The High Court recently released its decision on “Kirk”. You can read the full transcript and the case lawyers summary by clicking on the links below. Kirk, a Farm Owner, was prosecuted by Workcover under the OHS Act after the death of his Farm Manager (and close friend). Mr Palmer, The Manager was driving a quad bike (ATV) with a load of fencing poles and for some inexplicable reason, left a formed road and traveled down a steep slope. The ATV rolled and he was killed.
“The particulars of the offence were that the Defendant failed to:
- provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle (‘ATV’);
- provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle (‘ATV’);
- to take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health;
- ensure that the Polaris All Terrain Vehicle (‘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 Kirk company’s failures, its employees, in particular Mr Palmer, were “placed at risk of injury” and that Mr Palmer had suffered fatal injuries.
The industrial court found Mr Kirk’s company failed to establish a system to eliminate the possibility of the vehicle overturning when driven off the road despite warning signs being displayed on its racks.
Mr Kirk was convicted and fined by the industrial court under NSW laws which require defendants to prove their innocence rather than prosecutors having to prove they are guilty!
The High Court found that there was nothing further or practical that Kirk could have done to prevent the death of his friend and that Mr Palmer’s experience far outweighed that of Kirk and that the NSW Industrial Court exceeded its power by finding him guilty. The Industrial Court failed to specify how the systems were deficient and were unable to define what the defendant could have or should have done to eliminate or control the risk.
The decision is surely going to make it easier in the future for an employer with good safety systems to defend or mitigate any prosecutions for an alleged breach of State Safety Legislation and expedite the implementation of National Safety Legislation. I wonder how many companies with similar convictions may now consider appealing?
According to Lawyers Herbert Geer:
The High Court decision in the matter of Kirk V Industrial Relations Commission of NSW & WorkCover NSW [2010] HCA 1 (3 February 2010) (“Kirk”) has forever changed the way in which OH&S prosecutions in NSW are instituted, heard and determined.
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High Court's decision on Kirk. http://www.safetyrisk.com.au/2010/07/12/high-courts-decision-on-kirk/
New blog post: High Court's decision on Kirk. http://www.safetyrisk.com.au/2010/07/12/high-courts-decision-on-kirk/