The personal liability of company officers for company breach of workplace health and safety duties

Masters Research - Master of Laws (LLM)Workplace-related death, injuries and illness remain a major concern for Australian society in the 21st century. This thesis addresses one aspect of the prevention of avoidable risks to occupational health and safety - the issue of how a company officer, whether a board member or other manager, may be held personally accountable for the consequences of such risks. Research shows that the potential for such personal liability is a major factor which focusses the attention of company officers on the need for due diligence in implementing safety systems. This thesis explores the limits of the legal liability of officers, both for awards of damages under civil law, and for criminal penalties. The thesis aims, as a legal doctrinal study, to demonstrate that the existing common law and statutory personal liability of company officers is already much wider than is commonly assumed. It suggests that this liability may be relied on to further the goals of effective compensation for, and prevention of, workplace accidents. It demonstrates that a company officer is not always protected by the “corporate veil” from the consequences of negligent actions or omissions which lead to death or injury of workers. A duty of care will often exist between the individual officer and workers whose safety is put at risk by a company culture which ignores or downplays safety issues. Breach of this duty may result in a substantial award of damages against the officer personally. The criminal law may also be invoked against a company officer. Where a death is involved a company may be found guilty of manslaughter. An officer may also be convicted of manslaughter, either through their own actions or omissions, or through their complicity with the company. While cases where these options will apply are rare, company officers are already subject, under specific workplace safety statutes such as the Occupational Health and Safety Act 2000 (NSW), to personal criminal liability if the company commits an offence. The operation and interpretation of deeming provisions in this and similar statutes in other States is explored, through an analysis of a number of decided cases, and suggestions made to improve the effectiveness of the provisions. In particular it is recommended that these and the more general criminal provisions be used more often, in appropriate cases, to target board members of larger corporations. As recent amendments to NSW legislation confirm, a systems-based approach to the improvement of workplace safety holds out the best hope for workplace risks to be effectively dealt with. In many cases death or injury flows from a systemic management failure rather than simply from the careless action of an individual manager. Ensuring that board members are aware of their potential liability, even when they are not directly involved in the workplace, will hopefully lead to more attention being paid at higher levels to improving the culture of workplace safety in a company. Many companies already have proper workplace safety procedures in place. But for those which continue to put profit above the life and safety of workers, increased awareness of the personal liability of officers will remind managers of the need to pay due attention to these issues