187.

^[45] Ibid.

^[46] C Maxwell, Victorian Occupational Health and Safety Act Review, Department of Treasury and Finance (2004) 355-6.

^[47] Crimes Act 1900 (ACT) s49A.

^[48] McCallum et al, above note 27.

^[49] Ibid, p17.

^[50] NSWLRC, above note 37.

^[51] Ibid, [4.20].

^[52] R v Smith (Unreported, District Court of New South Wales, Criminal Jurisdiction, Newcastle, English J, 2008/5549, 6 November 2008); R v Thurkell (Unreported, District Court of New South Wales, Criminal Jurisdiction, Newcastle, English J, 2008/5550, 6 November 2008) cited in NSWLRC, above note 37, [2.18].

^[53] NSWLRC, above note 37, [2.18].

^[54] Ibid.

^[55] R v Alex Cittadini [2009] NSWDC 179.

^[56] See R Sarre ‘Sentencing Those Convicted of Industrial Manslaughter’ [2010] Australasian Law Series Association (ALTA) Law Research Series 1.

^[57] NSWLRC, above note 37, [1.7].

^[58] Work Health and Safety Act 2011 (NSW), Work Health and Safety (National Uniform Legislation) Act 2012 (NT), Work Health and Safety Act 2011 (Qld), Work Health and Safety Act 2012 (SA), Work Health and Safety Act 2012 (Tas).

^[59] Johnstone, above note 42.

^[60] Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation, Parliament of South Australia, Report into the Referral of the Work Health and Safety (Industrial Manslaughter) Amendment Bill, (2016).

^[61] See R v Colbert [2016] SASCFC 12 and 'Guilty at Retrial', The Advertiser (Adelaide) 14 September 2016, 14.

^[62] C Prosser, ‘Adelene Leong: Royal Adelaide Show ride owners fined $157,000 over girl's death’ ABC News (online), 13 July 2017, <http://www.abc.net.au/news/2017-07-13/adelaide-show-ride-owners-fined-$157k-over-adelene-leong-death/8704040> . At the time of writing the sentencing remarks had not been released so more information is not known.

^[63] Sarre, above note 43, [17].

^[64] McCallum, above note 24; Crabtree, above note 22.