Industrial Court of Queensland finds against High Court’s Kirk decision

The Industrial Court of Queensland has found against the principles set down by the High Court in the Kirk decision, on the basis that the relevant legislation in Queensland and New South Wales can not be considered analogous.

In February 2010, the High Court of Australia, in what is considered a landmark judgment, overturned a long-standing line of authority on the scope of the duty of care under the Occupational Health and Safety Act 1983 (NSW) (New South Wales OHS Act).

The case of 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 involved 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 in 2001. The employee had driven down a steep slope with a load attached to the ATV, rather than drive along a road that had been 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 New South Wales OHS Act. They were convicted and fined $110,000 and $11,000 respectively. Both the company and Mr Kirk appealed the decision, which was ultimately dealt with by the High Court.

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 to which the employer must address itself in making out its 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. Accordingly, the charges against the company and Mr Kirk were quashed.

Industrial Court in N K Collins Industries v Twigg

N K Collins Industries Pty Ltd v Peter Vincent Twigg (C/2009/56), decided in the Industrial Court of Queensland on 27 April 2010, is a case concerning a prosecution for breach of section 24 of the Workplace Health and Safety Act 1995 (Qld) (WHS Act).

The complaint alleged that N K Collins Industries Pty Ltd, being a person on whom an obligation is prescribed by s28 (1) of the WHS Act is imposed, did fail to discharge that obligation contrary to s24 of the WHS Act, in that, being a person who conducted a business or undertaking, N K Collins Industries Pty Ltd failed to ensure the workplace health and safety of each of its workers was not affected by the conduct of its said business or undertaking. The charge set out in the complaint contains details concerning the nature of the business or undertaking, the worker exposed to risk to their health and safety, the relevant workplace as well as specifying where the source of the risk came from and the risk itself.

Following the Industrial Magistrate’s finding that the charge had been made out, N K Collins Industries Pty Ltd (the appellant) appealed to the Industrial Court, on the basis of the Kirk decision, on the following grounds:

1. That the complaint failed to disclose the acts or omissions which were alleged to constitute the offence;
2. That insufficient particulars of the acts or omissions alleged to constitute the offence were provided to the appellant.

President Hall referred to the principle that came out of the Kirk decision that to particularise a charge, the particular measures necessary to have been taken must be identified. Additionally, President Hall accepted the appellant’s submission that, in circumstances where a defendant has the evidentiary onus, it is not sufficient for the complainant to simply disclose the “essential legal ingredients” and the factual elements of the case.

In this case, the complaint went further than simply disclosing the “essential legal ingredients” and the factual elements. It also identified the risk and the source of the risk. However, the appellant argued that the complainant should have particularised “the measures not taken” and the appellant’s “act or omission” consistent with Kirk. In dismissing this submission, President Hall stated that a complainant who provides such particulars is not particularising the complainant’s own case, but attempting to particularise the case which a defendant may choose to make. It was found that a complainant should not be at liberty to constrain a defendant’s case in such a way. In noting that the complaint did not specify the acts or omissions by which the appellant breached the WHS Act, President Hall recognised that the WHS Act does not deal with liability on acts or omissions for the relevant circumstance.

President Hall found, however, that the difficulty in applying the principles set down in Kirk lies in asserting that the New South Wales OHS Act and the WHS Act are analogous. Whilst the New South Wales OHS Act imposes an obligation based on practicability and is similar in terms to predecessor OHS legislation in Queensland, the WHS Act imposes an absolute obligation that a defendant may avoid by making out a defence or establishing a discharge of the obligations.

Whilst noting that the Kirk decision in the High Court is not said to be irrelevant, President Hall made it clear that the relevant principles coming out of that case could not be applicable in this circumstance because the legislative regime is fundamentally different.

What does this mean?

The case of N K Collins Industries Pty Ltd v Peter Vincent Twigg is a significant development in the state of Queensland, because it differentiates the relevant legislation in Queensland and New South Wales. In doing so, the applicability of the Kirk principles to complaints issued for breaches of the WHS Act is eradicated in respect of the level of particularisation required in a complaint.

What is yet to be seen is how the Industrial Court of Queensland will apply the Kirk decision to other safety legislation, for example the Electrical Safety Act 2002 (Qld). There is, currently, at least one application before the Court in which this issue is being argued.

* By Aaron Anderson, Partner, Norton Rose