Dinko Tuna Farmers Pty Ltd v Markos

In Dinko Tuna Farmers Pty Ltd v Markos, the South Australian Court of Appeal considered an appeal against a conviction for breach of section 19(1) of the Occupational Health Safety and Welfare Act 1986. The appellant was convicted of failing to ensure the safety of an employee while operating a vessel, which resulted in the employee falling overboard and sustaining injuries. The primary legal issue was whether section 19(1) of the Act incorporated the common law requirements of duty of care and breach, or if the elements of the offence were solely found within the statutory provisions. Additionally, the court needed to determine whether the appellant had ensured its employee's safety so far as was reasonably practicable.

The Court found that the elements of the offence created by section 19(1) were to be found within the statutory provision and did not incorporate the common law requirements of duty of care and breach. The court held that the evidence before it established a foreseeable risk, albeit low, of grave injury to the employee, and that this risk could have been materially reduced by enforcing the wearing of personal flotation devices while the vessel was under way. The skipper of the vessel had recognised the risk and considered the buddy system would guard against it. The Court concluded that the appellant had not provided and maintained a safe system of work so far as was reasonably practicable.

The appeal was dismissed, and the conviction was upheld. The Court held that the Industrial Magistrate's decision to find each of the elements of the offence proved beyond a reasonable doubt was supported by the evidence. The Court further found that the risk of injury and its magnitude were readily foreseeable and that the appellant had failed to take reasonable steps to mitigate the risk. The Court's decision reinforces the importance of employers taking all reasonably practicable steps to ensure the safety of their employees in the workplace.