Workplace Safety: The impact of the High Court decision in Kirk

28 April 2010

Workplace Safety: The impact of the High Court decision in Kirk

Australian OH&S laws impose an onerous duty on all businesses to ensure safety at their workplaces and, until recently, there has been historically little success in defending prosecutions initiated by OH&S Regulators. However, in February 2010, the long awaited and highly publicised decision of Kirk v WorkCover NSW (and Ors) [2010] HCA 1 (Kirk Decision) was handed down by the High Court which goes some way to help employers in complying with their duties and defending a prosecution if one is commenced against them.

Although the Kirk Decision did not change the onus on employers in NSW and Queensland to establish a defence to any prosecution, they are now assisted when conducting a defence by the clear authority in the Kirk Decision that a prosecution is not valid if the prosecutor does not clearly identify the steps that an employer should have taken to comply with their OH&S obligations.

The facts

Mr Kirk was the director of Kirk Group Holdings Pty Ltd (Kirk Group), which owned a farm near Picton, NSW. Mr Kirk took no active part in running the farm and left the day-to-day operation of the farm to Mr Graham Palmer, an experienced manager. In March 2001, Mr Palmer was driving alone on an all-terrain vehicle on the farm when, for reasons unknown, he diverted from the road down a steep slope. The vehicle overturned and Mr Palmer was killed.

WorkCover commenced an investigation and subsequently prosecuted Mr Kirk and Kirk Group under the Occupational Health and Safety Act 1983 (NSW) (1983 Act), being the predecessor of the current Occupational Health and Safety Act 2000 (NSW) (Act). The Kirk Group was prosecuted on the basis that it had failed to take reasonably practicable steps to ensure the health and safety of Mr Palmer, in particular, a lack of training and supervision. Mr Kirk was charged on the basis that, as a director of the Kirk Group, he was deemed to have committed the same offence as the company.

The prosecution

The prosecution in respect of Mr Palmer’s death was brought under sections 15 of the 1983 Act (now section 8(1) of the Act) which requires that employers must “ensure the health, safety and welfare at work of all the employer’s employees”. A similar charge was also brought under section 16 of the 1983 Act (now section 8(2) of the Act) in respect of other workers at the farm, who were not employees, but who were also exposed to risk of injury as a result of Mr Palmer’s conduct in driving down the steep slope.

The specific charges brought against the Kirk Group and Mr Kirk failed to identify the specific acts or omissions that were said to constitute the offence. The charges were limited to restating the examples of what may amount to a contravention as set out in section 15 of the 1983 Act. Amongst other matters, Mr Kirk and the Kirk Group objected to the manner in which the prosecution was conducted in that WorkCover failed to particularise what further steps Mr Kirk or the Kirk Group could have done in order to comply with their occupational health and safety obligations, including the training and supervision it was alleged had been deficient.

At first instance, the NSW Industrial Relations Commission (IRC) found that both the Kirk Group and Mr Kirk had breached their obligations under the 1983 Act and had not established a defence. The Court imposed fines totalling $121,000 and ordered that Kirk Group pay WorkCover’s legal costs of the proceedings.

Mr Kirk and the Kirk Group unsuccessfully challenged this decision both in the Full Bench of the IRC and also in the NSW Court of Appeal. Ultimately, Mr Kirk was granted special leave to appeal the decision of the Court of Appeal to the High Court. The appeal sought to quash the convictions of the IRC on a number of bases, including that the charge failed to disclose the particular act, matter or thing alleged to constitute the foundation of the charge.

High Court decision

In a unanimous decision, the High Court upheld the appeal of Mr Kirk. The High Court was particularly critical of WorkCover’s approach and in particular the failure by the prosecutor to adequately identify the failures of the Kirk Group. In the Court’s view, this approach rendered the operation of the defence almost meaningless because the Kirk Group could not know what measures it needed to prove were not “reasonably practicable”. This effectively denied the Kirk Group or Mr Kirk an opportunity to properly raise a defence. In those circumstances, the High Court considered that the IRC based its judgment on a misconceived construction of the 1983 Act which did not require the prosecutor to take these steps.

As a result, the High Court quashed the convictions on the basis that the IRC had acted outside its jurisdiction in convicting the Kirk Group and Mr Kirk on an incorrect view of the 1983 Act.

Implications for employers

Change of approach to prosecutions
The Kirk Decision has been welcomed by employers, particularly in NSW and Queensland, as a ruling which will greatly assist them in responding to and defending any prosecutions. This is because the Kirk Decision makes clear that an OH&S Regulator is not permitted to initiate or conduct a prosecution if it fails to first establish how an employer has failed to comply with its obligations. The OH&S Regulator must first evidence the particular steps that it alleges could have been taken at the time to prevent the breach. In NSW and Queensland, the onus then shifts to the employer to establish a defence.
Change of approach to investigations
Another outcome of the Kirk Decision will be the importance placed by OH&S Regulators on Codes of Practice, Australian Standards and other industry standards. In particular, during any investigation into a safety breach OH&S Regulators are more likely to require employers to provide evidence of their compliance with applicable Codes and Standards. This approach may be taken in order to establish whether there were “reasonably practicable” steps that could have been adopted at the time. Employers will need to consider carefully how they respond to this avenue of investigation and their ability to demonstrate that they took all reasonable steps.
Kirk Decision related litigation
Another immediate implication of the Kirk Decision is that a number of employers are reviewing the validity of previous convictions as well as the conduct of any current investigations or prosecutions initiated by OH&S Regulators. The purpose of these reviews is to consider whether the withdrawal of current or pending prosecutions should be pursued and whether existing convictions should be quashed.

If you consider that your business may be affected by the Kirk Decision or you have any other OH&S inquiries, then please contact our office to discuss the matter further.