Updated: Feb 11, 2019
Recently, Maria Jackson became the first person to receive a custodial sentence for a breach of occupational health and safety legislation (the Victorian Occupational Health and Safety Act).
There have been cases where individuals have received a non-custodial sentence (i.e. a suspended sentence) for breaches of health and safety legislation (see for example, Maurice Barton – 20 month suspended jail term). There have also been cases where individuals have been convicted of manslaughter and received a custodial sentence (see for example Nathan Day and Peter Colbert) for workplace accidents however, as far as I am aware this is the first custodial sentence for a breach of occupational safety and legislation.
Jackson was fined $10,000, ordered to pay $7336 in court costs and sentenced to 6 months in jail.
According to reports (there are no published decisions available), a worker was working inside a bin removing scrap metal, when Jackson lifted the bin using the forklift. The bottom of the bin gave way, the worker fell through the bottom of the bin and steel from the bin fell on him. It is not clear from the reports whether Jackson was aware the worker was inside the bin.
Jackson (72) owned and operated Recycling Emporium, and was driving the forklift, however she did not have a forklift license and was recovering from a stroke at the time.
Apart from the custodial sentence, there is nothing particularly remarkable about the case. Dangerous operation of a forklift is one of the most common reasons, in my experience, individuals are prosecuted under health and safety legislation. Indeed, there have been many examples of dangerous forklift operation resulting in the death of another worker (see for example Thomas William Lewis).
It would be very interesting to understand the reasoning behind the custodial sentence. On the face of the public reports, the breaches are obviously serious, but they are no more serious than countless other breaches of health and safety legislation resulting in the death of another person. There is nothing on the face of the public reports that provide any compelling reason why this particular case warrants a custodial sentence, much less a custodial sentence for a 72-year-old, recovering stroke victim.
I am not saying that under the current health and safety prosecution paradigms (which I disagree with – see for example The Prosecution Problem) a custodial sentence is not justified, it is just not clear why this case requires a custodial sentence when so many other equally if not more serious cases do not.
If the purpose of the prosecution and push for a custodial sentence was to send a message to the community, surely there would be better cases than this one?
Because of the lack of publicly available information at the moment, unfortunately it is difficult to say if there are any lessons from this case apart from the obvious insofar as there are potentially serious consequences for breaching health and safety legislation, and dangerous operation of a forklift can have serious legal outcomes.
In some way, however, the case does reinforce that personal liability risk is higher for small business owners involved in the day-to-day operations of the business. The history of prosecution of executive management in Australia has always been at the small business level, focused on business owners with day-to-day management of the work, and very often personally involved in the work at the time of the incident (see for example Neil Foster, Personal Liability of Company Offices for Corporate Occupational Health and Safety Breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW). See Also: Real executive liability is dead, and we want to cremate it).
We are yet to have a meaningful test case in Australia looking at the boundaries of due diligence, and the broader question of executive liability when they are removed day-to-day management and the work itself.
This article represents a general discussion about legal principles. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.