Most employers are aware of the occupational health and safety duties they owe to employees. Less well understood, however, are the obligations which extend beyond the workforce, to non-employees and other persons. Under section 23 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act), employers are required to, so far as is reasonably practicable, ensure that persons other than employees are not exposed to risks arising from the conduct of their business.

A recent decision of the County Court in Victoria, DPP v Amicus [2025] VCC 1973, provides a stark illustration of just how far duties extend under the OHS Act, particularly in the care industry or where vulnerable individuals are involved. It also signals a growing willingness of courts to impose less commonly used sanctions, including adverse publicity orders, to promote general deterrence.

The patient in this case had been receiving 24-hour supported independent living services from Amicus Community Services Ltd (Amicus) for several years. She suffered from significant disabilities, including epilepsy, and experienced frequent seizures, including at night. Her treating physician described the risk of nightly seizures, and therefore the risk of serious injury or death, as very high.

On 6 May 2021 at approximately 1:18am, the patient had a seizure and fell from her bed onto a crash mat. The fall activated an alarm designed to alert staff, which sounded for around 30 seconds. The overnight carer did not respond. The patient died soon after, and no visual check was conducted until 9:06am, when a relieving employee found her unresponsive.

While Amicus notified police and the NDIS Commission, WorkSafe was not notified until January 2022 after the patient’s mother raised concerns. Amicus was charged and convicted of failing to ensure that persons other than employees were not exposed to risk and failing to notify WorkSafe of a reportable incident. The non-for-profit care provider pleaded guilty and was fined a total of $370,000. The Court also imposed an adverse publicity order requiring Amicus to publicise the circumstances of its offending on its website.

Application to the workplace

While this case arises in the disability care sector, the observations made by Judge Rozen are directly applicable to other workplaces managing safety risks.

The prosecution’s case centred on Amicus’ failure to implement reasonably practicable measures to ensure the patient was properly monitored overnight. It was alleged that Amicus failed to establish and enforce a system requiring regular, direct observation between midnight and 6:00am. This included failing to require staff to conduct physical bedside checks at least every two hours (and when the alarm sounded), failing to adequately train staff in those requirements, failing to implement an effective checklist or recording system, and failing to require staff to acknowledge and understand the monitoring obligations before commencing unsupervised shifts.

Although Amicus had documentation in place, including a Community Support Worker Manual, the Court found that these measures were not implemented in practice. Judge Rozen found that informal monitoring practices communicated orally between staff did not amount to a safety system.

He stated that:

‘While I accept that there was a monitoring practice that was passed on by employees orally, this is not a safety system as the events of the night in question clearly reveal. This was not a case of employees failing to adhere to systems put in place by management.‘

The Court described the conduct as a ‘significant departure’ from the standard required under the OHS Act.

Judge Rozen found that the relevant duty under the Act is a demanding one, requiring employers to take proactive steps to identify and control risks, rather than responding to incidents after they occur:

‘It has been stated by the Court of Appeal on more than one occasion that employers are required by the Act to take an active, imaginative and flexible approach to the safety of those who may be affected by their undertakings. An employer must identify risks to health and safety and take steps to obviate those risks. Employers must not wait until disaster strikes before addressing deficiencies in their safety systems.’

The Court made clear that this was not a case of employees failing to follow procedures. Instead, it was a failure by management to establish adequate safety systems in the first place. In that sense, the offending fell within the more serious category of breach. Employers must ensure that risks are managed through properly designed, documented and implemented systems, rather than relying on informal or inconsistent practices.

As OHS obligations are risk‑based, employers will be judged not simply by whether harm occurs, but by whether their systems adequately eliminate or minimise risks to health and safety, so far as is reasonably practicable. The absence of prior incidents will not demonstrate compliance.

Key takeaways for employers

• Duties extend beyond employees
  OHS obligations apply to anyone affected by an employer’s undertaking. This is particularly significant in the care sector, where duty holders owe clear obligations to patients, clients and visitors under section 23 of the OHS Act. Where vulnerable individuals are involved, the expected standard is the highest level of protection reasonably practicable.
• Policies must operate in practice
  Written procedures are only effective if they are implemented. Safety‑critical processes must be clear, prescriptive and consistently followed, not left to informal or unwritten practices. The presence of a manual alone will not be sufficient if it is not embedded in day-to-day operations.
• Notification obligations are immediate
  Reportable incidents must be notified to WorkSafe as soon as they are identified. Internal escalation processes and responsibilities should be clear and well understood. Failing to notify WorkSafe when required is an indictable offence.
• Adverse publicity orders are emerging as a real risk
  Courts are increasingly willing to impose orders requiring organisations to publicise their offending, increasing the exposure to possible reputational consequences.
• Remediation does not eliminate liability
  Although Amicus received credit for its cooperation, lack of prior convictions and post-incident remedial measures, this did not prevent the imposition of a substantial fine. Following the incident, Amicus introduced measures including active night monitoring records with half-hourly intervals and updates to its supported independent living manual and position descriptions to incorporate monitoring requirements. However, these steps went to mitigation only and did not reduce the seriousness of the original breach.

Conclusion

While the findings in DPP v Amicus are grounded in the disability care context, the principles apply broadly to organisations managing safety risks under the OHS Act. The decision reinforces that employers must adopt a proactive approach to risk management and ensure that their systems operate effectively in practice, not merely on paper.

The case also signals a continued focus by the courts on general deterrence and a willingness to use additional tools, such as adverse publicity orders, to promote compliance. As a result, organisations should not assume that conventional penalties will be the only consequence of a breach.

If you are concerned about your organisation’s compliance with the OHS Act, or the adequacy of your safety management systems, please contact our Workplace Relations & Safety Team for assistance.

This article was written by Tony Lawrence, Partner, Greg McCann, Partner, Nick Zavattiero, Solicitor, Charlie-Ashe Humfrey, Graduate, and Laura Walsh, Law Clerk.