A COURT CASE in Tasmania where young British backpacker, Holly Raper, was rendered quadraplegic with catastrophic brain injuries while riding a quad bike on a King Island farm raises an urgent warning about farm safety — considering that agriculture is potentially the most dangerous business in Australia to be involved in.
Under Workplace Health and Safety legislation, ‘persons conducting a business or undertaking’ must exercise due diligence to ensure that all reasonably practicable steps are taken to ensure workplace health and safety.
For the agricultural industry, what may have been a normal, consistent on-farm practice for years or even decades in all probability are not acceptable now. Moreover, the costs of a Court judgment can far outweigh any steps to become compliant with the law.
The case in Tasmania last month (July 2016) where a Tasmanian farmer was ordered to pay $12 million in compensation to an employee who was injured during a quad bike accident adequately demonstrates that farmers can lose everything if they aren’t compliant with workplace health and safety legislation.
The decision of the Tasmanian Supreme Court means the law is now increasingly clear on what farmers are expected to do when using quad bikes on farms.
A person eminently qualified to offer relevant advice is barrister and head of Primary Employers Tasmania, Glynn Williams, who noted that this court case means helmets, training and bike maintenance are now crucial.
“I encourage farmers across the country to take heed of a recent court decision about quad bikes,” he added, emphasising that this is not simply isolated to Tasmania.
Mr Williams continued: “The judge is saying that the law would hold that person responsible for their own safety and particularly for the safety of any employee on a farm or some other place who might get on a bike without a helmet.”
It is not legally mandated for helmets to be worn on quad bikes.
Mr Williams added that this judgement filled a legal gap.
“Whilst there’s been no legislation around these machines, the common law is clearly, in this case, moving in and saying ‘It’s not good enough. You have to wear helmets’.”
He explained there were four ways the farmer involved in this case was found to be negligent, which other farmers needed to take note of.
“The first was that the rear brakes of the bike weren’t working or weren’t working well enough — that is, the bike should not have been used until it was fixed;
“The second was that one of the tyres wasn’t fully inflated — that is, it shouldn’t have been used unless the puncture had been repaired or the tyre replaced;
“Thirdly, and this is very significant — that the employee had not been provided with adequate training and instruction to allow her to ride the quad bike safely;
“And fourth, and perhaps even most important of all — is that she was allowed to ride without being required to wear a safety helmet.”
General Manager of Brisbane-based Advanced Safety Systems Australia and New Zealand, Dane Taylor, has been emphasising to Agalert.com.au in past weeks that in many cases, farm safety is not given due resect when it comes to complying with the law.
“The archetypal response of farmers is: ‘we’ve always done it this way’.
“Yet, what farmers don’t realise is that they can lose their entire house and farm — everything — if they are not WH&S compliant in the case of a serious accident.”
He agreed with the recommendations of the Primary Employers Tasmania president, Glynn Williams, that farmers must ensure they and their employees wear helmets, maintain quad bikes regularly, including brakes and tyres and ensure all employees are adequately trained.
“But it goes further,” Dane Taylor says: “Farmers need to be compliant with the law to be absolutely safe.”
He quoted figures from Quad Watch, an initiative of Safe Work Australia, stating there were 22 fatalities nationally in 2015.
“Quad bikes remain the biggest risk to farmers on their properties,” he said. “Some two-thirds of on-farm deaths can be attributed to incidents involving quad bikes and All Terrain Vehicles (ATVs).
“This is because they are susceptible to roll-over and can crush the driver.”
Mr Taylor says the quad bike phenomenon is now ingrained in agriculture, and farmers find they can access tight spots with ease, unlike a motor vehicle.
He said that recently the specialist team at ASSA began working on a free download of a Quad Bike Safe Work procedure, that operates in conjunction with its free Safety Starter Kit. (Click here).
Yet they are also susceptible to roll-overs and resultant deaths due to their instability in many cases.
By extension, this has led to coronial inquests across Australia into deaths involving quad bikes in many states across the country.
Glynn Williams added that Coronial inquiries can only make recommendations. “A decision in Court, such as the case in the Supreme Court of Tasmania, sets-out more clearly what the farmers are responsible for in the eyes of the law.
“This is effectively imposing a higher standard on the farm to make sure that the quad bike is fully maintained and everything’s working at any one time,” he said.
The Tasmanian case did not mention roll-over protection bars, nor was it advised that the farmer had a duty of care to install them, yet Dane Taylor acknowledges that legislation is expected to allow for them as a matter of legal necessity in the not-too-distant future.
This comes as the State of Victoria is offering to subsidise mandatory installation of roll-over protection devices. It is understood that New South Wales is also considering the move.
Only this week it was announced that Victorian farmers who purchase a rollover protection device for their quad bike or a replacement side-by-side vehicle will be eligible for a taxpayer-funded rebate of up to $1,200 from September. It is part of a $6-million subsidy scheme, which will run on a ‘first-in’ basis for two years or until funds run dry. Only two ‘operator protection devices have been approved by the Victorian government: Quadbar ($627) and ATV Lifeguard ($1264).
The Victorian Farmers Federation (VFF) will administer the scheme, which is open to all applicants who report farming as their main source of income and own a quad bike for work purposes.
Vice president of the VFF, Brett Hosking, raised the opposition to ‘operator protection devices’ by manufacturers, which he describes as an “ongoing challenge.”
Companies like Honda Australia have pointed to research that suggests roll-over bars could introduce new risks to machinery users.
Concerns have therefore been raised about company liability in the event a roll-over bar caused harm to a user. Others have suggested that the fitting would reduce the effectiveness of the machine for work purposes.
But Mr Hosking said government-funded research showed that the devices did improve rider safety.
“I’m not an engineer so can’t say whether these devices will make a difference to the structural design of the quad bike, but what we do know is they do save lives,” he said.
“I think what you’ll find is that manufacturers will come on board fairly quickly — because ultimately they want to sell quad bikes here in Australia and they’re going to have to come on board if they want to continue with the sales.”
While Mr Hosking said he would be “very surprised” if a quad bike modified with rollover protection would impact insurance coverage, the VFF has urged applicants to make enquiries with their providers.
“Basically, those ones have undergone some level of engineer testing and stress testing to make sure they fit the purpose,” he said.
“It’s not something you can go to your back shed and belt together with a welder, as apt as many farmers are.”