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					                         WORKCOVER PUT TO PROOF

The High Court decision of Kirk v Industrial   Instead of proceeding along the road, Mr
Relations Commission; Kirk Group               Palmer steered the ATV down the side of a
Holdings Pty Limited v WorkCover               hill. There was no formed track on the slope
Authority of New South Wales (Inspector        and it was steep. It was unnecessary for Mr
Childs) [2010] HCA 1 (3 February 2010)         Palmer to proceed down the hill, given the
has sent shockwaves through the OH&S           existence of the road. Tragically the ATV
landscape of NSW ridiculing decades of         turned over and Mr Palmer was killed.
WorkCover NSW prosecution practices.
                                               The Decision
The Facts
                                               The offence in question involved a breach of
The decision concerned a WorkCover             the duties imposed on employers under ss 15
prosecution of a NSW farmer for a breach of    and 16 of the Occupational Health and
the predecessor to ss 8(1) and (2) of the      Safety Act 1983 (NSW) (the predecessor to
Occupational Health & Safety Act, 2000         ss 8(1) and (2) of the 2000 Act). Section 15
(NSW) (‘2000 Act’).                            provided that an employer had a duty to
                                               “ensure the health, safety and welfare at
Kirk Group Holdings Pty Limited (‘the Kirk     work of all the employer’s employees”.
company’) was the owner of a farm near         Section 16 provided that employers have a
Picton, New South Wales. Mr Kirk was a         duty to ensure that “persons not in the
director of the Kirk company, however he       employer’s employment are not exposed to
took no part in the active running of the      risks to their health or safety arising from
company, having no experience in farming       the employer’s undertaking”. Mr Kirk was
and being in poor health. The day to day       charged as a director of the Kirk company
operation of the farm was the responsibility   and therefore deemed to have committed the
of Mr Graham Palmer, who was employed          same offences as the Kirk company.
as the farm manager due to his extensive
experience in farming.                         WorkCover drafted the charges consistent
                                               with its policy and adopted in thousands of
On 28 March 2001, Mr Palmer was using an       prosecutions in NSW. That is, WorkCover
All Terrain Vehicle (‘ATV’) to deliver         alleged that there had been a failure to
lengths of fencing steel to fencing            ensure health and safety particularly a
contractors who were working in the far        failure to provide a safe system of work,
back paddock of the property. After securing   sufficient information, instruction and
the lengths of steel to the back of the ATV,   training etc. However, WorkCover did not
Mr Palmer began his journey down a formed      spell out how the defendants had failed to
road which led to the contractors.             provide a safe system of work or failed to
provide sufficient information, instruction      Consideration was also given to section
and training.                                    179(1) of the Industrial Relations Act 1996
                                                 (NSW) (the privative clause), which provides
Both the Kirk company and Mr Kirk were           that a decision of the Industrial Court is final
convicted by Justice Walton. The Full            and may not be appealed against, reviewed,
Bench dismissed the appeal as did the Court      quashed or called into question by any Court
of Appeal.                                       or tribunal. The High Court rejected any
                                                 suggestion the privative clause in the IR Act
The High Court upheld the appeal and             prevented the Supreme Court from
dismissed the charges on the grounds that        reviewing the decision.
WorkCover had failed to particularise the
charge. The judges confirmed it was a            Practical Effect
principle of the common law that the
Defendant is entitled to be told not only of     The High Court has certainly turned on its
the legal nature of the offence with which he    head decades of common practice in the
or she is charged, but also of the particular    OH&S jurisdiction. The decision has huge
act, matter or thing alleged as the foundation   ramifications for all prosecutions currently
of the charge.                                   before the Industrial Court and those due to
                                                 be commenced. WorkCover’s practice of
The High Court further held that the charges     simply pleading a failure to provide, for
in question had to be identified if Mr Kirk      example, a safe system of work without
and the Kirk company were to be placed in a      explaining what measures should have been
position to rely on a defence under section      undertaken has been rejected by the High
53 (the predecessor to s 26 of the 2000 Act).    Court. The decision has essentially reversed
                                                 the current onus of proof (bringing it closer
The High Court held that the statements of       to general criminal law principles). It also
the offences particularised did not identify     finally provides Defendants with a chance to
what measures the Kirk company could have        successfully argue a defence under s 26 of
taken but did not take. Therefore, Mr Kirk       the 2000 Act.
and the Kirk Company could not have
known what measures they were required to        On one view most current prosecutions will
take in order to be considered ‘reasonably       have to be either withdrawn or re-
practicable’ for the purposes of the defence.    particularised. This raises the next issue for
The Court held that if a risk was or is          the Industrial Court to consider - will it
present, the question is – what action on the    permit WorkCover to amend the particulars?
part of the employer was or is required to
address it?                                      As the judgment is applied in the coming
                                                 months, it will be interesting to see how the
Additionally, the High Court questioned          Industrial Court deals with the shifting
whether the Industrial Court had the power       fundamentals of OH&S law in NSW.
to require a person to appear before it where
there was such a failure to properly
particularise. Unfortunately, this was not       4 February 2010
explored further by the Judges.

                                                 Andrea Willits            Simon Berry
                                                 Solicitor                 Partner

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