Queensland’s work health and safety legislation has been in place as stand-alone legislation since 1989. The title of the legislation, however, belies its potential for more general application to personal injury matters and its utility for claimant lawyers in their preparation for their case.
Under the current Act1 a Person Conducting a Business or Undertaking (PCBU) must notify Workplace Health and Safety Queensland (WHSQ) “immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.”2 The penalty for failing to notify is 100 penalty units, which currently equates to $14,375.3 There is a complementary obligation to preserve the scene of a notifiable incident so far as reasonably practicable until a WHSQ inspector arrives or provides permission otherwise.4 Again, the current penalty is 100 penalty units.
The above words are clear, and yet it seems that PCBUs have chosen to imply the words “involving a worker” into the provision5. I have been involved in several public liability claims recently where members of the public, invitees, customers, and patrons have been seriously injured on business premises and yet the PCBU has failed to notify WHSQ or preserve the accident scene. The explanation feebly offered to WHSQ inspectors once they have become involved has uniformly been “we thought we only had to notify if one of our workers got injured……”
So a PCBU must notify WHSQ of a “notifiable incident” regardless of whether the injured person is an employee, contractor, agent, customer, or child. But what is a “notifiable incident”? Well that is defined in the Act as a death, a serious injury or illness, or a dangerous incident.6 Section 36 of the Act then goes on to define a “serious injury or illness” to involve immediate treatment in a hospital as an in-patient or immediate treatment for a range of serious injuries (including serious injuries to the head, eye and spine, serious burns and lacerations and loss of bodily function) or medical treatment within 48 hours for exposure to a substance.
So to put that all into context, if a shopper / customer / invitee sustains a serious injury in:
- A shopping mall,
- A supermarket,
- For that matter any business premises
and is attended by ambulance officers who confirm that the person is going to a hospital for inpatient treatment, then the relevant PCBU is obliged to immediately report the accident to WHSQ and preserve the scene of the incident until a WHSQ inspector either attends or advises that the scene can be dealt with. How often have you seen or heard of that occurring?
Okay, so the PCBU has not fulfilled its statutory obligations to immediately report the notifiable incident or preserved the scene so that a WHSQ inspector can attend, inspect the scene, interview witnesses, issue prohibition or improvement notices and otherwise investigate the incident. Is it just sour grapes to subsequently report the notifiable incident on the off chance the PCBU gets hit with penalties? Definitely not. While a penalty might be appropriate, especially in the case of a repeat offender, there are other reasons to still make that report.
Firstly, a PCBU must keep a record of each notifiable incident for at least five years from the day the notice of incident is given to WHSQ (maximum penalty of 50 penalty units, or another $7,187.50)7. These records might prove to be goldmine for claimant enquiries about the relevant incident and previous similar incidents using the disclosure obligations under section 27(1) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).
Secondly, WHSQ inspectors under Part 9 of the Act have various powers of entry and to require the production of documents and answers to questions in relation to a notifiable incident. In relation to the power to ask questions, attention is drawn to section 172 of the Act, which provides “A person is not excused from answering a question or providing information or a document … on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.”8 It is to be noted that section 172(2) provides that the answer to a question or provided information or documentation from an individual is not admissible as evidence against that individual in civil or criminal proceedings. However, on what basis can lawyers then acting for the PCBU or its insurer, as officers of the court, subsequently advance a legal position in defence of a claim or before a court inconsistent with or contrary to that previously given evidence?
Taking the above as a whole, it is of potentially great utility to ensure that notifiable incidents involving non-workers (and workers for that matter) are reported to WHSQ in circumstances where it is suspected that the PCBU has not notified, despite their statutory obligation to do so.
While WHSQ may not investigate every matter, in recent matters I have been involved in, they have still issued a compliance notice to PCBUs where there was a failure to notify. If WHSQ does investigate, a subsequent RTI of WHSQ’s records will hopefully tell a claimant lawyer all they need to know about the incident from the PCBU’s perspective. Finally, the PCBU’s records of the incident and other similar “notifiable incidents” arguably ought to be made available pursuant to PIPA disclosure obligations.
All in all, a potentially useful tool in personal injuries claims. The link to report a notifiable incident to WHSQ can be found here9.
Special Counsel
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