Part 2: Gross breach of duty of care

The relevant duty of care can arise from an organisation's role as employer, occupier, supplier of goods or services, constructor or maintainer, or keeper of any plant, vehicle or "other thing".

The test to determine whether there has been a "gross breach" of any relevant duty of care is whether the conduct in question falls far below what can reasonably be expected of that organisation in the circumstances.

An organisation will be guilty of the new offence only if the way its activities are managed or organised by 'senior management' is a substantial element in the gross breach of a relevant duty of care that leads to death.

Whether the role of senior managers is significant is a question of fact, and it is intended to capture those whose role is decisive or influential.

What amounts to a substantial part of the organisation's activities will vary, but is intended to capture, for example, management decisions at regional level within a national organisation, or those responsible for overall management of particular divisions of an organisation's operation. It is not intended to catch immediate, operational negligence causing death, or the unpredictable acts of employees.

A management failure must have caused the death. Explanatory notes to the Act indicate that such failure must be more than a minimal contribution to the death and there must be no break in the chain of causation. However, the management failure does not need to be the sole cause of the death.

The Act requires a consideration of the organisation's compliance with health and safety legislation. A critical examination will be given to the attitudes, systems, policies and accepted practices within the organisation that may have encouraged or tolerated non-compliance with the cited legislation...