OH&S - some sensibility may be returning!

Nobody else has yet raised it, so I thought I'd mention that there has been a recent case Kirk v WorkCover NSW (and Ors) 2010 which is rather heartening with regards to being an employer/landlord. It only applies specifically to WorkCover in NSW in terms of the specifics, but as it's gone to the High Court, I can't see why the principal embodied won't spread to other jurisdictions. As landlords, it may have relevance to us as "employers" of real estate agents, handymen, etc. (I know we usually don't technically "employ" them, but in an OH&S sense, I believe we are considered to have the obligations of an employer.)

In this case, Kirk owned a farm and employed his friend Palmer (an experienced farmer) to manage the farm for him. Palmer was unfortunately killed in an ATV accident, when it tipped on a slope. Kirk was prosecuted by Workcover NSW under OH&S laws for "failing to take reasonably practicable steps to ensure the health and safety", and initially succeeded in getting a judgement against Kirk and fines of $121K imposed for OH&S breaches.

The evidence that Kirk "failed to take reasonably practicable steps" was the fact that Palmer was killed. There was no burden on Workcover to state precisely what Kirk should or could have done to prevent the ATV accident. The High Court has altered this practise and introduced a "common sense" provision that if an agency is to prosecute somebody for failing to take reasonable steps, then that agency must specify precisely what it is that the person being prosecuted should have done. How can Kirk defend himself if he doesn't know what his negligence was? (The standard now aligns with the common practise in public liability cases, that if you're alleging a breach of duty of care, you have to state exactly the nature of the alleged breach.)

In the particular instance of Kirk, the High Court agreed that there was nothing that Kirk could reasonably have done to prevent his employee from driving the ATV down a dangerous slope (there was a safe alternative road), and therefore his conviction was quashed. Pretty much all previous OH&S convictions in NSW are now potentially open to scrutiny, as it has been common practise in NSW (and probably some other states) for the prosecuting agency not to have to specify what actions could/should have been taken; the fact somebody was injured or killed has been considered sufficient evidence of a breach in NSW, up until now.

The poor bugger, Kirk, spent about $1.5M defending himself against the $121K in fines, though. :( Thanks, Kirk, for paying for a precedent which benefits all of us. I hope some employers association (or several of them) chip in to help cover his legal costs.
 
The poor bugger, Kirk, spent about $1.5M defending himself against the $121K in fines, though. :( Thanks, Kirk, for paying for a precedent which benefits all of us. I hope some employers association (or several of them) chip in to help cover his legal costs.

surely work cover will have to cover his legal expenses....?

someone send this man's address - i want to send this guy a case of grange for standing up to them.
 
surely work cover will have to cover his legal expenses....?

According to Freehills "The High Court also ordered WorkCover NSW to pay Mr Kirk’s legal costs", as per usual.

While this is an important clarification, IME the vast majority of successful prosecutions in this area already required the prosecution to demonstrate what the defendant should have "reasonably" done to prevent the incident. The "reasonable duty of care" provisions in the legislation have always been there - having to demonstrate what the defendant should have done has always been part of that. IMO this was just a lazy prosecution - the fact that the prosecution called the defendant as a prosecution witness only goes to back that up - I mean really, what were they thinking?

So I don't think it really changes that much although no doubt there will be a few more appeals on the basis of the High Court providing a bit more clarity around the interpretation.
 
surely work cover will have to cover his legal expenses....?
According to Freehills "The High Court also ordered WorkCover NSW to pay Mr Kirk’s legal costs", as per usual.
That's interesting... I heard him (Kirk) interviewed on the radio the other day and he was saying that if it had been a unanimous decision, he would have been awarded costs, but because there was one judge dissenting he wasn't sure whether he was going to be reimbursed or not. :confused:
HiEquity said:
While this is an important clarification, IME the vast majority of successful prosecutions in this area already required the prosecution to demonstrate what the defendant should have "reasonably" done to prevent the incident. The "reasonable duty of care" provisions in the legislation have always been there - having to demonstrate what the defendant should have done has always been part of that.
Apparently this has not been the case in NSW up until now, even though it has been the case in most other states. In NSW, my understanding is that prior to Kirk, there was absolutely no need to address the manner in which the employer was negligent, and prosecutions routinely used the very general wording "failure to adequately protect", without specifying what would have constituted adequate protection. I heard one commentator say that this decision potentially invalidated the NSW WorkCover legislation in entirety; whilst this may be melodramatic, there appears to be little doubt that this was a landmark case.
 
Top