Australia: OHS Prosecutions – An Allegation of Failure to Ensure Safety is Not Enough (Kirk v IRC)

Last Updated: 12 April 2010
Article by Emma Reilly

The appellant in Kirk v Industrial Relations Commission; WorkCover NSW was convicted in the Industrial Court of New South Wales for offences against the Occupational Health and Safety Act 1983 (NSW) ("the OHS Act") relating to the death of a farmer at work, and fined $121,000. The NSW Court of Appeal refused to quash the convictions, however, the High Court overturned this decision, on the basis of the absence of an allegation as to a direct breach of the employer's duty under the OHS Act in the circumstances of the death.


The appellant was the owner of a farm near Picton, NSW. Mr Kirk was a director of that company, but did not take an active part in the running of the farm. He had no farming experience and was not in good health. He left the day to day operation of the farm to an employee, Mr Graham Palmer, who was an experienced farm manager.

In June 1998, Mr Palmer recommended the purchase of an All Terrain Vehicle ("ATV"). On 28 March 2001, Mr Palmer was using the ATV to deliver three lengths of steel to fencing contractors who were working in the far back paddock of the farm. He secured the steel to the rear of the ATV on racks. Mr Palmer elected to proceed off-road and down the side of a steep hill. This was unnecessary as a road led to the site of the delivery. The ATV overturned and Mr Palmer was killed.

The OHS Act contained provisions relating to the health, safety and welfare of employees and other persons at a workplace. The employer was accused of a contravention of the duty imposed upon an employer by section 15, that every employer shall ensure the health, safety and welfare at work of all employees.

The precise particulars of the offence in question were that the appellant failed to:

  • Provide or maintain systems of work that were safe and without risks to health in relation to the operation of the ATV
  • Provide such information, instruction, training and supervision as might be necessary to ensure the health and safety at work of its employees in relation to the operation of the ATV
  • Take such steps as were necessary to make information available at the place of work in connection with the use of the ATV, including adequate information about the use for which the plant was designed and about any conditions necessary to ensure that, when put to use, the plant was safe and without risks to health
  • Ensure that the ATV was only operated by persons with appropriate training
  • Adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.

The statement of the offences concluded with the allegation that, as a result of the failures, the appellant's employees, in particular Mr Palmer, were placed at risk of injury, and that Mr Palmer had suffered fatal injuries as a result.

There was also a similar offence framed under section 16 of the OHS Act in relation to the safety of persons not in the employ of the appellant, namely four contractors engaged by the company.


The High Court made observations in the decision about the scope of the obligation upon an employer, which was stated to be a personal obligation to ensure the health, safety and welfare of employees at work. The obligation was said to be the kind of non-delegable duty spoken of in Kondis v State Transport Authority, which was higher than the obligation to take reasonable care recognised by the common law.

It was noted that the NSW legislation differed to legislation in other states. In other states, the employer's obligation was limited to the taking of such measures as were practicable, with the onus on the prosecution to show that the means that should have been employed to remove or mitigate a risk were practicable. However, to avoid conviction in NSW, an employer must prove that it was not reasonably practicable to take the measures put in question by the prosecution.

The appeal in this matter was upheld on the basis that the prosecutor failed to satisfy the first step of identifying the measures which should have been taken by the appellant to protect the health and safety of the employees and contractors. The offence was held to have been framed in terms of the content of the general duty on behalf of the employer, rather than the precise breach of that duty in the circumstances at hand. The High Court stated that 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 answer to that question is the matter properly the subject of the charge. It was insufficient for the prosecution to allege that, as a consequence of a series of unspecified failures on the part of the employer, there remained present general risks to the health and safety of employees and others.

It was noted that this had also been the approach taken by the Industrial Court in a series of previous cases, which were followed in the matter at hand. In essence the High Court held that because the prosecution did not describe the measures that they alleged should have been taken by the appellant to ensure health and safety, the appellant was denied the opportunity of mounting a defence based upon whether those measures were practicable.

After deciding the case on that basis, it was not necessary for the High Court to decide whether or not the appellant should have taken different measures to prevent Mr Palmer's death.

Of interest, in finding for the appellant, it was also noted that there was a departure from the rules of evidence at first instance in the Industrial Court. Mr Kirk was called to give evidence against himself and his company. The Evidence Act provides that a defendant is not competent to give evidence as a witness for the prosecution, and the High Court stated that the parties were not able to overcome this by way of agreement.


The High Court took the opportunity to comment on the operation of specialist courts. It was stated in the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ that: "a major difficulty in setting up a particular court, like the Industrial Court, to deal with specific categories of work, one of which is a criminal jurisdiction in relation to a very important matter like industrial safety, is that the separate court tends to lose touch with the traditions, standards and mores of the wider profession and judiciary. It thus forgets fundamental matters like the incapacity of the prosecution to call the accused as a witness even if the accused consents. Another difficulty in setting up specialist courts is that they tend to become over-enthusiastic about vindicating the purposes for which they were set up".

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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