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A High Court ruling handed down yesterday in the case Kirk v Industrial Relations Commission of NSW has provided an extra defence that OHS lawyers in NSW and Queensland can use for clients that have been accused of breaching their duty of care in relation to their employees.

“It’s very much a landmark case because it overturns the way the duty of care has been interpreted for quite some time in NSW,” said Norton Rose partner Michael Tooma. Prior to this ruling, the line of authority in NSW had been that the scope of the duty is absolute. The employer’s requirement to ensure the health and safety of employees had been interpreted to mean secure and guarantee the safety of employees. This meant that all the prosecution needed to prove to be successful was that the employee had been exposed to risk.

Tooma said that has always been a point of contention to employers and that this High Court decision overturned that approach. “The High Court in effect has said that the prosecution has to be very specific about what it is that the defendant failed to do to address the risk to health and safety,” Tooma said.

This shifts the focus to a specific act or omission, opens up defence avenues to OHS lawyers.  “It will mean that there will need to be a greater consideration given to the availability of the defences in any given case,” Tooma said. “Initially it will require a reconsideration of the strategies adopted.”

In addition, there will be an adjustment in the number of prosecutions brought and an adjustment in the strategies used to defend cases, Tooma said.

The case arose when the WorkCover Authority took action against Picton farm owner Graeme Kirk in 2001 after his farm manager, Graham Palmer, died. Palmer had driven a four-wheel-drive vehicle down the side of a hill on the property and was killed when the vehicle overturned.

In the ruling, the High Court slammed the WorkCover Authority, calling on it to “finish its sport” with Kirk. “It is absurd to have prosecuted the owner of a farm and its principal on the ground that the principal had failed properly to ensure the health, safety and welfare of his manager, who was a man of optimum skill and experience – skill and experience much greater than his own – and a man whose conduct in driving straight down the side of a hill instead of on a formed and safe road was inexplicably reckless,” the court said.

Learn more about the ramifications of this decision at the OH&S Prosecutions in NSW live online seminar being held on 20 May 2010.

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