The primary defence strategy employed by regulatory safety prosecutors post-incident is often built on an intuitive timeline: a catastrophic injury occurred, an engineering control was missing, therefore the employer failed to take all reasonably practicable steps to eliminate the risk.
In a landmark determination, the Supreme Court of Victoria completely dismantled this approach. In SKM Services Pty Ltd v Magistrates’ Court of Victoria & Anor [2019] VSC 460, the court quashed a lower-court amputation conviction and its $150,000 fine, ruling that the initial magistrate had impermissibly reasoned backward to secure the guilty verdict.
This judgment provides corporate counsel and safety consultants with an extraordinary case study on the boundaries of criminal liability. It establishes that a post-incident modification can never be used as absolute proof that an employer was negligent prior to the event.
The Flawed Logic of Hindsight Bias
The prosecution followed an operational incident at a recycling facility where a worker received an amputation injury from an active mechanical component on an aluminium can baling machine. Following the tragedy, the employer immediately retrofitted tunnel guarding—an engineering interlock control that completely eliminated the zone of exposure.
During the initial trial, the prosecutor pointed directly to this post-incident modification as evidence that the control was entirely “reasonably practicable,” arguing that because the business implemented the fix quickly after the event, they possessed the capacity to do so before.
The Supreme Court of Victoria ruled that this logic constituted a severe error of law. Associate Justice Lansdowne re-affirmed that the calculation of reasonable practicability under Section 20 of the Occupational Health and Safety Act 2004 (Vic) must be evaluated as a forward-looking assessment conducted before the incident occurs. The assessment must factor in actual or constructive knowledge at the strict time of the alleged contravention, rather than utilizing hindsight to construct liability.
The bench emphasised that using hindsight to determine what an employer “could” have done, rather than what they “should” have foreseen and done, represents an impermissible backward-reasoning process. If an employer can prove they conducted a rigorous, documented risk appraisal before the incident, and that the specific task modification fell outside the industry-established state of knowledge, they cannot be convicted simply because an accident eventually exposed a hidden variable.
In this specific instance, the court highlighted that the employer had reasonably relied on the expert assurances of a skilled plant supplier who stated that further tunnel guarding was not required under standard compliance benchmarks.
| Analytical Component | Hindsight / Backward Reasoning | Contemporaneous / Forward Assessment |
|---|---|---|
| Evidentiary Focus | Using post-incident plant modifications as absolute proof that a safety control was reasonably practicable before the event. | Evaluating liability strictly on the documented state of operational knowledge available prior to the incident. |
| Reasonable Practicability | Arguing that what an employer ‘could’ physically achieve in hindsight dictates whether they breached their duty. | Assessing what a reasonable employer ‘should’ have foreseen and actioned based on active risk data and industry standards. |
| Systemic Defense | Relying on low past incident rates to retroactively justify the absence of higher-order engineering safeguards. | Presenting contemporaneous records of expert certifications, supplier compliance, and structured hazard reviews. |
Strategic Capital for Safety Advisors
This judgment provides safety professionals with a powerful argument to re-align internal risk-profiling models:
- De-link incidents from system validation: A low incident rate does not prove a system is safe, and a sudden incident does not automatically prove a system is criminally non-compliant. Focus assurance metrics entirely on the quality and validity of pre-start risk assessments.
- Document the history of control selection: When an organisation evaluates a hazard and selects an administrative or engineering control path, the safety team must meticulously document the exact data, standards, expert advice, and practical constraints that informed that choice. This contemporaneous paper trail is the primary shield against backward reasoning post-incident.
- Audit beyond the hindsight trap: Use this case to train internal safety auditors. Audits must evaluate whether existing controls match the current industry state of knowledge and what the company ought to know, rather than hunting for flaws only after a field failure occurs.
Source Material & Further Reading
- Primary Judgment: SKM Services Pty Ltd v Magistrates’ Court of Victoria & Anor [2019] VSC 460 (Definitive rejection of backward reasoning in regulatory safety trials).
- Statutory Reference: Occupational Health and Safety Act 2004 (Vic), Section 20 (Definition of reasonable practicability) and Section 21 (The duty to provide and maintain safe systems of work).
