Member Article

Facts

The NSW WorkCover Authority (WorkCover) prosecuted Kirk Group Holdings (the Company), the owner of the farm, and one of its directors, Graeme Kirk, over the death of the farm's manager. The manager was fatally injured when he drove off a formed road and rolled an all-terrain vehicle while travelling down the side of a steep hill.

The company and Mr Kirk defended the prosecution, alleging that it was not foreseeable that a qualified and competent employee would disregard warnings and needlessly drive down a slope. The NSW Industrial Relations Commission (NSW IRC) found the Company and Mr Kirk guilty of breaching their obligations under the Occupational Health and Safety Act 1983 (NSW) (OH&S Act) and ordered them to pay a fine of $121,000 for failing to ensure the safety of employees.

Mr Kirk unsuccessfully challenged the decision at appellate level in NSW before obtaining special leave to appeal to the High Court.

Decision

The Full Court of the High Court unanimously quashed the NSW IRC's decision.

In a joint decision, the court held that WorkCover failed to identify what Mr Kirk and his Company could have done to prevent the incident, denying them the opportunity to properly put a defence. Instead, they were required to show why it was not reasonably practicable to eliminate all possible risks associated with the use of the vehicle – making it practically impossible for Mr Kirk or his Company to formulate a defence to the charge.

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

Interpretation of the 'absolute' obligation under safety legislation

Occupational health and safety legislation in some states in Australia (for example New South Wales and Queensland) imposes an absolute obligation on employers to 'ensure' the safety of employees. Employers must then be able to establish a defence to avoid liability. In New South Wales, it is a defence to demonstrate that it was not reasonably practicable for a person to comply with the obligation.

The 'absolute' obligation is differently formulated to the obligation in other jurisdictions where the primary obligation is limited by the concept of 'reasonably practicable'.

In reaching its decision, the court considered the nature of the 'absolute' obligation under the OH&S Act and acknowledged that this obligation is a higher standard than that recognised by the common law, to take reasonable care. It also recognised that in order to establish a defence under the legislation, the onus is on the employer to establish on the balance of probabilities that it was not reasonably practicable to comply with the obligation.

However, the High Court rejected the previously long accepted principle that the absolute nature of the obligation meant that the prosecution must only prove that a risk existed and that it was not eliminated by the employer. The court said that the provisions relating to offences and defences in the legislation were not intended to operate in this way. The majority held:

'Of course, it is necessary for an employer to identify the risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is – what action on the part of the employer was or is required to address it?'

The court rejected that the obligation should be interpreted with the benefit of hindsight. It held that the provisions of the OH&S Act were not intended to operate in a way requiring an employer to establish that there was no reasonably practicable measures, of any kind, which could have addressed the risk in order to defend a prosecution. The court commented that when considered in that manner, it was always possible to think of something further that could have been done.

The court found that the prosecution failed to give proper particulars of the alleged offence committed by Mr Kirk and his Company, instead charging Mr Kirk with the offence by restating the general wording of the OH&S Act. This prevented Mr Kirk and Kirk Holdings from properly understanding the case against them and effectively requiring the court to judge the reasonableness of any precautions taken by Mr Kirk and his company with the benefit of hindsight.

In doing so, the court overturned a long line of case law (notably in Queensland and New South Wales) which held that, where the onus of proof to establish a defence is on the employer, the regulator is not required to particularise what it alleges the defendant should have done to prevent the breach.

Interestingly, the High Court decision follows an extensive debate on the harmonisation of OHS laws and the desirability of an 'absolute' obligation on employers. The resulting 'model laws' which all states and territories will adopt by 2011 rejected the concept of an absolute liability instead opting for an obligation moderated by the concept of what is 'reasonably practicable'.

Appeal Rights

In reaching its findings the High Court also considered the validity of statutory provisions limiting appeal rights from a decision of the NSW IRC. The Act establishing the NSW IRC purports to limit appeals or other challenges to decisions of the NSW IRC.

The High Court held that a provision in the legislation declaring a decision of the NSW IRC to be final and unable to be appealed was subject to constitutional limitations and as such, only decisions which were made within the limits of the powers given to the NSW IRC were unchallengeable. It held that a decision where a jurisdictional error has been made is appealable.

Justice Heydon's judgment

While agreeing with the majority decision, Justice Heydon went further than the majority in his criticism of the prosecution – saying it was time for it to 'finish its sport with Mr Kirk'. His Honour's judgment also supported a narrower approach to the obligation of an employer with an experienced employee who had been reckless.

'It is absurd to have prosecuted the owner of a farm and its principal on the ground that the principal had failed properly to ensure the health, safety and welfare of his manager, who was a man of optimum skill and experience – skill and experience much greater than his own – and a man whose conduct in driving straight down the side of a hill instead of on a formed and safe road was inexplicably reckless. '