As we progress through the year and transition to Summer, October presents a good opportunity for employers to conduct a bit of a spring clean.
The reason for this is that October is Work Safe Australia’s ‘national safe work month,’ which is an initiative aimed at building safe and healthy workplaces for all persons.
But how far removed does a person have to be from a workplace to still be entitled to safety?
This question was recently considered in the NSW case, Safe Work NSW v Wagga Motors Pty Ltd where a worker was killed after using a horse float repaired by the defendant.
In 2015, a horse float was taken to be repaired because of leaking oil from its hydraulic tail gate. The nature of the leak was that when the oil level became too low in the hydraulic system, it created a risk that the tail gate would be released unpredictably and fall to the ground with considerable force.
The owner brought the float to the defendant for repairs. While the leak was seemingly fixed the tail gate section was not adequately tested by the defendant to ensure that it would no longer fall without warning.
The day following the horse float’s return to the owner, one of the owner’s workers, a horse stud, was required to conduct work on the float.
Later that afternoon, the worker was found deceased, trapped under the tail gate of the float.
The issue that followed was for the Court to determine whether the defendant owed a duty to ensure the safety of the deceased.
Defined as an ‘other person’ under the Work Health and Safety Act 2011 (the Act) the relevant section provides that:
‘A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.’
The defendant argued that it did not owe a duty of safety to the deceased worker, as the worker did not fall under the category of ‘other persons,’ as defined in the Act. This was because the accident did not occur at the defendant’s workplace.
The prosecution however, argued that despite the accident occurring outside the workplace, the Act did not impose any temporal or geographical location for which the class of ‘other persons’ fell into.
It merely imposed a duty to ensure the health and safety of those ‘other persons’ who are put at risk because of risks ‘arising from work’.
The Court found that, while the Act does not extend a duty to ensure the safety of ‘other persons’ in the world at large, the class of persons to whom the duty is owed is limited by their proximity to the risk created by work carried out as part of a business or undertaking.
The defendant was held to have the responsibility of needing to take reasonably practicable steps to protect against the risk created by things such as the inadequate repair of a vehicle.
The employee fell into the category of ‘other persons’ when the employee came into the proximity of the tail gate. Further still, by operating it, the employee fell further into this proximity because the defendant did not take the reasonable steps to ensure the adequate repair of the tail gate.
The case presents a difficult and often forgotten aspect of work health and safety, in that safety doesn’t just stop in the workplace, but applies to scenarios and areas affected by the work conducted in the workplace.
Businesses need to ensure that their safety framework takes into consideration these ‘other persons’ that they owe a standard of care to.
Given this case is so recent and Work Safe Australia’s ‘national safe work month’ push, now, more than ever, is a good time for businesses to consider parts of their health and safety management that could need improvement.
Should you require an analysis of your business health and safety framework or are aware of areas that need a spring clean, contact one of our work health and safety experts for advice.