farm. Mr Palmer left the formed road and drove down the side of a hill, for reasons unknown, even though there was nothing preventing him from using the road. The ATV overturned when Mr Palmer drove down the hill and he was subsequently killed.
 
WorkCover pursued a prosecution against Mr Kirk and the Kirk Company for alleged breaches of sections 15 and 16 of the Occupational Health and Safety Act 1983 (NSW) for failing to ensure the health, safety and welfare at work of its employees and failing to ensure that non-employees (i.e. 4 contractors engaged by the Kirk Company) were not exposed to risks to their health or safety arising from the conduct of its undertaking.

Decision

The High Court determined that whilst there is a duty on an employer to ensure the safety of employees and other persons at work, it is the measures particularised in the charge going to what the employer should have done that gives rise to a successful prosecution of a breach of the OHS Act, not simply an assertion that there has been a breach of the duty.

The High Court found that the WorkCover prosecution against Mr Kirk and the Kirk company failed to particularise the act or omission which led to the breach of the duty, ie. the measures that could have been taken to prevent Mr Palmer's death. Furthermore, given that the charges failed to identify those measures, the defendants were denied the opportunity to properly put on a defence as they did not know what measures were required and whether it was reasonably practicable to implement them.

Accordingly, the approach taken by the Industrial Court in determining liability under the OHS Act was flawed.

In addition, the High Court criticised the Industrial Court for permitting the prosecution to call Mr Kirk to give evidence on behalf of the prosecution when he was himself a person accused of a criminal offence as part of the same proceedings.

Implications

The significance of this decision cannot be underestimated as it will affect the way current and further WorkCover safety investigations and prosecutions are conducted (including under the impending federal harmonised safety laws). Defences (which have rarely been successful) to prosecutions which have not adequately specified the measures required by the employer to avert the risk will now have good prospects of success.

We strongly recommend employers who have OHS prosecutions on foot, or are in the process of a WorkCover investigation, to contact us for advice.

For more information please contact Alistair Salmon, Partner at FCB on (02) 9922 5188 or at ams@fishcart.com