by Mario Quintiliani (Co-written by Law Cadet, Sam Troutman)
The recent deaths of miners Phillip Grant and Jamie Mitchell following a collapse of a mine wall while working underground, were a tragedy. Investigations are still ongoing and no allegations of negligence by the mine operator corporation have been made. The current law in NSW means that even if the negligence of the corporation was found to have been the cause of the deaths, a successful criminal conviction against the corporation is unlikely.
Following high profile disasters in the United Kingdom (UK) due to the negligence of senior management, the UK parliament introduced laws that sought to redress the balance in corporate manslaughter cases to improve the prospect of conviction of corporations.
The success or failure of those UK laws may influence the parliament of NSW in its own consideration of how to address the issue of securing corporate manslaughter convictions.
Corporate manslaughter in NSW
A corporation can be found guilty of manslaughter by criminal negligence in NSW. A corporation can only act through the actions of individuals in the corporation. It has no mind of its own. To attribute mental elements of fault to a corporation, the courts in the UK developed the identification doctrine. The court must consider which individuals in the corporation represent its ‘directing mind and will’ and impute fault to the corporation through them. This means one of these individuals must be proven to have the ‘mental’ or ‘fault’ element of manslaughter by criminal negligence in order to secure a conviction of the corporation. Typically this will be the corporation’s directors, senior management, or persons acting under instructions from a general meeting of shareholders.
The changes made by the UK laws
The biggest problem with the identification doctrine is that it is very difficult to prove that a member of senior management of the corporation has the fault elements of manslaughter by criminal negligence. The decisions that caused the breach of the standard of care are often made by people lower down the corporation’s management chain. This is particularly the case in very large corporations. Law reform commissions in NSW have previously noted the difficulty associated with the identification doctrine and the need for reform.
To be guilty of corporate manslaughter under the UK laws , the management and organisation of the corporation’s affairs must:
•have caused a person’s death;
•amount to a gross breach of a ‘relevant duty of care’ that was owed to the deceased; and
•be a substantial element in the breach of the duty of care.
Under the UK laws there is no need to establish mental intent against a member of senior management specifically. The culture and overall practices of the corporation are the focus. If the practices of the corporation caused the breach of the duty of care and senior management had a substantial role in maintaining those practices, the corporation will be guilty of corporate manslaughter.
Implications for NSW
The UK laws have only operated for six years in the UK and already six convictions for corporate manslaughter have been secured, with fines ranging from £480,000 to £110,000. According to recent studies, 141 corporate manslaughter cases have been opened by the UK’s Crown Prosecution Service.
If the UK laws prove to be an effective way to facilitate convictions of corporations for manslaughter, a case may emerge for the introduction of similar legislation into NSW to ensure corporations are held to account for their negligence.
Need more information on your rights under current corporate legislation? Contact Kells Commercial team on (02) 4221 9311.
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