Isn't the issue here really that of criminal liability for omission?

No-one doubts that if a worker is killed by a negligent act there is potential liability for manslaughter, and the status of the actor is irrelevant. If the worker here had been run over by a dump truck, it wouldn't make any difference whether this was due to reckless driving by a co-worker or very negligent tightening of the wheel-nuts by a repairer. Liability for pure omission is more tricky. If anything, it should be narrower than civil liability, since as a general rule one should be less willing to send someone to gaol than make him (or his insurer) pay money. Except possibly for the company safety director himself, who is arguably in a special position, I for one would be very unhappy to see boardroom votes scrutinised generally from the point of view of hindsight when an accident occurred.

Andrew

Dear Colleagues;

It may seem a bit odd to pose a comment on a decision from the NSW Court of Criminal Appeal to our list on private law issues, but the decision in R v Moore [2015] NSWCCA 216 (15 Dec 2015) https://www.caselaw.nsw.gov.au/decision/566a042ee4b05f2c4f049b33 has some interesting private law implications. The case is a prosecution for manslaughter of a company director in relation to the death in the workplace of a company worker. (For those outside NSW, many of the Justices of the Court of Criminal Appeal are the same as those who sit on the civil Court of Appeal, but there is a formally separate appeal structure form criminal decisions.)

Because the law of “involuntary manslaughter”, and in particular “negligent manslaughter”, involves the question whether the accused owed the deceased a duty of care at common law, there are a number of comments here on that question. The case stands, among other things, for the proposition that a company director does not automatically owe such a duty to workers simply by virtue of their status as a board member. But it also holds that status as a director does not immunise a company officer from a duty of care that may arise due to the circumstances of the particular case.

In this case the circumstances leading to a duty were quite strong. Mr Moore was not only a director but also an “employee” of the company, he was on the ground giving directions as to how the work should be done. Hence it is perhaps not surprising that the CCA held that he may have had a duty of care. But in doing so they had to overturn the decision of the trial judge to stay the trial, seemingly on the basis that the “director” status meant that a duty could never be found. So the case is important as a reminder that a duty can arise in some circumstances. In my view those circumstances might extend, not simply to a “coal face supervisor”, but also in some cases to board members who can foresee that safety precautions are needed to prevent harm and refuse to spend money on such. I have argued for this in previous articles.

For those who would like a more extensive analysis, I have prepared a note on the case which can be downloaded from http://works.bepress.com/neil_foster/99/ , including reference to those previous articles.

Regards

Neil

 

ASSOCIATE PROFESSOR NEIL FOSTER

Newcastle Law School
Acting Assistant Dean, Teaching and Learning
Faculty of Business and Law

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