Introduction
The recent NSW Industrial Court decision of Inspector Brandie v Hogan [2012] 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.
Background
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 ensure that:
- 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 travelling.
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' premises).
Decision
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 risk.
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 applicable".
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 Standards
- 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 [2012] 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.
