St Vincent's Care Services Ltd v The Queen

[2022] VSCA 186

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Conviction
3. › Appeal
4. › Unreasonable verdict
5. › Whether verdict unreasonable or unable to be supported having regard to the evidence
6. › Criminal Procedure Act 2009 (Vic), ss 276(1)(a), 420F(2)
1. Occupational Health and Safety
2. › Duty of employer to non-employees
3. › Risk arising from conduct of undertaking
4. › Whether risk to health and safety arose from conduct of employer's undertaking
5. › Whether aged care residents leaving facility unsupervised created risk from employer's undertaking
6. › Occupational Health and Safety Act 2004 (Vic), ss 20, 23(1)
1. Occupational Health and Safety
2. › Reasonably practicable measures
3. › Monitored sign-out/sign-in register
4. › Whether measure reasonably practicable having regard to residents' rights
5. › Whether measure would have eliminated or reduced risk
6. › Occupational Health and Safety Act 2004 (Vic), ss 20, 23(1)
7. › Aged Care Act 1997 (Cth), s 56-1(m)

Quick Take

A prosecution under s 23(1) of the Occupational Health and Safety Act 2004 (Vic) must adduce sufficient evidence of the nature and extent of the alleged risk to health and safety, and cannot define the risk by reference to the absence of the proposed measure. Where an employer operates in a regulated environment conferring rights on non-employees (such as aged care residents' rights to freedom of movement), a proposed reasonably practicable measure must be assessed against those rights, and a 'one size fits all' measure may not be reasonably practicable. The prosecution must also adduce evidence that the proposed measure would in fact eliminate or reduce the risk, not merely assume its effectiveness.