High Court signals change of approach to OH&S prosecutions

4 February 2010

On 3 February the High Court handed down its decision in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales quashing a New South Wales OH&S conviction. This decision will have a significant impact on OH&S prosecutions across Australia.

The NSW WorkCover Authority prosecuted Kirk Group Holdings, the owner of the farm, and one of its directors, Mr Kirk, following the death of the farm's manager, Graham Palmer. Mr Palmer drove an all-terrain vehicle off a sealed road and down a steep slope while delivering supplies to contractors working on the farm. The vehicle overturned and Mr Palmer was killed. Through the course of the proceedings the prosecution did not establish why Mr Palmer chose to prefer the dangerous route. 

Mr Kirk and Kirk Group Holdings alleged that it was not foreseeable that a qualified and competent employee such as Mr Palmer would disregard warnings and unnecessarily drive down a slope. The NSW Industrial Relations Commission found Kirk Group Holdings and Mr Kirk guilty of breaching their obligations under the Occupational Health and Safety Act 1983 (NSW). They were fined $121,000 for failing to ensure the safety of employees.

The Full Court of the High Court unanimously quashed the NSW IRC's decision on the grounds that it had exceeded its jurisdiction and the prosecution had not been properly conducted. WorkCover had failed to identify what measures Mr Kirk and Kirk Group Holdings could have taken to prevent the accident thus denying them the opportunity to properly present a defence. The High Court held that it was "inexplicably reckless" for Mr Palmer, a highly skilled and experienced farm manager to have chosen to prefer a dangerous slope to the sealed road. Further, it was unreasonable to expect Mr Kirk, a man with no farming experience and health problems, to supervise the farm employees on a daily basis.

An order for costs was made against WorkCover for Mr Kirk and Kirk Group Holding's costs in the Court of Appeal and High Court appeals.

This decision will mean that regulators (particularly in Queensland and New South Wales) seeking to commence proceedings against employers for a breach of OHS laws will now be required to specify the risk associated with the incident as well as what steps should have been taken to prevent the injury or death. Failure to satisfy these requirements will mean that the defendants cannot properly answer a prosecution case.

For further information, please contact: 

Nigel Inglis | Associate
Mullins Lawyers
t +61 7 3224 0364
f +61 7 3224 0333
ninglis@mullinslaw.com.au