The Work Health and Safety Tribunal has upheld an objection to a WorkSafe discovery application, finding that the documents did not relate to the matter in question, or were not discoverable.

Background

The applicant was a farming company, and the respondent was the WorkSafe Western Australia Commissioner. A WorkSafe Inspector (‘Inspector’) issued an Improvement Notice (‘Notice’) to the applicant identifying that its employees were exposed to a hazard relating to riding a horse without a helmet. The applicant referred the notice to the Tribunal for further review, and later objected to the discovery of Category 1 documents which covered: all records or documents relating to injuries sustained by any of the Applicant’s staff while working with horses since 1 January 2016.

Contentions

The applicant contended Category 1 was too broad, as it sought documents relating to all the applicant’s employees and not just those employed at Carlton Hill Station where the contravention of s 19(1) of the Occupational Safety and Health Act 1984 (WA) was said to have taken place. The applicant contended it should not be required to discover documents relating to all horse related injuries beyond the confines of the specific hazard and relevant practicable measures.

The respondent contended that Category 1 was relevant as it would demonstrate the unpredictability of horses and the causes and prevalence of falls from horses. The respondent contended Category 1 was relevant to the effectiveness of the applicant’s hazard mitigation efforts at Carlton Hill Station.

Findings

The Tribunal found that a document will be discoverable if it relates to the matter in question. The Tribunal found that the matter in question was whether the Inspector was justified in forming the opinion that she did when issuing the Notice.

The Tribunal noted that it was not apparent that the Inspector’s opinion related to all the applicant’s staff, and that neither the Inspector’s opinion nor the applicant’s reasons for decision refer to workplaces other than the Carlton Hill Station.

The Tribunal noted it was unclear why documents about injuries generally sustained while working with horses could or would demonstrate the prevalence of falls from horses or why they are necessary for the fair disposal of the case. The Tribunal noted it did not appear the Inspector’s opinion was framed to relate to the unpredictability of horses, or general horse related injuries.

The Tribunal found that the documents sought in Category 1 were not discoverable to the extent that they went beyond serious injury or death resulting from a rider falling from a horse and receiving impact to the head at Carlton Hill Station since January 1, 2016.

The Tribunal found that the documents in Category 1 were not necessary for the fair disposal of the case, and it would not be just to order they be discovered. The Tribunal upheld the applicant’s objection to the discovery application and asked the parties to confer and write to the Tribunal’s Associate proposing any orders the parties say the Tribunal should make to give effect to its reasons.

The decision can be read here.