We have all heard people say the law is an ass, particularly after a controversial legal case where the court judgement sounds strange to us.
I have long wondered about the logic and fairness of punishments being gauged on the luck of the outcome, not the magnitude of the criminal intent.
Penalty based on luck of the outcome
For example, a person who plans, comes equipped and attempts to kills someone, but fails typically is treated much more leniently that a person who did the same preparation with the same intent but succeeded.
So to, we see workplace safety judgements follow the same logic and apply the same distorted judgements for almost identical crimes e.g. failure to comply with clear workplace safety requirements.
The case that prompted this short article is the recently reported fine of $35,000 plus court costs for a construction company (Lojac Civil Pty Ltd) who left a work site unsecured with 80 large deep bore holes.
A dog-walker fell in one of the holes and was buried up to the waist, but was able to use their mobile phone to call for help.
In 2011 an almost identical case involved a construction site being left with open bore holes, whereby the dog-walker fell in head first and died. But in this case, the construction company was fined nearly 10 times more - $275,000, and the director fined $27,000.
Same negligence - penalty 10 times more
The only real difference is the outcome (good luck you survive, or bad-luck you die), but the level of negligence and carelessness for the safety of others was the same.
Sometimes the extraordinary efforts and response of the victims is used to reduce the penalty. For example, suppose you buy the safest car on the road which is more expensive, and a dangerous driver slams into you. The fact you are not killed or injured favours a lower penalty for the same reckless behaviour, but your efforst and expenditure caused this - not the efforts of the reckless driver.
There is no easy answer to this issue, however, it would be good to see the courts starting to give greater weight to the intent and level of negligence, not just the ‘fluke’ of the outcome in the particular case before them.
We have invited one of our legal expert friends to respond to this in a future article.
Gary Rowe, CEO Safety Action Pty Ltd