7.7.1.4 – Checklist: Employer’s duty to non-employees

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Four elements the prosecution must prove beyond reasonable doubt:

1. The accused was an employer at the relevant time; and

2. There was a risk from the conduct of the accused’s undertaking to the health and safety of non-employees; and

3. The accused failed to do something which would have eliminated or reduced that risk; and

4. It was reasonably practicable in the circumstances to have taken steps to eliminate or reduce that risk.

Accused as an Employer

1. Was the accused an employer at the relevant time?

If Yes, then go to 2

If No, then the accused is not guilty of breaching the duty to non-employees

Risk

2. Did the conduct of the accused’s business create a risk to the health and safety of non-employees?

Consider – The prosecution claims that the scope of the accused’s business included [relevant conduct]

Consider – The prosecution claims that the accused’s business created a risk of [relevant risk]

If Yes, then go to 3

If No, then the accused is not guilty of breaching the duty to non-employees

Failure to eliminate or reduce risk

3. Did the accused fail to take an identified measure which would have eliminated or reduced the risk?

Consider – The prosecution argues that the accused should have [relevant measure]?

Consider - Would [relevant measure] have eliminated or reduced the risk of [relevant risk]?

If Yes, then go to 4

If No, then the accused is not guilty of breaching the duty to non-employees

Reasonably practicable

4. Was [relevant remedial act] a reasonably practicable way of addressing [relevant risk]?

Consider – How likely was [relevant risk] to occur?

Consider – What harm would follow if [relevant risk] occurred?

Consider – What could be done to eliminate or reduce the risk?

Consider – How suitable were those options and how much would these options have cost?

Consider – What did the accused know about the risk and ways of addressing it or what should the accused have reasonably known?

If Yes, then the accused is guilty of breaching the duty to non-employees (as long as you also answered yes to questions 1, 2 and 3)

If No, then the accused is not guilty of breaching the duty to non-employees

Last updated: 12 September 2019

See Also

7.7.1 – Employer’s Duty to Employees and non-Employees

7.7.1.1 – Charge: Employer’s Duty to Employees

7.7.1.2 - Checklist: Employer's Duty to Employees

7.7.1.3 - Charge: Employer’s Duty to Non-Employees