The High Court has injected a significant element of practical common sense into the judging of liability under the safety laws. The standard of perfection that has been required by the Industrial Court in the past has been rejected as an approach.

* The landmark High Court decision in Kirk v WorkCover NSW & Ors will have dramatic repercussions for occupational health and safety prosecutions in New South Wales and across Australia.
* The Decision is likely to be welcomed by employers and expected to change both the way WorkCover NSW will prosecute breaches of the Occupational Health and Safety Act 2000 (NSW) (Act) and the way the legislation is interpreted by not just the NSW Industrial Court, but courts across Australia hearing safety matters.

Facts of the case

Kirk Holdings Pty Limited was the owner of a farm near Picton, New South Wales. Mr Kirk was a director of the Company but had no farming experience and left the day-to-day management of the farm to Mr Graham Palmer. Mr Palmer had over 20 years experience as a farmer and had a large property of his own.

On 28 March 2001, Mr Palmer was killed whilst driving an All Terrain Vehicle (ATV) owned by the Company. Rather than using an established road, Mr Palmer had directed the ATV down the side of hill causing the ATV to overturn.

The Company and Mr Kirk were charged with breaches of the Occupational Health and Safety Act 1983 (NSW) (Act) (the predecessor legislation to the current act), for failing to ensure the health and safety of the farm’s employees.

In an interview on ABC radio, Mr Kirk explained that the initial decisions of the NSW Industrial Court mean that the prosecution did not have to show what Mr Kirk could have done to prevent the accident. The fact that a fatal accident occurred meant that he was guilty of a criminal offence with no right of appeal.

The decision

The High Court held that, the legislation requires the charges to identify the measures which should have been taken by the defendants to obviate an identifiable risk. This requires the statement of the charge to be more specific than simply stating for example, that the defendant “failed to ensure the health and safety of employees.”

The High Court said that “It must specifically consider what constituted the risk and what particular measures should have been taken by the employer to address or obviate that risk.”

Whilst Justice Heydon agreed with the majority’s decision in substance, he provided his own further reasons for his decision and was highly critical of the approach taken by both the Industrial Court and WorkCover NSW.

Justice Heydon felt that the prosecutions against Mr Kirk and the Company should never have been instituted. The accident occurred in circumstances where Mr Palmer, a man of optimum skill and experience, had been inexplicably reckless. It was therefore absurd to prosecute the owner of a farm on the basis that he failed to ensure the health and safety of his employee.

Further he thought the emphasis placed on Mr Kirk’s failure to supervise his employees on a daily basis was astonishing. He held that to require farm owners that do not live on or near their properties to supervise their staff on a daily basis is an obligation that in many instances will be impossible for farm owners to comply with these requirements. This will have significance on the emphasis placed on issues of supervision and reliance placed upon known expertise in future OHS prosecutions

Impact for future OH&S prosecutions

The decision is likely to have four main impacts for the conduct of future OH&S prosecutions.

  1. Most importantly, the decision does not mean that the level of safety that must be provided by employers has in any way been diminished. It will be more important than ever for employers to implement comprehensive safety systems. Employers will now be able to rely on the quality of their systems to assist them in successfully defending any prosecutions.
  2. Prosecutors will be more specific when drafting the particulars of any charge, ensuring that each particular specifically identifies a measure that should have been taken by an employer to obviate an identifiable risk. This will enable defendants to make a more informed decision as to whether to defend a prosecution. It is to be expected that the form of charges will be more regularly challenged unless the Prosecutors around Australia comply with what the High Court has said in Kirk.
  3. Defendants may be more successful in proving one of the defences as they will only be required to prove that it was not reasonably practicable for the employer to adopt the measures listed in the particulars of the charge.
  4. The decision will also have a significant impact on the way the industrial courts across Australia interpret the duties placed on employers by the various OH&S acts and what acts or omissions will constitute breaches of those duties.