What is Reckless Endangerment?
State laws will differ in the precise definition of what constitutes reckless endangerment, which is a range of conduct that poses a sufficient risk to another person’s safety such that the law finds this behaviour reckless. However, a person will generally be charged with that offense if they deliberately engage in behaviour that poses a serious or substantial risk of injury to another person. This is especially true when the individual understood the risks but ignored them deliberately.
Elements of Reckless Endangerment
Reckless endangerment is a crime, whereby a person behaves in a reckless manner which creates a substantial risk of a serious physical injury to another individual. For charges to proceed, the reckless behaviour must be proven. Further, it must be shown that the individual knew or should have known of the risk posed by this action. The individual’s action must also exceed negligent or accidental conduct, posing a risk of harm that is itself unreasonable.
It isn’t necessary to prove that the individual intended their actions to cause harm to others or that they intended to cause the specific harm that resulted. The recklessness of the individual’s conduct is sufficient. That is, the intent to act without regard to the risks is generally enough.
Recklessness Endangers Lives
A good example was discussed in a previous blog post, where a South Gippsland woman became the first person in Victoria to be sentenced to jail under WorkSafe Victoria duty laws for recklessly endangering a worker. Maria Jackson a 72-year-old woman was convicted and sentenced to six months’ jail in December last year after the death of a man at her scrap metal yard. In February 2017, Robbie Blake was killed when he fell three metres from a raised forklift and was hit by a falling bin. Ms Jackson, his employer, was driving the forklift at the time and was unlicensed to drive the forklift.
Another example happened in April 2010 County Court, Judge Felicity Hampel handed down judgement in a prosecution by WorkSafe Victoria of Orbit Drilling and its Managing Director Martin Smith under section 32 of the Occupational Health and Safety Act (Vic) 2004 for recklessly endangering the health and safety Bradley Alford.
Alford had obtained his heavy riggers drivers’ licence after only 11 hours of training and commenced employment with Orbit Drilling a week later at a mining site in Victoria. In December 2006, Alford was instructed to drive a heavily loaded truck down a steep slope, with no road, and reverse onto a drilling pad.
The truck had not been serviced since May 2006. It had defective brakes, including no operating park brake and no effective rear brakes. Given the incline of the slope, weight of the load, and the defects of the brakes it was clear that the truck had no capacity to stop.
The Managing Director and the Site Supervisor knew the brakes were faulty. Alford drove the truck down the slope as instructed. The truck gathered speed and continued down the slope, past the pad, and into a gully where it overturned and Alford was thrown out and killed.
Reckless conduct endangering life is a very serious offence.
In sentencing Orbit Drilling, Judge Hampel highlighted the following points:
- the seriousness of the offences
- the failure to train and supervise Alford, as an inexperienced worker
- the recklessness of the company and the Managing Director in knowingly permitting the ongoing use of the truck with defective brakes.
The Judge noted that Alford had died as a direct result of these failures. The company was fined $750,000 with the Managing Director being fined $120,000.
Under the harmonisation of the WHS Law, the maximum fine for this type of offence is $3 million. The offence of reckless endangerment carries a maximum penalty of $1,051,380 and/or 5 years imprisonment.
Safety risk must be managed
The proactive approach to take to ensure you meeting your due diligence and ensuring safety in the workplace are as follows:
- ALWAYS manage and mitigate safety risk
- Provide appropriate training and ensure periodic maintenance that are recorded
- Implement processes to ensure that risk levels are low or never occur
- Engage your supervisors in identifying failures in the process and ‘at risk’ behaviours.
- Ensure that supervisors take appropriate actions to manage safety
- Always induct workers on every new piece of plant, equipment or vehicle use.
Failure to comply and minimise risk can lead to serious accidents that will include prosecution with fines and jail time when it includes mental elements such as ‘knowingly’ or ‘wilfulness’ or ‘recklessness’.