Life after Kirk: what is the real impact of the high court decision?

Has the landmark High Court decision in Kirk v WorkCover NSW & Ors (Kirk), delivered in February 2010, had the dramatic impact on occupational health and safety that was anticipated at the time?

The Kirk judgment

In Kirk, the High Court considered the duty of employers to ensure safety under the former NSW Occupational Health and Safety Act 1983 (1983 Act). In particular, the Court examined the extent to which prosecutors must identify the act or omission said to constitute a contravention of sections 15 and 16 of the 1983 Act – the primary provisions that required employers to ensure the health, safety and welfare of people at work. These are now replicated in sections 8(1) and 8(2) of the Occupational Health and Safety Act 2000 (2000 Act).

The facts involved a fatal accident where an experienced farm manager was killed after the ATV he was driving tipped over. He had, without apparent cause, driven off a road to take a short cut across the farm. The Court, in quashing the convictions against the farm owner (Kirk Holdings Pty Ltd) and its director (Mr Kirk), found that the Industrial Court had acted outside its jurisdiction in part by entering convictions when the charges failed to disclose the essential factual elements of the offence. It was incumbent on the prosecutor to specify the particular safety measures that it alleged should have been taken by Kirk Holdings in order for Kirk Holdings to be able to properly raise any available defence.

Post Kirk prosecutions

Many saw potential in the Kirk judgment to defeat or derail a host of prosecutions in the offing at the time of the decision. But a series of decisions since February show that the impact of Kirk on existing prosecutions has been relatively limited. Aside from a handful of cases, attempts to use Kirk to reduce or dismiss charges have largely failed. In one case, the NSW Industrial Court reduced the fine awarded against a mine operation over the death of a worker after charges against it were modified in light of Kirk (Morrison v Perilya Broken Hill Ltd [2010] NSWIRComm 66).

But the majority of decisions since Kirk have adopted a restrictive view of its application. Examples include:

• The Full Bench of the NSW Industrial Court rejected an application by John Holland Pty Ltd to have charges against it dismissed. It held that the High Court in Kirk had not intended that a “Statement of Offence” was constituted solely by a statement of the essential legal elements which John Holland alleged had not been included in the charge against them. The Court held that there was no “imaginary” line in a court document where the “Statement of Offence” had to be contained. The “Statement of Offence” comprised a combination of:
• the description of the legal nature of the offence;
• the essential factual ingredients; and
• any other particulars to better inform the defendant of the charge it has to meet.

These had to be provided to the defendant but the manner in which they were provided did not impact on the validity of the charge (Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72).

• The NSW Industrial Court also rejected an attempt by two company directors to have charges against them dismissed on the basis of the Kirk decision. The directors argued that the charges failed to sufficiently particularise the measures they personally could have taken to prevent the workplace accident.

The Full Bench found that sufficient particulars of the alleged offences were contained in a “statement of offence” filed together with the charges. Further it was only necessary to particularise the remedial measures the company could have taken and not the directors. This was because the offence was by the company and the directors were deemed to have committed the same offence.

In the Court’s view, the decision in Kirk did not require that the necessary elements of each offence had to be found in the charge itself. It was acceptable for sufficient particulars to be set out in the statement of offence which included a supporting Affidavit and particulars in the Application for Order. (Morrison v Chevalley [2010] NSWIRComm 116)

• The Queensland Industrial Court (QIC) rejected an employer’s Kirk-based defence when it ruled that the Workplace Health and Safety Act 1995 (Qld) was not analogous with the 1983 Act. The Queensland Act, it was held, does not require a prosecutor to particularise measures not taken, nor to particularise the act or omission alleged to have been committed. The QIC stated that a prosecutor who gave such details was not particularising its own case but was effectively prescribing a case that the defendant may choose to take. It ruled that a prosecutor should not be required, or even permitted, to constrain a defendant’s case in that manner. (NK Collins Industries Pty Ltd and Peter Vincent Twigg [2010] ICQ C/2009/56).
• The QIC judgment was appealed to the Supreme Court. Judgment was delivered on 14 October 2010 and found that:

There was no obligation on the prosecutor to particularise anything further to found a valid complaint. However, that does not mean that a prosecutor cannot be required, in an appropriate case, to particularise the applicable code of practice or other measures it asserts ought to have been taken by an employer if such particulars are necessary to apprise a defendant of the case it has to answer.

For example, where there are conflicting codes of practice that may be applicable to the factual circumstance. The provision of such particulars in that event would be on the grounds of procedural fairness, not because they were necessary matters for the prosecutor to aver to found a valid complaint.

The Supreme Court remitted the matter back to the QIC for further consideration. The outcome of that matter is still to be determined.

Impact of Kirk

Courts have to date appeared reluctant to apply Kirk in a manner that would defeat extant safety prosecutions. Also of significance is the uncertainty in Queensland as to the impact of Kirk in Queensland OHS prosecutions.

It is likely that the major impact Kirk will have is on the approach taken by the safety regulators in investigating and prosecuting matters. In short, the guidance provided by the High Court on the proper approach to be taken by the safety regulators is likely to result in the greater exercise of discretion as to which matters will be prosecuted and a more focused approach to investigations in complex safety incidents, so as to clearly establish what remedial steps an employer should have taken.