In brief
The NSW District Court decided that a farm operator was guilty of failing to provide a safe work environment after a worker died chasing a dingo. Senior Associate Tegan Ayling and Lawyer James Daniel report.
How does it affect you?
This case is a reminder that:
- when fulfilling their duty to provide a safe workplace, companies need to expect that workers will be careless, inattentive or inadvertent;
- it is not enough to make safety equipment available: policies must be implemented and enforced to ensure the equipment is actually used by workers; and
- systems setting out how safety risks will be controlled should not only be written down but should be actively communicated to workers.
Background
Mr Staker worked for KD & JT Westbrook Pty Ltd on a farm in north western NSW as a sheep musterer.
On 22 September 2014, Mr Staker was mustering sheep on a motorbike with Mr Killeen and Mr Hill. Mr Killeen was also on a motorbike. Mr Hill, Mr Staker's superior, was operating a gyrocopter to muster the sheep.
During the muster, Mr Hill radioed to Mr Staker and Mr Killeen that there were two dingos near the gyrocopter. Both Mr Staker and Mr Killeen then began to separately chase the dingos. It was the policy at the farm that if dingos were seen they would be chased and killed. While chasing the dingo, Mr Staker, who was a competent motorbike rider, fell from his bike and was killed. He was not wearing a helmet.
Westbrook pleaded not guilty to breaching work health and safety legislation and exposing Mr Staker to a risk of death or serious injury.
Decision
The District Court decided that Westbrook had failed to comply with its duty to provide a safe workplace. Although the company had made helmets available to the workers, they needed to put policies in place to make sure the helmets were used. Wearing a helmet could not be left to the choice of the individual worker. The company also needed to provide information to the workers of the risks.
Westbrook argued, among other things, that chasing dingoes was not part of mustering and that Mr Staker was riding the motorbike dangerously and for his own enjoyment. This meant he was not at work in the business at the relevant time. Further, wearing a helmet while mustering was not reasonably practicable.
It was decided that workers had previously been instructed to chase away dingos due to the risk they posed to livestock and that this was an integral part of the work. For this reason, the duty to provide a safe workplace still applied while Mr Staker was chasing the dingo. Although the Court did not agree that Mr Staker was riding dangerously, it said that the duty would have also applied if Mr Staker was riding his motorbike at high speeds – careless worker behaviour must be considered in providing a safe workplace. Lastly, although helmets were not an ideal solution particularly in hot weather, it was a reasonably practicable step evidenced by Westbrook introducing a policy requiring workers to wear helmets and implementing this at minimal cost.
Westbrook was found guilty and a sentence is yet to be imposed.
Reference: SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255