OHS industry practices

Dinko Tuna Farmers Pty Ltd v Markos [2007] SASC 166
Dinko carried on business as a tuna farmer and employed the employee Grose as a deckhand aboard the vessel Dageraad. On 19 June 2002 Grose fell overboard whilst cleaning the deck of the vessel while it was underway.

A complaint was issued by Ian Markos, an Inspector and Public Officer for the Department of Administrative and Information Services. Dinko was charged on complaint that, as an employer, it had failed to ensure so far as was reasonably practicable that its employee (Grose) was, whilst at work, safe from injury and risks to health, contrary to s19(1) of the Occupational Health Safety and Welfare Act 1986. Specifically:

• It failed to provide and maintain a system for ensuring the employee wore a personal floatation device at all times whilst the vessel was underway;
• It failed to provide and maintain a system for ensuring the sea door on the port side of the vessel was in place and not open;
• It failed to provide and maintain a system for ensuring at least two employees were always in sight of each other whilst the vessel was underway; and
• It failed to provide such information, instruction, training and supervision as was reasonably necessary to ensure that the employee was safe from injury and risks to health, in that the employee was not adequately supervised whilst working on board the vessel.

The complainant’s case was that an inexperienced employee, required to work alone on the deck of a moving vessel, fell overboard through an open sea door, unnoticed by any crew member, without a personal floatation device, and that there were numerous reasonably practicable measures available to the defendant that could have been taken but were not taken, which would have reduced the risk to the employee.

The defendant argued that the offence created by s19(1) had imported into it the common law requirements of duty and breach, and that the complainant was thus required (but had failed) to prove beyond reasonable doubt that:

• The incident that occurred was reasonably forseeable (in accordance with the test formulated by Mason J in Wyong Shire Council v Shirt);
• The conduct of the defendant fell below the conduct that would be expected of a reasonable employer in the circumstances of the defendant.

Dinko pleaded not guilty to the charge on the basis that it had implemented a “buddy system” to ensure safety. It believed the risk of falling overboard was extremely low, and did not recommend that workers wear life jackets while working because they restricted their movement. The company argued that because it was not industry practice to wear life jackets, it was not reasonable for it to enforce a policy of wearing them.

The court found that the offence prescribed by s19 does not require a subjective state of mind; that liability under s19(1) should be determined by reference to the terms of the statutory provision, which obliges an employer to ensure that the employee is safe. The court rejected the contention that common law requirements are imported as elements of the statutory offence.

The court found that the evidence established that there was a forseeable risk of grave injury to an employee in the position of Mr Grose. That risk could have been materially reduced by having a system of requiring and enforcing the wearing of personal floatation devices whilst the vessel was underway. Thus the defendant had not provided and maintained a safe system of work so far as was reasonably practicable. Dinko’s appeal was dismissed.

On 16 November 2007 the High Court refused Dinko special leave to appeal the decision of the Full Bench of the Supreme Court. “Had this appeal succeeded, it could have prevented the development of better safety procedures, by effectively condoning inferior safety practices simply because it was based on industry standard,” SafeWork SA’s chief legal advisor Brad McCloud said. He said the case was an attempt to lower the bar on OHS provisions by linking it to the negligence standard in common law.