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Client Update: High Court quashes employer's OHS conviction

4 February 2010

In brief: Yesterday the High Court unanimously quashed the conviction of an employer-company and its director for breaches of its OHS obligations following the fatality of an employee.1 The court's decision will have a significant impact on the interpretation of NSW employers' OHS duties and the way in which prosecutions are brought for breaches of all OHS legislation in Australia. Partner Peter Arthur (view CV) and Lawyer Jonathan Adamopoulos report.

Facts and background

Graham Palmer was employed by Kirk Holdings Pty Limited as the manager of a farm. Mr Kirk, who was the director of the company, did not have any experience in farming and did not have a day-to-day role in the operation of the farm. Mr Palmer, who had run a large property of his own and was considered to be a very competent person, took all responsibility in the running of the Kirk farm, including the implementation of safety measures. The company purchased an All-Terrain Vehicle (ATV) on the recommendation of Mr Palmer. On 28 March 2001, when Mr Palmer was towing three lengths of steel using the ATV, he left a purpose-built road and drove overland down the side of a hill. The ATV overturned and Mr Palmer was killed.

The company was charged with offences under sections 15 and 16 of the Occupational Health and Safety Act 1983 (NSW) for failing to ensure the health and safety of Mr Palmer on the farm. Mr Kirk was also charged with an offence under s50 which deems that a director has contravened the Act where the company is in breach.

Mr Kirk and the company pleaded not guilty to the charges, relying on the defence in s53(a) that it was not 'reasonably practicable' for the defendants to comply with their duties, since it was unforeseeable that Mr Palmer would ride down the side of the hill as he did. Justice Walton of the New South Wales Industrial Relations Commission found both the defendants guilty, and fined Mr Kirk and the company $11,000 and $110,000 respectively. The defendants then appealed against their convictions to the Full Bench of the IRC, the New South Wales Supreme Court and finally the Court of Criminal Appeal. Each of these appeals was unsuccessful. As reported in our July 2009 Focus, the defendants were then granted special leave to appeal to the High Court.

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The High Court's decision

The High Court allowed the appeal and quashed the convictions of Mr Kirk and the company. In its reasoning, the court addressed several key issues regarding the interpretation of the duties arising under the NSW OHS Act and the way in which the matter had been prosecuted.

Deficiencies in the statement of the charges

The charges against the defendants did not identify what measures should have been taken to prevent the risks of injury to Mr Palmer, for which the defendants were prosecuted. In addition, aside from the failure to ensure that only trained people used the ATV, the charges did not specify the respects in which the company had failed to ensure Mr Palmer's health and safety. This deficiency in the particulars was considered unfair because it deprived the defendants from 'knowing what measures they had to prove were not reasonably practicable'.2

Interpretation of the employer's duties

The court also disagreed with the IRC's interpretation of ss15 and 16 of the NSW OHS Act. If the prosecution did not have to establish what measures could have been put in place, it effectively meant that the defendants were obliged to establish that no reasonably practicable measures of any kind could have prevented the risk. The court held that this approach did not accord with the Act:

A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures [the Company] should have taken, was that it was denied the opportunity to properly put a defence under s53(a). Instead. [the Company] was required to show why it was not reasonably practicable to eliminate possible risks associated with the use, or possible use, of the ATV.3

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Implications

Although the High Court was dealing with the OHS Act of 1983, many of the relevant provisions appear unchanged in the Occupational Health & Safety Act 2000 in New South Wales. The decision will necessitate a change in the way in which WorkCover frames its charges for breaches of OHS duties. It will now have to particularise the specific risks that the defendant has allegedly failed to address and the measures that could have been taken by them. By knowing exactly what failures are alleged, employers will be in a better position to establish the defences available to them under s28 of the OHS Act of 2000 and it will be easier for directors to discharge the 'due diligence' defence available to them under s26.

The decision is also likely to influence the interpretation of the duties that are created under the proposed uniform Safe Work Bill.

Footnotes
  1. Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010).
  2. [2010] HCA 1 at [28] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
  3. [2010] HCA 1 at [38] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

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