The recent NSW Industrial Court decision of Inspector
Brandie v Hogan  NSWIRComm 138, reinforces the link
between ensuring safety "so far as is reasonably
practicable" and the need for a business to ensure it
identifies and meets the relevant Australian Standards that apply
to the business' operations.
Michael Hogan, who at the relevant time operated Port Stephens
Go-Kart Hire, was prosecuted by WorkCover NSW for failing to ensure
the safety of a 26-year-old patron. The patron died after she was
strangled by her loose-fitting hijab that became entangled in the
rear drive axel of a go-kart.
On the day of the incident Hogan's son, Mark Hogan failed to
check the woman's clothes and was the only employee working at
the premises at the time and was performing multiple roles,
including track supervisor and track attendant
The Australian Standards require that the business operator must
riders do not wear loose fitting clothing or accessories that
could become entangled in any part of the go-kart
a detailed check of each patron is conducted prior to allowing
the patron to operate the go-kart
a supervisor be in a position at all times to supervise the
entire track, with no other duties while the carts are
Finally, Hogan failed to provide any formal training program to
his son (or other employees) on the dangers presented by loose
items carried or worn by patrons.
Hogan pleaded guilty to breaching his obligation to ensure , so
far as is reasonably practicable, that a person other than an
employee (the patron) was not exposed to risks to their health or
safety arising from the conduct of the go-kart operation while the
patron was at Hogan's place of work (the business'
In his decision, Vice President Justice Michael Walton stressed
that the control Hogan had over the business' operations gave
him the opportunity to take steps to eliminate or avoid the
In relation to the applicable Australian Standards, the court
stated that "it was his [Hogan's] responsibility to be
aware of and conform with those [Australian] Standards as
Hogan was fined A$32,000, which included a 25% discount given
his early guilty plea, cooperation and contrition. He was also
ordered to pay an additional A$18,000 to cover the costs of the
prosecutor for the proceedings.
Lessons for business
This decision reinforces the need for businesses to ensure that
they take the time to:
identify all relevant Australian Standards that may apply to
their business tasks
take effective steps to give effect to these Australian
ensure that all workers understand how to apply and comply with
the Australian Standards.
While the Australian Standards may not directly form part of the
statutory health and safety obligation it will be very difficult,
if not impossible, for a business to argue that it implemented
health and safety steps that were sufficient to meet the "so
far as is reasonably practicable" test if, the business is
ignorant of or fails to meet an applicable Australian Standard.
Our teams have a wealth of experience assisting employers with
respect to their work health and safety obligations. Please contact
us if you want to discuss these requirements further.
The full text of the judgement of Inspector Brandie v
Hogan  NSWIRComm 138 can be read here.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Women citation acknowledging our commitment to workplace
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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