Is the Law an Ass?
Last month we raised the question about the apparent discrepancy in OHS penalties handed out by the courts, which appear to be gauged on the ‘luck’ of the outcome and not the level of negligence or intent.
We invited our good friend Andrew Douglas, Managing Principal FCW Lawyers, to respond to my assertion. Refer to Safety Action News, May 2018, for article entitled “The Law is an Ass”.
Here is Andrew’s response. The observation about penalties is somewhat correct in that we do observe higher penalties when serious events occur. However, the likelihood of prosecution is less if there is no injury as it is less likely to come the notice of authorities or to be investigated sufficiently to lay serious charges.
In addition, the workplace safety breach called Reckless Endangerment, e.g. S.32 Vic OHS Act, has been structured to deliver higher penalties for exposing others to the risk of serious injury or death. Clearly, it is easier to prove reckless endangerment after a fatal accident than before, and therefore we tend to see higher penalties after serious events.
If you have any workplace legal questions let us know and we will ask Andrew Douglas to explain it in simple terms so we all understand.
Thank you - Andrew Douglas
T. 03 9654 4474