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 reasonable practicability.

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 facing.

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.