Farmers need to be conscious of OHS liability risks in quad bike purchases

There has been a marked increase in the purchase of quad bikes over the last few months, which has in part been attributed to the declarations by some of the major quad bike manufacturers that they will withdraw from the Australian market as a result of the quad bike safety regulations put in place by the Australian Consumer and Competition Commission (ACCC).

Whilst a good harvest season has also given cause for many farmers to update and replace their existing equipment, the VFF is concerned that farmers who purchase quad bikes without Operator Protective Devices (OPD’s) in place on their new machines may leave themselves exposed to risks of criminal prosecution for the offence of workplace manslaughter, introduced into the OHS Act by the Victorian Government, which took effect from 1 July 2020.

The VFF is urging its members to ensure that they factor in the purchase and installation of OPD’s onto the new quad bikes that they are purchasing.

Breaches of the workplace manslaughter offence will be characterised by three factors. Whether a duty was owed under the Act (e.g. the employer duty to provide a safe workplace); whether a death was caused by the conduct of the business or its officers; and the conduct of the business, or its officers, was negligent.

Proving the first element is something that WorkSafe already does in bringing about OHS prosecutions. The employer duties under the Act are premised on the concept to ‘so far as is reasonably practicable’.

The test of what is reasonably practicable is an objective test weighing up and number of factors, including taking into consideration ‘the ways and means available to prevent the risks’ and ‘what a person knows or ought reasonably to know.

In addition to proving whether a duty holder failed to meet their duty to the extent that it was reasonably practicable WorkSafe will now also investigate whether the company or its officers were negligent in their decision making.

The state of knowledge of the need for OPD’s on quad bikes is now significant in the farming industry in Australia and suitable protective devices are readily available in the marketplace.

There have already been significant landmark civil decisions. During 2019, a court ordered a farmer to pay $400,000 in compensation to an individual injured on farm while riding the farmer’s quad bike.

Farmers now need to be live to the increased risks of criminal prosecution for workplace manslaughter, which carries with it potential fines of up to $16.5m for a corporation and up to 25 years jail for officers of organisations, in making their purchasing decisions.

Some farmers may approach the idea of purchasing their quad bikes whilst they are still available for purchase without OPD’s installed because it is their preference to not have the devices fitted.

Whilst the requirements for mandatory installation of OPD’s under the Consumer Goods (Quad Bikes) Safety Standard 2019 do not take effect until October 2021 farmers should be mindful that this stipulation applies to manufacturers and that farmers, as employers, have to have regard for the state of knowledge that applies to themselves (i.e. not the manufacturers) today.

Members are urged to consider their decision making not in the context of the rules that will apply to manufacturers and dealers from next year but how the OHS laws could possibly be applied to themselves from 1 July 2020 onwards.

Have you got a quad bike related safety question you want answered? Call our farm Safety Team on 1300 882 833.