Dinko Tuna Farmers Pty Ltd v Markos

[2007] SASC 166

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

DINKO TUNA FARMERS PTY LTD v MARKOS

[2007] SASC 166

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice Kelly)

18 May 2007

INDUSTRIAL LAW - INDUSTRIAL SAFETY, HEALTH AND WELFARE - SOUTH AUSTRALIA - OCCUPATIONAL HEALTH AND SAFETY LEGISLATION

Appeal against conviction - defendant convicted of breaching section 19(1) of the Occupational Health Safety and Welfare Act 1986 - whether section 19(1) incorporates, as elements of the statutory offence, the common law requirements of duty of care and breach or whether the elements of the offence are found solely within the statutory provisions - whether the defendant had ensured its employee's safety so far as was reasonably practicable - Held: appeal dismissed - the elements of the offence created by section 19(1) are to be found within the statutory provision - the defendant had not ensured its employee's safety so far as was reasonably practicable.

WORDS AND PHRASES CONSIDERED/DEFINED

"reasonably practicable"

DINKO TUNA FARMERS PTY LTD v MARKOS
[2007] SASC 166

Full Court:      Gray, Layton and Kelly JJ

GRAY J.

1. This is an appeal by Dinko Tuna Farmers Pty Ltd, the defendant and appellant, from a decision of the Full Court of the Industrial Relations Court.  The Full Court reversed the decision of a single Judge and restored the decision of an Industrial Magistrate.  The Full Court restored the conviction of the defendant of a breach of section 19(1) of the Occupational Health Safety and Welfare Act 1986 (SA).

2. The defendant requires the permission of this Court to bring this appeal.[1]  As the submissions on the application for permission would involve the development of the same arguments to be presented on the appeal, the Court directed that full submissions be made, reserving to the conclusion a consideration of the application for permission. 

   [1] Fair Work Act 1994 (SA) section 191(1)(b).

3. A complaint was issued by Ian Markos, Inspector and Public Officer, Department for Administrative and Information Services.  The defendant was charged on complaint that:

   On the 19^th day of June 2002, at or near Port Lincoln in the said State, being an employer, failed to ensure so far as was reasonably practicable that its employee, namely Christopher Grose, was, whilst at work, safe from injury and risks to health; contrary to section 19(1) of the Occupational Health Safety and Welfare Act, 1986.

   The following particulars were provided:

   At all material times the defendant carried on business as a tuna farmer.

   At all material times Christopher Grose (“the employee”) was employed by the defendant as a deckhand aboard the vessel Dageraad (“the vessel”).

   On 19 June 2002 the employee fell overboard whilst cleaning the deck of the vessel whilst it was underway.

   The defendant failed to provide and maintain so far as was reasonably practicable a safe system of work in that:

   it failed to provide and maintain a system for ensuring the employee wore a personal flotation device at all times whilst…