In a landmark decision, the High Court has quashed the convictions of farming business Kirk Group Holdings and its director arising out of the death of an employee in 2001. The High Court held that the NSW WorkCover Authority (Authority) treated Mr Kirk and his company 'very unjustly', and that it was time for the Authority 'to finish its sport with Mr Kirk'. The decision will have a significant impact on prosecutions under Occupational Health & Safety (OH&S) legislation Australia-wide. It has also set a precedent for how duties under OH&S legislation will be interpreted.

Mr Kirk and Kirk Group Holdings were charged with the offences under the Occupational Health and Safety Act 1983 (NSW) (Act) after an employee, Mr Graham Palmer, was killed in a vehicle accident on the farm. Mr Palmer was employed to manage the farm on a day-to-day basis, and was found to be 'a man of optimum skill and experience'.

In 2001, Mr Palmer was driving an all-terrain vehicle on a purpose-built road on the property. For reasons which are still unknown and unable to be explained, he left the road and drove down the steep slope. He was killed when the vehicle overturned.

Mr Kirk and Kirk Group Holdings were subsequently charged in the Industrial Relations Commission (now Industrial Relations Court) of NSW (IRC) with failing to ensure the health, safety and welfare of all of its employees and non-employees under the Act. Both defendants pleaded not guilty to the offences but were convicted in 2004.

After unsuccessfully seeking to have the convictions overturned by the Court of Appeal, the defendants sought leave to appeal to the High Court. Ultimately, the High Court decided that the Court of Appeal was wrong not to overturn the convictions.

The High Court criticised the Authority and its conduct. Justice Heydon indicated that the charges should never have been laid, saying it was 'absurd' to have prosecuted Mr Kirk and the company for failing to ensure the health, safety and welfare of their very experienced manager in circumstances where the manager's conduct in driving down the side of a hill 'instead of on a formed and safe road was inexplicably reckless'.

Further, the High Court found that the Authority failed to properly set out the defendants' alleged acts or omissions, making it impossible for the defendants to mount a defence to the charges. The statement of the offence did not specify how the Act had been breached.

The majority judgment held that the IRC was wrong in its view that there is no onus on the prosecution to establish what acts and/or omissions by the employer constituted a failure to ensure its employees' (or other persons') safety. These provisions of the Act, the High Court held, 'were not intended to operate in this way'.

This aspect of the decision can be relied upon with respect to the provision of adequate particulars and will enable defendants to make a more considered decision when determining whether to defend prosecutions.

The decision is likely to encourage employers charged with offences to carefully consider the allegations made against them and whether they can successfully defend those allegations having regard to matters such as training and systems of work which the employer has implemented.