Quads, side by sides, survival and the big stick

And even though the new standard does not require operator protection devices (OPD) like the Quadbar on quads bought before October next year, workplace regulators might demand employers fit them to older machines anyway.

Workplace health and safety (WHS) laws right around the country stipulate employers must do whatever is 'reasonably practicable' to reduce the risk of injury.

Ultimately, only a court can decide what that means but WorkSafe Victoria has already issued notices to employers, requiring them to fit OPDs.

"Employers using quad bikes must take all reasonably practicable steps to prevent the risk of a rollover causing death or injury," a WorkSafe Victoria spokesperson said.

"WorkSafe recognises the fitting of approved operator protection devices as an effective method for reducing this risk."

"Where an employer fails to take reasonably practicable steps to reduce that risk, WorkSafe inspectors will not hesitate to take enforcement action."

Eminent WHS lawyer Alan Girle said there was plenty to take into account.

"What's reasonably practicable will always be a complex factual question, but what the ACCC specifies in its mandatory standard will be heavily influential for state and territory courts when considering safety laws in determining what is practical," he said.

"There will be some cases where any of the regulators could not insist that agricultural businesses fit operator protection devices because there is no risk of a rollover.

"In each case, it will come down to the question of exactly how the quad bike is being used and the surrounding circumstances.

"You'd have to look at the terrain, the power of the quad bike, the speed it can get up to, as well as the training and experience of the operators, the PPE they're wearing and the detail of the safety laws in the state or territory where the business is operating."

The effectiveness of OPDs has been hotly debated for almost 20 years and, in 2007, the major manufacturers commissioned Dynamic Research Inc (DRI) to study the Quadbar's predecessor.

That study was repeated in 2012 and 2016, then critiqued and reviewed by others, including an expert commissioned by Federal Chamber of Automotive Industries (FCAI).

There's been a survey of users by the University of NSW and testing of the Quadbar by University of Southern Queensland commissioned by its manufacturer, both critiqued by an academic engaged by the FCAI.

Two more firms have modelled the performance of the OPD using computer simulations.

The ACCC largely dismissed the work commissioned by the FCAI and, in turn, the quad bike manufacturers dismiss the work commissioned by the makers of Quadbar and the UNSW survey.

"We could not be party to a field test using the farmers as the test victims," retiring Honda Australia managing director Robert Toscano said.

He said that, in all but one coroner's inquest, there had been no recommendation to fit quads with OPDs.

"In a court of law, we've been able to convince everybody that for OPDs, at best, more research needs to be done but, in the court of public opinion, we can't win because whenever there's a death on an ATV, it's a tragic, tragic situation and the ACCC and the research they've done has picked up a lot of that public opinion and unsupported evidence."

READ MORE:

In its recommendations to the minister, the ACCC said although it was "technically true" that coroners had not called for OPDs, that was "an over simplification of the coroners' recommendations".

Last week, ACCC deputy chair Mick Keogh hit back at the quad bike manufacturers.

"FCAI has criticised every single step of the way and refused every opportunity to engage in processes either to develop a standard or to consider real avenues that would improve the safety of quad bikes; that has been their modus operandi from day one," Mr Keogh said.

"They have criticised any of the experts that have been brought into the process, they have criticised any of the proposals ... it's very clear, to us anyway, that they don't have any intention of engaging in any steps that would improve the safety of the vehicles; they will do whatever they can to not have that occur."

Asked why the manufacturers did not develop an OPD themselves, Mr Toscano said, "When the manufacturers worked on designing OPDs, they came up with a side-by-side vehicle ... for any sort of OPD to work, the person must be seat-belted to the product."

Side-by-side vehicles (SSV) have risen in popularity over the last few years, too, rising to 43 per cent of Australia's off-road sales in 2019, according to manufacturer data obtained by Stock & Land.

And, while Safe Work Australia's fatality data does not distinguish between quad and SSV-related fatalities, the ACCC and FCAI believe that, from analysis of media reports, half of the 16 deaths recorded in 2020 to date involved SSVs.

Referring to statistics that showed only 10pc of people killed on quads were wearing helmets, Victorian Farmers Federation president David Jochinke said farmers needed to be more aware of safety, irrespective of the equipment they used.

"Just because you've now got a side by side doesn't make you infallible," he said.

"That side by side equipment is now also up there with fatalities for quad bikes still doesn't take away from the fact that there's fatalities with quad bikes.

"We are still one of the most unsafe occupations ... and we've got to do whatever we can with every piece of equipment to reduce it.

"The VFF cannot support any farm machinery or farm practice that is dangerous and could result in serious injuries or worse, fatalities. We will not apologise for taking this tough stance. I cannot be clearer."

Nor could new industrial manslaughter laws, Mr Jochinke said.

"There has been a lot of publicity about quad bikes, significant money has been spent by federal and state governments on rebate schemes, WorkSafe campaigns, a lot of information has been distributed," he said.

"Yet despite all of that, there are still fatalities. That tells me education campaigns are not the answer.

"And it is clear that the government, Safe Work Australia and associated state-based agencies and the ACCC do not agree that education will fix this.

"If this decision saves just one life or reduces the risk of serious injury, then frankly, that's what we stand for."

Victorian farmers have until Tuesday to claim a $1,200 rebate for two quad bike operator protection devices (OPDs) or a safer alternative farm vehicle before the Quad Bike Safety Rebate Scheme closes.