Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd

The respondents, JCS Fabrications Pty Ltd and JMAL Group Pty Ltd, were indicted on charges relating to an incident where unsecured plant fell from a truck during unloading, resulting in the death of a non-employee. The Director of Public Prosecutions brought an interlocutory appeal concerning the adequacy of the respondents’ defence to a charge under the Occupational Health and Safety Act 2004. The legal issues before the court involved whether the respondents could be held criminally liable for the failure of an employee to follow a safety system in unloading plant, and whether the defence was sufficient in pleading that even if the system was not followed, there was no reasonably practicable measure to maintain the system. The court considered whether the rules of attribution and vicarious criminal liability applied in this context.

The court analysed the statutory provisions and previous cases such as ABC Developmental Learning Centres Pty Ltd v Wallace, R v Commercial Industrial Construction Group Pty Ltd, and DPP v Vibro-Pile (Aust) Pty Ltd. It found that the respondents could indeed be held criminally liable if it was proven that they failed to ensure that others were not exposed to risks to health and safety. The court held that the respondents’ reliance on the employee’s training and adherence to the system was not directly relevant to the fact in issue. It further determined that the defence's plea about the reasonably practicable measure was not sufficient as it did not directly address the respondents’ primary duty to ensure safety systems were maintained. The court concluded that the rules of attribution and vicarious liability were applicable in this case.

The interlocutory appeal was allowed, and the court determined that the respondents’ defence was inadequate. The respondents were required to amend their defence to address the primary duty of ensuring safety systems were maintained, and the possibility of a reasonably practicable measure in this context. The court's decision provided clarity on the respondents' obligations under the Occupational Health and Safety Act 2004 and the applicable legal principles in this type of occupational health and safety case.