The widow of the man who died in the back of prison van has welcomed a WorkSafe decision to prosecute the State, the transport contractor and two drivers over his death.
WorkSafe today announced that it was prosecuting the Department of Corrective Services, prison transport company G4S and the drivers over the 2008 death of Aboriginal elder Mr Ward.
In a statement, WorkSafe said it had laid four charges under the Occupational Safety and Health Act 1984.
Mr Ward’s widow, Nancy Donegan, said she was "happy and relieved".
“I think it is long time coming. It is good for my sons and me, for the Ward families, my in-laws, the Elders in the community, friends and colleagues of my husband – everyone who knew my husband," Mrs Donegan said in a statement released by the Aboriginal Legal Service.
“It will help me and my family deal with the pain a little better.”
The Department has been charged with failing to ensure that persons who are not employees are not exposed to hazards, and thereby allegedly causing the death of Mr Ward, whose first name is not used for cultural reasons.
WorkSafe will allege that the Department had control over the van, which it alleges was not properly maintained. It also claims the Department did not ensure prisoner transport company G4S had systems of work in place for the transportation of persons in custody.
The offence carries a maximum penalty of $400,000.
G4S, as the employer, has been charged with failing to ensure that the safety and health of a person who was not an employee is not adversely affected by the work undertaken, and by that failure, allegedly caused Mr Ward’s death.
It is alleged G4S did not ensure that safe systems of work were in place for the transportation of persons in custody, which carries a maximum penalty of $400,000.
The two drivers of the van, Nina Stokoe and Graham Powell have been charged with failing to take reasonable care to avoid adversely affecting the safety or health of another person through an act or omission at work, and by that failure, allegedly causing the death of Mr Ward.
Ms Stokoe said she was “gut-wrenched” by the decision to charge her.
“I didn’t expect this,” she said. “I didn’t think that we would be charged.”
Ms Stokoe and her co-driver Mr Powell face maximum fines of $20,000 each after being charged with failing to take reasonable care to avoid adversely affecting the safety or health of another person through an act at work.
Mr Powell could not be contacted but Ms Stokoe said she had spoken to him and he was “angry and upset” by the revelations.
She said she had been notified of the legal action via email this morning but did not want to comment further until she had obtained legal advice.
Warburton elder Mr Ward, 46, died from heatstroke in January 2008 after being transported from Laverton to Kalgoorlie in the back of a van in which it has been alleged the air conditioning was either faulty or not working.
The WorkSafe statement said that at the time of Mr Ward’s death, a police investigation was considered to be more than appropriate than a WorkSafe investigation because the charges and penalties available under their legislation were stronger and more appropriate.
The decision by WorkSafe to prosecute follows an investigation by the Director of Public Prosecutions last year where it was decided that criminal charges could not be pursued in the case of Mr Ward because a prima facie case did not exist.
Coroner Alastair Hope investigated Mr Ward’s death and found the Department, G4S and the two drivers allegedly contributed to Mr Ward’s death.
The WorkSafe investigation into whether the Occupational Safety and Health Act had been breached comes eight days before a three year deadline under which charges could be laid comes up.
The Act places a duty of care on a number of parties in a workplace, and requires safe systems of work to be in operation in all workplaces.
WorkSafe WA Commissioner Nina Lyhne said today that the case was a good example of the breadth of occupational safety and health legislation.
“The fact that four parties have been charged illustrates that the responsibility for keeping the workplace safe extends to a number of different parties in the workplace who have different roles,” Ms Lyhne said.
“It also demonstrates that safe systems of work must be in operation in workplaces in order to ensure the safety of everyone – not just the workers, but also anyone else who has reason to be in that workplace."
In July last year, Mr Ward's widow and four children received $3.2 million from the State Government in an “unequivocal and sincere” apology for the tragedy.
At the time, Attorney-General Christian Porter said the money would go to the family as an act of contrition that recognised the failure of the previous Labor government to provide a proper prison transport system despite repeated warnings it was not fit for people.
Corrective Services Commissioner Ian Johnson said today he could not comment directly on the case or the prosecution of other parties.
“I can re-iterate that the Department has fully co-operated with the WorkSafe investigation by providing the required documentation and staff to be interviewed," he said.
"This tragic event led to a complete overhaul of the transportation of prisoners, continual assessment of how we can reduce the need for transport in the first place and how we can improve the safety, security and humane conditions of those who have to be transported.”
Mr Johnson said many prisoners were now transported by plane or coach.
“The Department has implemented all of the Coroner’s recommendations from his inquiry into the death of Mr Ward and just last month we completed the delivery of 40 new vehicles that meet rigorous standards.
"Improved staff training, contract monitoring, policies and procedures have also been implemented. In my opinion Western Australia is now setting the standard for prisoner transport in Australia and beyond but this doesn’t replace the loss that Mr Ward’s family and community have suffered.”