Until the decision in Kirk v Industrial Court of New South Wales1, employers in NSW had little hope of successfully defending an OHS prosecution. The impact of Kirk has been significant and was demonstrated most recently in the decision Western Freight Management Pty Ltd v Inspector Patton  NSWIRComm 68.
Kirk made it clear that the NSW Industrial Court had ignored the defence set out in NSW OHS laws and systematically misapplied OHS laws for many years. In particular, Kirk held that prosecutors must specify what should have been done or not done by the defendant, so that the defence (that it was not reasonably practicable to undertake those actions or omissions) could be argued before the Court.
The decision in Western Freight confirms that:
- employers who are facing prosecution for a breach of OHS laws can demand that the prosecution set out what it is they should have done (or not done), to comply with the OHS laws
- prosecutors must determine what, if anything, an employer should have done (or not done) in order to comply with the OHS laws – in this regard, prosecutors may need to pay more attention to the opinions of safety experts
- employers should no longer accept that an early guilty plea is their only viable option (as was once the case) in the case of all or most NSW prosecutions.
The Industrial Court’s decision in Western Freight is the latest in a line of cases to consider the level of detail that prosecutors must provide in allegations of OHS offences2.
In short, the case of Western Freight confirms that prosecutors must provide specific examples of the measures an employer or business should have taken to prevent an alleged OHS breach.
The Court said that the prosecutor must give specific examples of measures that a defendant should have taken to prevent an incident so that a defendant is ‘fairly informed of the charge it has to meet’. The appeal Court in Western Freight therefore quashed an earlier conviction against Western Freight and a $200,000 fine awarded against the company in relation to the death of an employee in 2004.3
The employee, a Western Freight truck driver, was crushed by a reversing truck at a depot operated by Star Track Express. Star Track had also been fined $150,000 in 2007 for the incident.
Boland J at first instance found that Western Freight breached its duty under the Occupational Health and Safety Act 2000 (NSW), in failing to ensure a safe system of work in relation to traffic and pedestrian management on the premises. Boland J also found that the defendant company had failed to conduct risk assessments in relation to traffic and pedestrian management at the site.
On appeal, the Industrial Court found that WorkCover’s charges against Western Freight Management did not identify specific measures that Western Freight should have taken to prevent the incident. In fact, at no point during the course of the trial at first instance did WorkCover identify or adequately state the measures that Western Freight should have taken.4 The Court therefore held that there had been ‘a procedural unfairness’.5 The Court declined to order a re-trial of the matter and costs ordered against Western Freight at first instance were also quashed.