In a landmark judgment, the High Court of Australia has
overturned a long standing line of authority on the scope of the
duty of care under New South Wales OHS legislation. The case has
brought New South Wales more into line with other Australian
jurisdictions and has paved the way for greater avenues of
defending prosecutions in New South Wales.
Kirk v Industrial Relations Commission of New South Wales;
Kirk Group Holdings Pty Limited V WorkCover Authority of New South
Wales (Inspector Childs) (2010) HCA 1 was an appeal from a
decision of the NSW Court of Appeal dismissing an appeal from the
Full Bench of the New South Wales Industrial Relations Commission
which had upheld the conviction of a farming company and its
managing director in relation to a farm fatality in 2001.
The case related to an accident on Kirk Group's farm near
Picton, New South Wales, where a part time farm manager, who had
been employed by the company to manage the hobby farm, was killed
when his All Terrain Vehicle (ATV) overturned. He
had driven down a steep slope with a load attached to the ATV,
rather than drive along a road purpose built to avoid having to
drive down the slope.
The Company and Mr Kirk were found guilty of breaching their
respective duties under the NSW OHS Act. They were convicted and
fined $110,000 and $11,000 respectively.
In upholding the appeal, the High Court held that a statement of
an offence must identify the act or omission said to constitute a
contravention of the duty. The duty is contravened only where there
has been a failure, on the part of the employer, to take particular
measures to prevent an identifiable risk eventuating. That is the
relevant act or omission which gives rise to the offence. The High
Court held that it is those measures which must be specifically
identified in the charge and it is those measures which the
employer must address themselves in making out their defence of
As no specific act or omission was identified the offending
conduct of the employer was not established but merely general
breaches of the Act.
The High Court was also critical of the decision to call Mr Kirk
as a witness for the prosecution despite the prohibition in the
Evidence Act against defendants in criminal trials being
called as witnesses for the prosecution.
What does this mean?
This judgment represents a significant shift in the approach to
the interpretation of the duty of care and sets out a roadmap of
how prosecutions will need to be brought in future.
Prosecutors need to be very specific as to not only the risk
that the person was exposed to but also as to what the defendant
was reasonably required to do about it. Prosecutors must not simply
rely on what's been called the 'absolute' nature of the
duty. The focus now is not simply on the risk to health and safety
but rather on what it is alleged the defendant was required to do
to address a specific risk.
This opens up greater avenues for defending prosecutions brought
for breaches of the duty of care in NSW.
The decision also serves as a useful reminder in other
jurisdictions of the need for better particulars in criminal
charges so that defendants are on notice of the case they are
Employers will welcome the decision as it represents a
relaxation of the strict interpretation of the safety duty. Over
time, the attention to the specific deficiency on the part of the
employer will increase the transparency of the OHS legal system and
provide greater learning opportunities as cases are brought and
decisions are handed down.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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