Ignorance is no excuse

Posted by Andrew McGiffert |15 Dec 12 | 2 comments

In a recent NSW Industrial Court hearing the former owner of Port Stephens Go Kart Hire, Michael John Hogan, was fined $32,000 and ordered to pay $18,000 in costs, for failing to ensure the safety of a 26 year old patron who died after a loose fitting attachment became entangled in the rear drive axle of a go kart and strangled her.

The owner pleaded guilty to s8(2) of the Occupational Health and Safety Act 2000 (the incident occurred prior to the WHS Act implementation), which states:

An employer must, so far as is reasonably practicable, ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

Whilst s8(2) does not specifically state the owner must refer to Australian Standards there is an expectation that a business owner will become aware of and comply with the Australian Standards that apply to their operations, a point expressed by the Industrial Court.

Two Australian Standards (AS 3533.1 – 2009 Amusement rides and devices, Part 1: Design and construction; and AS 3533.2 – 2009 Amusement rides and devices, Part 2: Operation and maintenance) applied to the go-kart business, the Court heard. 

These Standards required go-kart riders to “not wear loose fitting clothing or accessories that could become entangled in any part of the kart”, and prohibited patrons with such clothing or accessories from participating “where there is a risk of entanglement”. 

The Standards also required owners to provide “signs for the control of patrons, the safe use of a device or the operating restrictions for a device”, and to “carry out a detailed check of each patron” to identify any loose or baggy clothing. 

It was found that the owner:

  • Failed to stop patrons wearing baggy clothing before operating a go-kart;
  • Failed to properly guard go-karts;
  • Failed to properly supervise activities at all times; and
  • Failed to undertake a risk assessment

Industrial Court Vice President Justice Michael Walton said the risk could have been avoided if the owner had taken safety measures that were “entirely” within his control. 

“Whilst the [owner] submitted that, at the time of the incident, he was unaware of the existence of the relevant Australian Standards, his counsel, nonetheless, properly accepted that, as the operator of the business, it was his responsibility to be aware of and conform with those Standards as applicable,” he said. 

The woman had attended the premises with her husband, brother and two young children. 

To view the judgement click here.

Inspector Brandie v Hogan [2012] NSWIRComm 138 (7 December 2012)

2 Responses

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