Easy OHS

Huge Ramifications for OHS over Kirk High Court Decision

Sunday, March 07, 2010

Middletons Lawyers has reviewed the recent High Court decision regarding Kirk v Workcover NSW and advise this case will have dramatic repercussions for occupational health and safety prosecutions in New South Wales and across Australia.

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.

Kirk Holdings Pty Limited (Company) 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.

At first instance, the Industrial Court convicted both Mr Kirk and the Company and financial penalties were imposed. Mr Kirk subsequently appealed this decision to the Court of Criminal Appeal of the Supreme Court of New South Wales and the Court of Appeal contending that the nature of the charges against him made compliance with the Act impossible. The matter was eventually brought before the High Court.

Key points from the decision
There are important issues in the judgment in terms of the nature of the obligations placed upon duty holders, as well as significant criticisms of the practice and procedure of safety prosecutions in NSW.

The High Court was highly critical of the way in which the charges against both the Company and Mr Kirk were drafted.

Effectively, the Prosecution had simply taken the words from the legislation and applied them to the use of an ATV. In doing so, the Prosecution relied on a principle which stated that the Prosecutor did not have to specifically identify what measures a defendant should have taken to avoid a risk.
The High Court has now dismissed this principle as being contrary to the intention of the legislation.

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."

By requiring the Prosecutor to plead the charges in this way, the Defendant will then be in a position to know whether or not it will be possible to make out a defence with respect to those allegations.

If you are currently a defendant or involved in a prosecution, you will need to review closely the nature of any charge which you are currently facing because the High Court has effectively dismissed longstanding prosecutorial practice in NSW.

Defendants as witnesses
During the hearing at first instance it was agreed by both parties that Mr Kirk would appear as a witness for the Prosecutor.

The High Court was highly critical of this approach stating that the Industrial Court is bound by the rules of evidence in criminal proceedings which clearly provide that a defendant may not appear as a witness for the Prosecution.

According to Justice Heydon, this requirement "is an absolutely fundamental rule underpinning the whole accusatorial and adversarial system of criminal trial in New South Wales."

It was not open to the Industrial Court to dispense with this requirement, irrespective of any agreement made by the parties. To do so constituted a jurisdictional error and in addition to the errors in the construction of the duty imposed on employers required the convictions of both Mr Kirk and the Company to be quashed.

Heydon's criticisms
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 a number of impacts for the conduct of future OH&S prosecutions.

  • 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. 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.

  • 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.

  • Doubtless the result in this case will cause Prosecutors around Australia to more carefully consider the circumstances in which an individual is charged with a breach of the safety laws.

    For a direct reference to this article from Middletons website please follow the attached link: 



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