High Court turns tables over safety case

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8 February 2010

The investigation and prosecution of occupational health and safety (OHS) breaches has been fundamentally altered after a High Court ruling last week quashed a conviction against a NSW farmer.

In future prosecutors will need to identify exact failings in a company’s OHS programs, citing specific examples, rather than merely accuse a company or individual of failing to ensure the health and safety of their workers.

Overturning a previous conviction by the NSW Industrial Court, the High Court found it was “not enough for the prosecutor to simply prove that there was a risk to the health and safety of employees and others; the prosecutor needed to establish specific acts or omissions that gave rise to that risk”.

The case against farmer Kirk Group Holdings dates back to 2001, when an employee of the company drove a vehicle off-road, crashed and was killed. The Industrial Court and NSW Court of Appeal had previously ruled in WorkCover’s favour.

Blake Dawson Senior Associate Trent Sebbens says while the finding doesn’t lessen the OHS burden on employers, the case may have implications for those states with similar schemes in place.

“For any other state that has legislation similarly drafted and interpreted in a similar way, there may be implications,” he told insuranceNEWS.com.au. “The prosecutor will need to consider more carefully the alleged procedure that was not put in place.”

WorkCover was ordered to pay Kirk’s legal costs.