Expert Evidence in
WHS Prosecutions
Independent expert opinion for proceedings under the work health and safety laws: what was reasonably practicable, what was known in the industry at the time and whether the duty holder's systems measured up.
The Role of Expert Evidence in a WHS Prosecution
Most WHS prosecutions turn on what was reasonably practicable. Under section 18 of the model WHS Act, that depends on the likelihood of the hazard or risk, the degree of harm that might result, what the duty holder knew or ought reasonably to have known, the availability and suitability of ways to eliminate or minimise the risk and, after those, the cost.
These are factual and technical questions. Karim Ali gives the court an independent opinion on them: the risk, the control measures available at the time, what codes of practice, Australian Standards and industry guidance said, and how the duty holder's systems compared.
He accepts instructions from legal practitioners acting in WHS proceedings, subject to a conflict check. His duty is to the court, not to the party that instructs him.
A prosecution looks back at an incident, but the question is what was reasonably practicable before it happened. Karim's reports separate what the duty holder knew or ought to have known at the time from what became clear afterwards.
Questions Expert Evidence Addresses
- What the hazard was and how likely harm was
- What control measures were available and suitable at the time
- What codes of practice, Australian Standards and industry guidance said
- Whether the safety management system was adequate and actually implemented
- Whether officers exercised due diligence under section 27
- How duties were shared between businesses, including principal contractors
- Whether a different control measure would probably have prevented the incident
- Matters relevant to sentence, such as the safety record and the steps taken since
From Brief to Evidence
Prosecutions run to the criminal standard of proof and to firm timetables, and the process is built for that.
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Brief Review
The charge, the particulars, the regulator's evidence, statements, photographs and the duty holder's safety documents.
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Site and Plant
Inspection of the site, plant or work method where possible, or reconstruction from the evidence where it is not.
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Reasonably Practicable Analysis
Each alleged failure tested against the section 18 matters, using what was known or reasonably knowable at the time.
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Systems and Officers
Assessment of the safety management system and, where officers are charged, the due diligence steps they took. See duty holder obligations.
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Report
A report under the applicable expert code of conduct, with the facts, assumptions and reasoning set out.
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Evidence
Conferences with counsel, joint expert conferences where ordered, and evidence at hearing or on sentence.
Where Expert Evidence Is Used
The model WHS Act sets three categories of offence for failing to comply with a health and safety duty, and industrial or workplace manslaughter offences have been introduced across Australia.
Reckless conduct that exposes a person to a risk of death or serious injury or illness (section 31). Model law amendments add gross negligence, in the jurisdictions that have adopted them.
Failing to comply with a health and safety duty and exposing a person to a risk of death or serious injury or illness (section 32).
Failing to comply with a health and safety duty (section 33).
Offences now apply in most jurisdictions, including New South Wales from 16 September 2024, the Commonwealth and South Australia from 1 July 2024, and Victoria's workplace manslaughter offence from 1 July 2020.
Charges against officers for failing to exercise due diligence under section 27, which turn on what the officer did to understand and manage the risks of the business.
Evidence about the seriousness of the breach, the duty holder's systems and the remedial steps taken can be relevant to penalty.
Acting for a Defendant
For a defendant, expert evidence can test the prosecution case on what was reasonably practicable, show where the alleged control measures were not available or suitable at the time, and explain industry practice.
Where a plea is entered, an expert report can help the court understand the circumstances of the offence and the steps the business has taken since.
- Review of the regulator's expert report
- Independent opinion on reasonably practicable measures
- Assessment of the safety management system
- Officer due diligence
- Evidence on sentence
During a Regulator Investigation
Many businesses first need help while the regulator is still investigating. An independent investigation helps the business understand what happened, fix the problem and respond to the regulator.
If Karim investigates an incident for a business, he usually cannot later act as the independent expert in proceedings about the same incident. Conflicts are checked before any engagement is accepted.
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Can an expert say whether the defendant is guilty?
No. Guilt is for the court. The expert gives opinions on technical matters, such as the risk, the available control measures and industry practice, which the court uses in deciding whether the duty was breached.
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What does reasonably practicable mean?
It means what was reasonably able to be done at the time to ensure health and safety, weighing the likelihood and severity of harm, what the duty holder knew or ought to have known and the available controls. Cost comes last and only rules out a control if it is grossly disproportionate to the risk. See reasonably practicable explained.
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Do you give evidence on sentence?
Yes, if instructed. Expert evidence can help the court understand the seriousness of the breach and the safety measures introduced since the incident.
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Do you work in all states and territories?
Yes. Karim accepts instructions across Australia and works with the WHS or OHS legislation, regulations and codes of practice of the relevant jurisdiction, including Victoria's Occupational Health and Safety Act 2004.
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How early should an expert be briefed?
As early as possible. Early advice helps frame the issues, identify evidence to obtain and decide whether to challenge the prosecution's expert evidence.
Discuss Expert Evidence in a WHS Prosecution
Contact Karim Ali to discuss the charges, the timetable and the scope of the report.