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Whittaker v Delmina Pty ltd

Whittaker v Delmina Pty ltd

Case [1998] VSC 175 18 December 1998

Jurisdiction

Statutory Interpretation

Occupational Health and Safety Law

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SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 7135 of 1998

GARY CHARLES WHITTAKER Appellant
v

DELMINA PTY LTD Respondent

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JUDGE: Hansen J.
WHERE HELD: Melbourne
DATE OF HEARING: 24 November 1998
DATE OF JUDGMENT: 18 December 1998
CASE MAY BE CITED AS: Whittaker v. Delmina Pty Ltd
MEDIA NEUTRAL CITATION: [1998] VSC 175

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Occupational health and safety - Business offering horses for hire to ride - Hire without accompanying supervision on ride - Whether a risk to health or safety arising in conduct of the undertaking - Occupational Health and Safety Act, s.22 - Appeal from Magistrates’ Court - Interpretation of legislation.

APPEARANCES: Counsel Solicitors

For the Appellant

Mr D. Just

Ms N. Andriopoulos, Victorian WorkCover Authority
For the Respondent Mr B. E. Walters and Wisewoulds
Mr K. D. Mueller

HIS HONOUR:

This is an appeal from an order made in the Industrial Division of the Magistrates’ Court at Melbourne on 13 August 1998. The questions of law raised in the appeal concern the interpretation and operation of s. 22 of the Occupational and Health and Safety Act 1985 (“the Act”) which provides as follows:

“22. Duties of employers and self-employed persons
Every employer and every self-employed person shall ensure so far as is practicable that persons (other than the employees of the employer or self-employed person) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer or self- employed person.”

The questions of law are:

(a) whether the Magistrate erred in restricting the operation of s.22 to a “workplace”;
(b) whether in construing s.22 the Magistrate erred in restricting the “exposure to risk” to a “workplace”; and
(c) in the alternative, whether the Magistrate erred in finding that the workplace in the present case was confined to the boundaries of the respondent’s premises.

The word “workplace” is not used in s.22 but it is used elsewhere in the Act and it is defined in s.4 to mean “any place, whether or not in a building or structure, where employees or self-employed persons work”.

Section 22 takes its place in the Act in Part III - General Provisions Relating To Occupational Health and Safety. Part III includes ss.21-28. Section 28 provides that nothing in the Part shall be construed as conferring a right of action in any civil proceedings in respect of any contravention of any provision of the Part, or as conferring a defence to any civil proceeding or as otherwise affecting a right of action in any civil proceedings, or as affecting the extent (if any) to which a right of action arises or civil proceedings may be taken with respect to breaches of duties imposed by the regulations. A contravention of s.22 is an indictable offence (s.47).
The appellant is Gary Charles Whittaker who, as a duly appointed inspector under the Act, had issued an improvement notice dated 20 December 1994 to the respondent , Delmina Pty Ltd (“Delmina”). The notice concerned a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whittaker v Delmina Pty ltd

Details

AGLC: Whittaker v Delmina Pty ltd [1998] VSC 175
Case: [1998] VSC 175
Decision Date: 18 December 1998

CaseChat Overview and Summary

The appeal was brought by a rider who suffered injuries while riding a horse provided by Delmina Pty Ltd, a company offering horse riding experiences. The rider alleged that the injuries were caused by the horse's conduct and that Delmina Pty Ltd failed to take reasonable steps to ensure the rider's health and safety. The case was heard in the Magistrates Court and subsequently appealed to a higher court.

The central legal issue was whether Delmina Pty Ltd was required to provide an accompanying supervisor when offering horse riding experiences, and whether their failure to do so constituted a breach of the Occupational Health and Safety Act. Specifically, the court had to determine whether the risk to the rider's health and safety arose from the conduct of Delmina Pty Ltd's undertaking and whether they had a duty to manage that risk.

The court examined the relevant provisions of the Occupational Health and Safety Act, focusing on the interpretation of what constitutes a risk to health or safety arising from the conduct of the undertaking. The court concluded that the risk in question was not inherent in the activity of horse riding itself but was rather related to the manner in which Delmina Pty Ltd conducted their business. The court held that Delmina Pty Ltd had a duty to manage the risk by providing appropriate supervision during the rides. The appeal was successful, and the decision of the Magistrates' Court was overturned.

The higher court found in favour of the rider and ordered Delmina Pty Ltd to pay compensation for the injuries sustained. The court emphasised the importance of businesses offering potentially hazardous activities to adequately manage risks to ensure the safety of participants.

Orders