Whittaker v Delmina Pty ltd

In the case of Whittaker v Delmina Pty Ltd, the dispute centred around the occupational health and safety obligations of a business that provided horses for hire to ride. The plaintiff, Whittaker, alleged that the defendant's conduct in offering horse riding without accompanying supervision constituted a risk to health or safety, in breach of the Occupational Health and Safety Act. The matter was brought before the court to determine whether the defendant's conduct constituted a breach of the statutory duty under section 22 of the Act, which requires an employer to ensure, so far as is reasonably practicable, the health and safety of all workers and others. This appeal arose from a decision of the Magistrates' Court.

The primary legal issue before the court was the interpretation of section 22 of the Occupational Health and Safety Act and its application to the defendant's conduct of offering horse riding without supervision. The court was required to consider whether the defendant's conduct constituted a risk to health or safety, and if so, whether the risk was reasonably practicable to eliminate or minimise. The court also needed to assess whether the defendant had taken all reasonably practicable steps to protect the health and safety of the plaintiff, who was injured during the ride.

The court held that the defendant's conduct in offering horse riding without supervision did indeed constitute a risk to health and safety. The court found that the risk was reasonably practicable to eliminate or minimise by providing accompanying supervision during the ride. The court further determined that the defendant had failed to take all reasonably practicable steps to protect the plaintiff's health and safety, as required by section 22 of the Occupational Health and Safety Act. Consequently, the court found the defendant in breach of their duty of care and awarded damages to the plaintiff.

The court's final orders included a determination that the defendant was liable for the plaintiff's injuries and awarded damages for pain and suffering, medical expenses, and loss of income. The court also ordered the defendant to pay the plaintiff's legal costs. The decision underscores the importance of employers taking all reasonably practicable steps to protect the health and safety of individuals participating in activities offered by their business.