Following the Kirk decision handed down in early
February1, the Industrial Court has witnessed hearings
in another case seeking to alter the accepted principles of
Occupational Health and Safety prosecutions in NSW.
On Thursday 8 April 2010, the full bench was summoned to hear
Morrison v Graham Anthony Chevalley; Morrison v Hilton Ross
Grugeon. In this case, which looks at the liability of
directors in Occupational Health and Safety matters, the court lays
out a number of applicable principles in light of the Kirk
In August, the court decided that Hunter Quarries director and
chairman, Hilton Grugeon, and managing director, Grahame Chevalley,
had failed in their attempt to have their charges over the death of
truck driver Darren Smith quashed by the court.
Smith, a father of two, was killed when his truck drove over an
embankment and rolled over at a Karuah quarry in June 2005.
The prosecution alleged that Hunter Quarries had failed to
ensure the road and truck were safe, and had also failed to provide
proper training, supervision and a safe system of work for its
In Kirk the High Court found that prosecutors had to
specify exactly what measures an employer should have taken to
avoid the risk of an accident.
Despite the prosecution's failure to provide measures by
which the directors could have avoided the risk of an accident, the
Industrial Court ruled that once Hunter Quarries had pleaded
guilty, Mr Grugeon and Mr Chevalley, as directors, could be taken
to have breached the law.
They laid out a number of principles relevant to the application
of the law in matters such as these:
Provision 26 reverses the onus of proof, which would otherwise
rest on the prosecution of proving that a defendant who is a
director of the corporation did not use all due diligence to
prevent the contravention by the corporation
There is no basis upon which to draw a distinction between the
offences committed by the director or person concerned in the
management of the corporation and the offences committed by the
The director must be deemed to be a party because of his or her
complicity in the offence. It cannot impose liability for an
offence which was really committed by the corporation and is only
'taken' to have been committed by the director.
The court also rejected the argument that the reversal of the
onus of proof offended the judicial process by presuming a person
guilty before proven as such.
While the case of Kirk was a strong win for directors,
the decision of Morrison v Graham Anthony Chevalley; Morrison v
Hilton Ross Grugeon clearly recognises the current requirement
of New South Wales Occupational Health and Safety legislation
– Directors of companies must be vigilant about safe work
1 Kirk v Industrial Relations Commission; Kirk Group
Holdings Pty Limited v WorkCover Authority of New South Wales
(Inspector Childs) 
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