Kirk Group Holdings Pty Ltd and another v WorkCover Authority of New South Wales

Industrial Relations Commission (NSW)|2007-07-01|Before: Wright J, Boland J, Backman J, Mr J, Mr P

Introduction 1 The background to this matter is conveniently summarised in Group Holdings Pty Ltd v WorkCover Authority (NSW) (Inspector Childs) (2006) 158 IR 284. In that decision the Full Bench granted an extension of time to Kirk Group Holdings Pty Ltd and Graeme Joseph Kirk, to appeal, on specific grounds, decisions and orders of Walton J, Vice President given on 9 August 2004 and 24 January 2005 in Matter Nos IRC 1730, 1731, 1732 and 1733 of 2003: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166; WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2005) 137 IR 462. 2 In the first of those judgments Walton J found proven charges that had been laid by Inspector Barry Childs of the WorkCover Authority of New South Wales against the corporate defendant under s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983. Mr Kirk was also prosecuted under s 50(1) of that Act for deemed contraventions of s 15(1) and s 16(1) of the Act and, again, his Honour found the offences proven. The prosecutions arose out of an incident on 28 March 2001 when Graeme Palmer, who was the manager of a farm owned by the corporate defendant at Razorback Mountain near Picton, was killed when a vehicle, known as a Polaris All Terrain Vehicle ("ATV"), overturned whilst Mr Palmer was navigating a steep slope with a load of steel pipes intended for fencing work. In the second judgment Walton J imposed monetary penalties on both defendants. 3 On 14 February 2005, the appellants sought to institute appeals against conviction and sentence in the Court of Criminal Appeal, pursuant to s 5(1) of the Criminal Appeal Act 1912. Additionally, on 22 February 2005, the applicants commenced proceedings in the Court of Appeal (as claimants) seeking orders in the nature of certiorari and prohibition, the primary purpose being to set aside the judgments of Walton J. However, in their written submissions in the Court of Appeal, the applicants also sought to have the Court order an inquiry into their convictions, pursuant to s 474D (in Part 13A) of the Crimes Act 1900. 4 The appellants were unsuccessful in their applications to the Court of Appeal and Court of Criminal Appeal: Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (2006) 154 IR 310 ("Kirk (CA)"), a judgment given on 30 June 2006. On 10 July 2006, the appellants moved the Full Bench of the Industrial Court for orders pursuant to r 42(1) of the Industrial Relations Commission Rules 1996 to extend time to appeal the decisions and orders of Walton J referred to above.

5 In its decision and orders on the appellants' motion, given on 15 November 2006, the Full Bench granted the extension but directed that the grounds of appeal in an amended notice of appeal were to be limited to the alleged error identified by Spigelman CJ at [22] (and numbered (iii)) and at [24] of Kirk (CA). The alleged error at 22 was expressed as follows: 22 In order to apply Div 3 of Pt 13A, it is essential to consider the particular allegations of error in the specific case. The Appellant has identified four errors which can be described in the following terms: ...

(iii) The Court dealt inappropriately with issues of corporate responsibility by failing to determine that the company had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the company to fulfil the duty. ...

6 Paragraph [24] of the judgment of the Court of Appeal (per Spigelman CJ) was in the following terms: 24 The proposition identified in (iii) and, insofar as it is linked to that paragraph, also the proposition identified in (iv), is particular to the circumstances of this case. This submission raises a specific finding of fact as to who constituted the corporate mind of the company at the relevant time. The Appellant does not challenge the jurisprudence in the Industrial Court concerning the non-delegable nature of the duty imposed on the company. Nevertheless, it submits that a company can only act through human agency and the relevant human agency in this case was Mr Palmer not, as his Honour found, Mr Kirk. 7 Subsequently, an appeal was brought pursuant to s 5AA of the Criminal Appeal Act 1912 as applied by s 196 of the Industrial Relations Act 1996. The grounds of appeal as filed were as follows: That his Honour erred in proceeding to record a conviction and sentence in respect of each Appellant in circumstances in which: (i) his Honour dealt inappropriately with issues of corporate responsibility by failing to determine that the company had in fact fulfilled its duty through Mr Palmer who, rather then [sic] Mr Kirk, had been chosen by the company to fulfil the duty; and/or (ii) his Honour erred in finding that the company relevantly acted to fulfil its duties through the agency of Mr Kirk rather than Mr Palmer. 8 Whilst it may not be immediately evident from the appeal grounds, the essence of what is contended on appeal is that a corporation may not act other than by human agency; that it was not Mr Kirk who was the controlling mind (or ego or alter ego) of the corporate defendant in so far as the management of the farm was concerned, including the responsibility for occupational health and safety, but rather it was Mr Palmer in respect of whom no finding was made of any failure to ensure safety. That being the case, it was submitted, Walton J erred in finding that the corporate defendant contravened the provisions of the Act because of acts or omissions on the part of the human agency, namely Mr Kirk and, ipso facto, Mr Kirk was not criminally liable, it not having been alleged he independently contravened the Act. The charges 9 The corporate appellant was prosecuted for alleged breaches of s 15(1) and s 16(1) of the Act, being Matter Nos. IRC 1730 and 1732 of 2003 respectively. The charge in Matter No. IRC 1730 of 2003 was as follows: The alleged offence is that [the Company], on 28 March 2001, at "Mount Hercules Farm", 340 Mount Hercules Road, Razorback in the State of New South Wales, a work place operated by [the Company] failed to ensure the health, safety and welfare at work of its employees, in particular Graham George Palmer, contrary to s 15(1) of the Occupational Health and Safety Act 1983. 10 The particulars of the charge were that the corporate appellant failed to: (a) provide or maintain systems of work that were safe and without risks to health in relation to the operation of the [ATV]; (b) provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the [ATV]; (c) to take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health; (d) ensure that the [ATV] was only operated by persons with appropriate training; (e) adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm. 11 The charge in Matter No. IRC 1732 of 2003 was as follows:

The alleged offence is that [the Company], being an employer, on 28 March 2001, at "Mount Hercules Farm", 340 Mount Hercules Road, Razorback in the State of New South Wales, a work place operated by [the Company] failed to ensure that non-employees, namely David Thorn, Jason McLeod and Craig Haden, were not exposed to risk of injury arising from the conduct of its undertaking while they were at "Mount Hercules Farm", contrary to s 16(1) of the Occupational Health and Safety Act 1983. 12 The particulars of the charge were that the corporate appellant failed to: (a) ensure that persons not in the employer's employment were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work in relation to the operation of the [ATV]; (b) ensure that the [ATV] was only operated by persons with appropriate training; (c) adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm. 13 Mr Kirk was prosecuted under s 50(1) of the Act for deemed contraventions of s 15(1) and s 16(1) of the Act, being Matter Nos. IRC 1731 and 1733 of 2003 respectively. The prosecutions in those matters recited the offences alleged under s 15(1) and s 16(1) (which are set out earlier) and, in relation to each offence, also alleged:

[Mr Kirk] being a person concerned in the management of [the Company], is deemed to have contravened the same section pursuant to s 50(1) of [the Act]. 14 The particulars of those offences were materially the same as those in Matters Nos. IRC 1730 and 1732 of 2003, applying to Mr Kirk as a person concerned in the management of the corporate appellant. Relevant statutory provisions 15 Sections 15 and 16 of the Act are in the following terms:

15 Employers to ensure health, safety and welfare of their employees

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work

(1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

(2) Every self-employed person shall ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work.

(3) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 15, the court may convict the person of an offence against that section.

16 Section 50 of the Act is in the following terms: 50 Offences by corporations

(1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (Repealed) (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

(4) In the case of a corporation which is a council of a local government area, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section. 17 As it may be seen, s 50(1) of the Act provides that where a corporation contravenes any of the Act's provisions, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court of one of the defences in the subsection`. Decision at first instance 18 It is unnecessary to canvass the whole of the liability judgment at first instance because the point on appeal is a relatively narrow one. We shall refer to those aspects of the judgment that are relevant to our consideration on the appeal. 19 Walton J found that the corporate appellant owned the farm at Razorback, that Mr Kirk was the managing director of the corporate appellant and that Mr Palmer was employed by the corporate appellant as manager of the farm. There was no issue that the farm was a place of work. His Honour also found that Mr Kirk was a person in a position to influence the conduct of the corporate appellant with respect to its duties under the Act and at [22] of his liability decision stated: 22 It was Mr Kirk's evidence that he held "total control" over the business activities of the Company. In the circumstances, I am satisfied that Mr Kirk was a person in a position to influence the conduct of the Company with respect to its duties under the Act. Having regard to the aforementioned undisputed facts, it follows that, if the charges against the Company relating to alleged contraventions of ss 15 and 16 of the Act are proven, the charges against Mr Kirk pursuant to s 50 of the Act will also be proven. It should be noted that Mr Kirk would not be guilty of an offence under s 50 if he used all due diligence to prevent those contraventions by the Company. However, as Mr Kirk was effectively the mind and actor, and controlled the relevant actions of the Company at the Farm, no such issue arises. The defendants did not make any contrary submission. 20 At [26] and [94] his Honour described the relationship between Mr Kirk and Mr Palmer as it affected occupational health and safety matters: 26 Mr Palmer had control of the day to day operation of the Farm. Mr Kirk did not supervise Mr Palmer's work, but instructed him of his expectations to "maintain the property and to adhere to all safety regulations especially in regard to motorised vehicles". It was Mr Kirk's evidence that he held monthly meetings with Mr Palmer to discuss those expectations. Mr Kirk was questioned by the prosecutor about his evidence regarding such meetings. Mr Kirk stated that monthly health and safety meetings were held on the Farm with respect to another of Mr Kirk's companies, Kirk Engineering Pty Limited, and that on one occasion Mr Palmer sat in on one of those meetings. Whilst I accept that Mr Kirk and Mr Palmer had frequent discussions, which included discussions about what was happening on the Farm, I am not satisfied that they held regular or systematic meetings regarding occupational health and safety issues (and certainly not meetings of the kind that Mr Palmer attended on that one occasion). ... 94 Mr Kirk did not take an active role in the operation of the Farm due, at least in part, to his ill health and lack of farming experience. Mr Kirk effectively conferred the responsibility for all operational aspects of the Farm on Mr Palmer, including responsibilities for occupational health and safety. Mr Kirk gave evidence that he had provided occupational health and safety training to Mr Palmer. He stated: I charged Mr Palmer with looking after all aspects of health and safety on the Razorback property. I had him in to our head office on numerous occasions, had him study the health and safety documentation provided by three outside consultants, issue him copies of these and asked him to formulate a specific plan for Razorback, but due to his untimely death he had not completed these. Because of the special nature of the Razorback property and there were only two employees I felt he'd be best carrying this out. 21 Additionally at [95]-[98], Walton J referred to evidence regarding the carrying out of a risk assessment, finding no risk assessments had been carried out: 95 Although the documentation provided to Mr Palmer related to the operation of other businesses conducted by Mr Kirk, Mr Kirk considered that there were parallels that could be drawn between those businesses and the Farm. At the time of Mr Palmer's accident, a risk assessment of the Farm had not been conducted, nor was there a specific health and safety plan for the Farm. Mr Kirk gave the following evidence:

Mr Palmer was my personal friend and aide, so he was always asking me what I was doing. I was sitting there for weeks working on the health and safety policy for the Melbourne plant so he was constantly asking me what I was doing and I was constantly showing him what was involved. We never got around to doing it for the farm, we never got around to doing it until after his death.

96 In relation to the ATV, Mr Kirk stated that it was Mr Palmer's responsibility to develop a safe system of work for the operation of the ATV on the Farm and to arrange suitable training and, to carry out an assessment of the hazards associated with operating the ATV on the Farm. Mr Kirk stated: The Company believed Mr Palmer in his role as Farm manager and as part of his duties was responsible for the safe operation of plant and equipment, had assessed the hazards, read the operation instructions which came with the equipment and used them accordingly and appropriately in carrying out his duties.

97 Mr Kirk gave evidence that the Company had never undertaken a risk assessment associated with the use of the ATV on the farm, had never asked Mr Palmer to conduct a risk assessment in relation to the use of the ATV on the Farm and had never determined whether Mr Palmer had the necessary skills or training to manage occupational health and safety on the Farm. 22 At [98] his Honour referred to an incident in which Mr Kirk found it necessary to counsel Mr Palmer about his manner of riding the ATV:

98 The thrust of the evidence was that it was not uncommon for Mr Palmer to ride the ATV quickly. Mr Kirk, on occasion, told Mr Palmer to slow down or be careful in relation to his use of the ATV. Mr Kirk gave evidence that he had counselled Mr Palmer in the past regarding his manner of riding the ATV:

Q You previously said you had to counsel him on occasions because of aggressive driving? A I had seen him drive in a manner which was too fast.

Q Including driving the ATV? A On one previous occasion I sat him down and had a chat to him on his driving the ATV.

Q What did you tell him on the occasion you sat down and told him about his driving of the ATV? A I said I felt he drove too fast and would like to see him drive it in a more sedate manner.

Q Did you tell him anything else about his driving of the ATV? A Not that I can recall. 23 At [104] Walton J noted that Mr Kirk may have been generally aware of his health and safety obligations as an employer as a result of running other businesses, but found it was "abundantly clear that he did not attend to those obligations with respect to the Farm in the same way". His Honour referred to questions put to Mr Kirk regarding a previous accident involving the ATV: Q What incidents were you referring to there? A The fall that I had off the ATV.

Q The fall that you had yourself? A Yes.

Q When was that? A I can't exactly remember it, but I was riding the ATV and near a dam and slipped and it pinned me to the dam.

Q Was this before Mr Palmer died? A Yes, it was.

Q And as a result of that incident, and following it, before he died, did you do anything about occupational health and safety in relation to the ATV on the farm? A No, because it was his personal transport, so I believe he was the only one using it. I don't think I rode it after that.

Q That incident didn't cause you to do anything about occupational health and safety on the farm in relation to the ATV? A Well, it wasn't a farm, it wasn't a livelihood - if it was a workplace, I probably would have done something, but it's my personal home.

24 At [105] of the judgment on liability, Walton J summarised the evidence constituting the basis for finding liability in respect of the corporate appellant, noting the failures listed were the failures of Mr Kirk: 105 In my view, the evidence demonstrates, beyond reasonable doubt, that Mr Kirk (and therefore the Company, except in the case of (k)): (a) had not seen or read the Owner's Manual prior to Mr Palmer's accident; (b) did not supervise the daily activities of employees or contractors working on the Farm; (c) did not conduct a risk assessment, or request any other person to conduct a risk assessment, regarding the use of the ATV on the Farm; (d) did not take any steps to limit or restrict access to the ATV to only those employees and contractors who were suitably qualified and trained to ride the ATV; (e) did not ensure that employees or contractors read and understood the Owner's Manual;

(f) gave no instructions to any employee or contractor, including Mr Palmer, that conditions for use of the ATV specified in the Owner's Manual must be adhered to;

(g) gave no instructions to Mr Palmer to instruct employees and contractors only to use the ATV in accordance with the Owner's Manual; (h) gave no particular instructions to any employee or contractor as to how the Owner's Manual would be applied at the Farm; (i) gave no instructions to any employee or contractor that the ATV was not to be used off-road or on sloping terrain (either generally or of a particular gradient);

(j) relied on Mr Palmer to give instruction and training without equipping him with the knowledge or tools to undertake those duties, and without supervising or monitoring his performance of those duties; (k) approached the creation of a safe system of work differently between two businesses he operated; and

(l) had no system in place to assess and determine whether or not employees of, or contractors to, the Company were trained in the use of the ATV, or were using the ATV in a manner which was safe and without risk to health. 25 At [127] Walton J referred to WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121 at [40]-[42] as authority for the proposition that the employer cannot discharge its duty by wholesale delegation of safety matters to a supervisor or manager. In Fletcher Constructions it was stated: 40 I accept that the Act obliges corporations to engage appropriately qualified persons to ensure that "safety is pursued in an active and ongoing way" and that in meeting its obligations under the Act on a practical level, a corporation may undertake a number of different steps, one of which is the appointment of supervisors with the necessary skills, training and experience to ensure that work is carried out safely. 41 However, it was not, in my view, open to the corporate respondent in these proceedings to entirely delegate its obligations under the Act to a supervisor or manager, regardless of how well qualified he or she may be. The corporate respondent could not simply appoint a manager, instruct him to develop safe systems of work (including work methods and systems for training, supervision and the like) and then, having done so, turn its back on matters of occupational health and safety, taking no further steps to ensure that these systems of work, training and otherwise, had been adequately established and were being complied with. I shall return to this consideration later in this judgment. 42 To adopt what was stated by the Court in WorkCover Authority v Kellogg (No.1) (at 258), these are matters to which a 'managerial mind' should be directed. Whilst the content of such policies and procedures may well be the subject of appropriate advice, ensuring that such steps are taken is a matter for the employer; it is the employer, be it a natural person or corporation, upon whom the Act places the obligation to ensure a safe workplace. 26 Further, at [151]-[153] his Honour found as follows in relation to the risk and the corporate defendant's failings to ensure safety: 151 What, then, was the relevant risk to safety in the present matter? In my view, there was a clear risk, evident from Mr Kirk's own experience and from the express warnings in the Owner's Manual, that the ATV could overturn (or otherwise unbalance) in various circumstances: clearly a situation of potential danger to the health and safety of people at the Company's workplace. In this case, it is only necessary to consider two limited classes of such circumstances. First, off-road driving at the Farm, which, by its very nature, increased the likelihood of many of the precursors to overturning mentioned in the Owner's Manual: excessively steep hills (avoided on one steep hill by a hairpin road specifically built for safety), hidden rocks, bumps or holes, or excessively rough, slippery or loose surfaces. Secondly, towing from the ATV's rack. The existence of these risks required the exercise of a managerial mind to establish a safe system for a vehicle which, by its description and nature, may involve some off-road use or towing. The Act charged the defendants to eliminate these risks to health and safety; the prosecutor has charged that (through failures of systems, information, instruction, training, supervision and risk assessment) they failed to do so. 152 The Company's obligation under the Act to establish a system to eliminate the risk of the ATV overturning when driven off-road or when used for towing required it to assess the risks associated with the use of the ATV on the Farm, particularly having regard to the uneven terrain; to restrict access to the ATV to those employees and contractors who were sufficiently qualified and experienced to ride it; to instruct employees and contractors in relation to the safe use of the ATV; to provide information to employees and contractors regarding the safe operation of the ATV, for instance in the form of the Owner's Manual; to warn employees and contractors at least about the potential for the ATV to overturn; to provide suitable training in relation to the use of the ATV; and to supervise the use of the ATV on the Farm. Only two aspects of the evidence contradict (to a limited extent) the bald statement that none of these things were done. Although I have found that the ATV was generally accessible, it is true that Mr Thorn's access was restricted (although this restriction was not explained, and there was no evidence to suggest that it was a decision made on the basis of safety); I have also found that Mr De Save read the Owner's Manual (out of curiosity, having happened upon it); and, I am prepared to accept that Mr Palmer read it. Again, in view of my finding that no employee or contractor was given any instruction to comply with it, and no attempt was made to regulate its use at the Farm, this evidence does not amount to much in the defendants' favour. Nor, as I will discuss, does it excuse liability. 153 My findings at paragraph [105], in part based on Mr Kirk's unequivocal evidence that: (a) the Company did not have a system in place to determine whether or not Mr Palmer was using the ATV in a safe manner;

(b) the Company had never undertaken a risk assessment associated with the use of the ATV on the farm;

(d) the Company had never determined whether Mr Palmer had the necessary skills or training to manage occupational health and safety on the Farm, but nevertheless gave him the responsibility to develop a safe system of work for the operation of the ATV on the Farm; and

(e) Mr Kirk did not take any steps in relation to health and safety on the Farm pertaining to the ATV following his own accident near a dam in which the ATV overturned;

are sufficient, in my view, (in conjunction with the decision of WorkCover v Fletcher Constructions that an employer cannot discharge its duty by wholesale delegation of safety matters) to find that each of the failures particularised in the charges was established beyond reasonable doubt. Mr Kirk gave evidence that the Company had placed Mr Palmer "in charge" of the health and safety of employees and contractors on the Farm. It may well be that Mr Kirk was not in good health and that he placed enormous trust in his friend and employee, Mr Palmer. However, the duties imposed by ss15 and 16 of the Act fall squarely on the Company. By purporting to delegate all responsibility for health and safety to Mr Palmer, the Company has neglected those duties. However, the Company's failure does not end there. Having delegated total responsibility, the Company took no steps to ensure that Mr Palmer had the necessary skills to conduct a risk assessment, to provide or arrange training, to instruct others in the safe use of the ATV or to supervise the use of the ATV. Further, the Company took no steps to ensure that Mr Palmer carried out his duties, particularly with respect to health and safety. Consequently, it had no effective control over use of the ATV prohibited or warned against by the Owner's Manual. 27 At [156] and [158] Walton J made the following findings in respect of the failures relating to instruction and training in the use of the ATV: 156 The Company's obligations were not circumscribed by dissemination and promulgation of the Owner's Manual. The Company was required to assess the risks associated with the ATV in the actual conditions applying at the Farm and the manner in which it was used on the Farm. It was required, in my view, not only to give instructions as to the application of the Owner's Manual at the Farm but to ensure that those instructions were consistent with the topographical and other conditions of the Farm and with the experience and capabilities of those employees who may drive the ATV. This was not done. Even the basic step, which may have been taken, to instruct employees to stay on roads (notwithstanding the labelling of this vehicle as an "All Terrain Vehicle" and references in the Owner's Manual to off-road use) was not taken by the Company. The fact that Mr Palmer gave such an instruction to two contractors is not evidence that he had the view that such an approach was generally applicable or that he enforced it as a general rule. In any event, the Company gave no such instruction to Mr Palmer or any other employee or contractor. Employees and contractors used it off-road. Nor were instructions given as to driving the ATV on slopes (of whatever gradient). ... 158 The provision of training was a simple step available to the Company to protect the health and safety of persons in the workplace. The Owner's Manual specifically stated that "[t]he risk of an accident is greatly increased if the operator does not know how to operate the ATV properly in different situations and on different types of terrain" and prescribed a certified training course combined with regular practice to avoid this hazard. However, I have found, as a matter of fact, that none of the Company's employees or contractors were instructed or trained in relation to the use of the ATV beyond an initial demonstration of the basic functions of the vehicle. This was despite evidence of an organisation which offered training courses to ATV operators at the time the Company purchased the ATV, and at the time of Mr Palmer's accident. Importantly, the majority of that available ATV training was conducted at clients' sites, thereby addressing the specific risks likely to be faced by users of an ATV at the place of use. Although the extent and standard of training required by the Act will vary depending upon the nature of the work performed and the associated risks, there is no way that the perfunctory introduction to the ATV provided to employees and contractors (including Mr Palmer) could be said to have fully equipped them to safely perform work (including towing) with the ATV (see Genner Constructions at paragraph [58]). 28 Walton J considered the defences under s 53 of the Act and found they had not been made out. At [169] his Honour found the offences proven in relation to the prosecutions brought in Matter Nos. IRC 1730, 1731, 1732 and 1733 of 2003. Competing contentions 29 As we earlier indicated, the appellants' main contention was that Mr Kirk was not the directing mind of the corporate appellant in so far as managing the farm operation was concerned. Rather, that was Mr Palmer's role and it included responsibility for occupational health and safety. That being so, it was submitted, the findings of Walton J, particularly at [105] and [153], that the acts or omissions of Mr Kirk were those of the corporate appellant, were wrong. Further, as there was no finding that Mr Palmer had, by act or omission, contravened the Act it followed, it was submitted, that the corporate appellant had committed no contravention and, ipso facto, Mr Kirk could not be deemed to have contravened the Act under the provisions of s 50(1). 30 The respondent's position was that Walton J had committed no error and that the appellants misunderstood the approach taken by his Honour at first instance. That approach was said to have been one that accepted Mr Kirk's extensive admissions both on behalf of himself and the corporate appellant that he was the controlling mind of the company and that through him the corporate appellant had employed Mr Palmer to take control of occupational health and safety issues on the farm operated by the corporate appellant. However, his Honour found that although the corporate appellant had employed Mr Palmer on that basis, that employment had not relieved it of its responsibility under the Act. His Honour found that the corporate appellant had neglected its duties under the Act precisely because it had sought to delegate its responsibilities under the Act in circumstances where it took no steps to ensure that Mr Palmer had the necessary skills to undertake a risk assessment, to provide or arrange training, to instruct others in the use of the ATV or to supervise the use of the ATV. Indeed, it was submitted the evidence at first instance was that the corporate appellant had never determined whether Mr Palmer had the necessary skills and training to manage occupational health and safety on the farm but purported to hand to him the total responsibility for doing so. 31 It becomes necessary to consider the parties' contentions in more detail. The appellants' primary contention was that a company may not act other than by human agency: Lennard's Carrying Company Limited v Asiatic Petroleum Company Limited [1914] AC 705 at 713 per Viscount Haldane LC; Bolton (Engineering) Co. Ltd v Graham & Sons Ltd. [1957] I QB 159 at 172 per Denning LJ. Further, that Mr Kirk was not the controlling mind of the corporate appellant in so far as the operation of the farm was concerned (including responsibility at the farm for occupational health and safety) and this function had been delegated to Mr Palmer: see Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 171 per Lord Reid, 187 per Viscount Dilhorne and 193 per Lord Pearson; Brambles Holdings Limited v Carey (1976) 15 SASR 270 at 275 per Bray CJ. 32 It was submitted that the evidence pointing to Mr Kirk not being the controlling mind and that this had been delegated to Mr Palmer, included the following: (a) Mr Kirk had no prior experience in the operation of farms of any kind; (b) Mr Palmer was engaged specifically to manage and operate the farm; (c) Mr Palmer had previously managed a large property of his own; (d) Mr Kirk did not supervise Mr Palmer's work, but instructed him of his expectations to "maintain the property and to adhere to all safety regulations especially in regard to motorised vehicles"; (e) Mr Palmer was paid for working 15 hours per week, but was present at the Farm virtually all the time; (f) Mr Kirk "did not take an active role in the operation of the Farm due, at least in part, to his ill health and lack of farming experience. Mr Kirk effectively conferred the responsibility for all operational aspects of the Farm on Mr Palmer, including responsibilities for occupational health and safety."; (g) Mr Palmer had, in the context of occupational health and safety, been asked by Mr Kirk to study the health and safety documentation provided to the Company by three outside consultants, and had been asked to formulate a specific plan for the property. 33 The appellants submitted: [T]he evidence clearly demonstrated that Mr Palmer was the ego, or in the alternative the alter ego, of the Company. Walton VP's findings of fact are to that effect. The evidence was to the effect that Mr Kirk had not assumed any responsibility for the limited operations of the Company, although he retained overall financial control. In those circumstances, the true characterisation is that the Company had appointed Mr Palmer as its alter ego. The assumption implicit in paragraph 105 of Walton VP's reasons that Mr Kirk was the ego or alter ego of the Company is with respect in error and is entirely contradicted by His Honour's other findings of fact... Even if it were possible to find that Mr Kirk retained some overall managerial responsibility, in light of the factual findings the only way in which the Company, through Mr Kirk, could have complied with its obligations was by the appointment of an appropriately qualified person: in other words, Mr Palmer. ... Whilst it may be accepted that Mr Kirk was the controlling mind of the Company which owned the property..., it may equally be accepted that Mr Kirk lacked the skills, qualifications or experience to play any role whatsoever in the operation of the farm. The Company could, in those circumstances, act only through the advice, assistance and experience of an appropriately qualified person. 34 Thus it may be seen that the appellants' contention was that Mr Kirk lacked the skills, qualifications or experience to play any role whatsoever in the operation of the farm and that, in those circumstances, the corporate appellant could act only through the advice, assistance and experience of an appropriately qualified person, namely, Mr Palmer. First, we doubt that the evidence supported the proposition that Mr Kirk lacked any capacity to manage operations on the farm; he conducted, independently, engineering and printing businesses and was capable of formulating and administering an occupational health and safety policy in respect of those businesses. There was no reason that we can see why Mr Kirk was not capable of doing the same in respect of his farm.

35 Secondly, and more significantly, we do not accept that an employer to whom ss 15(1) and 16(1) applies may delegate the whole of the responsibility for health and safety to another person and thereby avoid liability. United Kingdom authorities

36 To begin with, we refer to the approach taken by the courts in the United Kingdom to this issue. The reason for doing so is that the higher courts in the UK have given close consideration to the question of whether the duty to ensure safety may be delegated. 37 The counterpart statute to the Occupational Health and Safety Act in the UK is the Health and Safety at Work Act 1974. In relation to the general duties of employers it provides in s 2(1): It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health safety and welfare of all his employees at work. Section 3(1) provides: It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety. 38 The similarity of the two provisions to s 15(1) and s 16(1) is immediately apparent. Whilst the two general duties provisions in the UK Act provide that the absolute duty to ensure health and safety is qualified by a reasonably practicable test, the onus of proving it was not reasonably practicable to ensure safety lies with the employer in the same way as proving the defence under s 53(a) of the NSW Act does: see s 40 of the UK Act.

39 That the duty to ensure safety under the UK statute is absolute, subject to the defence of reasonable practicability, may not be doubted: see Regina v Board of Trustees of the Science Museum [1993] ICR 876; Regina v Associated Octel Co Ltd [1996] 1 WLR 1543; Regina v British Steel Plc [1995] ICR 586; R v Gateway Foodmarkets Ltd [1997] 2 Cr App R 40; Regina v Nelson Group Services (Maintenance) Ltd [1999] 1 WLR 1526.

40 In British Steel, the defendant company used subcontractors to provide two men on a labour hire basis to reposition a section of steel platform. The defendant company's employee, an engineer, was responsible for supervising the operation. The platform collapsed, killing one of the men. The defendant company was convicted of failing to discharge the duty of every employer under s 3 of the Health and Safety at Work Act. The defendant company appealed.

41 On appeal, counsel for the company submitted that s 3(1) permitted a corporate employer to escape criminal liability if at "directing mind" level the company had taken reasonable care. Counsel's submissions derived from the concept of a corporate employer who may only act through directors and senior management. Counsel relied on Tesco, which is also relied upon by the appellants in these proceedings. Tesco involved a charge against a supermarket chain under the Trade Descriptions Act 1968 (UK). The chain sought to raise a defence under s 24(1) of that Act on the grounds that the commission of the offence was due to the act or default of the store manager ("another person") and that they had taken all reasonable precautions and exercised all due diligence to avoid the commission of such an offence. It was held, inter alia, that the taking of precautions and exercise of due diligence by the defendants under s 24(1)(b) involved the duty of setting up an efficient system for the avoidance of offences under the Act, and a proper operation of the system; that the defendants had adequately performed that duty and had not delegated to their store managers the functions of ensuring that the system was carried out and that, accordingly, the defendants had satisfied the requirements of s 24(1)(b).

42 Lord Reid stated at 157: They [the board of directors] set up a chain of command through regional and district supervisors, but they remained in control. The shop managers had to obey their general directions and also take orders from their superiors. The acts or omissions of shop managers were not acts of the company itself. 43 After referring to the above passage from Lord Reid's speech, Steyn LJ in British Steel observed: Lord Reid's observations reflected the ratio decidendi of the case. Once that decision was reached, the company was able to establish a defence that the commission of the offence was due to a mistake or to the act or default of another person, namely, the store manager, himself an employee. The presence of such a "due diligence" provision was a powerful indication that the purpose of the Trade Descriptions Act 1968 must indeed "have been to penalise those at fault, not those who were in no way to blame." Significantly, there is no due diligence defence in the Act of 1974.... Thus, quite apart from the fact that Tesco Supermakets Ltd v Nattras [1972] AC 153 involves consumer protection, whereas the present case involves health and safety, which prima facie requires more stringent protection, the legislative techniques of the two statutes are quite different as is apparent from a comparison of section 20(1) and section 24(1) of the Trade Descriptions Act 1968 and section 3(1) of the Health and Safety at Work etc Act 1974 Subject to the qualifying words "so far as is reasonably practicable,"... section 3(1) of the Act of 1974 is prima facie cast in absolute terms. The words "so far as is reasonably practicable" are simply referable to measures necessary to avert the risk: ... In our judgment the decision in Tesco does not provide the answer to the problem of construction before us. The answer must be found in the words of section 3(1) of the Act of 1974 read in its contextual setting (emphasis added) . 44 A little later, Steyn LJ held at 593: If it be accepted that Parliament considered it necessary for the protection of public health and safety to impose, subject to the defence of reasonable practicability, absolute criminal liability, it would drive a juggernaut through the legislative scheme if corporate employers could avoid criminal liability where the potentially harmful event is committed by someone who is not the directing mind of the company. After all, as Stuart-Smith L.J. observed in Reg v Associated Octel Co Ltd, [[1995] ICR 281] at p. 292, section 3(1) is framed to achieve a result, namely, that persons not employed are not exposed to risks to their health and safety by the conduct of the undertaking. If we accept British Steel Plc.'s submission, it would be particularly easy for large industrial companies, engaged in multifarious hazardous operations, to escape liability on the basis that the company through its "directing mind" or senior management was not involved. That would emasculate the legislation. 45 In Regina v Associated Octel Co Ltd [1995] ICR 281 the defendant company operated a chemical plant. During an annual shutdown of the plant, the task of repairing the lining of a tank within the chlorine plant was given to an independent specialist contractor. One of the contractor's employees was badly burned during the process. The defendant company was convicted of failing to discharge its duty under s 3(1) of the Act. The defendant company appealed to the Court of Appeal which dismissed the appeal, holding that the repairing of the lining of the tank was part of the carrying-on of the employer's business, and was, therefore, part of the employer's conduct of his undertaking within the meaning of s 3(1) whether the work was done by the employer's own employees or by independent contractors.

46 Stuart-Smith LJ observed at 292: Although Steyn L.J. was not dealing with a case involving the activities of independent contractors, classically liability for the acts of independent contractors is one of the hallmarks of absolute liability. The section is so framed as to achieve a result, namely, that persons not employed are not exposed to risks to their health and safety by the conduct of the undertaking. That result could be defeated if, ipso facto, the duty could be delegated to an independent contractor (emphasis added).

47 At 293 the Court stated: In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person -- that he has the skill and expertise, including knowledge of appropriate safety precautions, which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public. And he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor. But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken... The question of what is reasonably practicable is a matter of fact and degree in each case. It will depend on a number of factors so far as concerns operations carried out by independent contractors; what is reasonably practicable for a large organisation employing safety officers or engineers contracting for the services of a small contractor on routine operations may differ markedly from what is reasonably practicable for a small shopkeeper employing a local builder on activities on which he has no expertise. The nature and gravity of the risk, the competence and experience of the workmen, the nature of the precautions to be taken are all relevant considerations. 48 In Associated Octel the employer appealed to the House of Lords: [1996] 1 WLR 1543. The House of Lords also dismissed the appeal, deciding that it was part of the undertaking of the employer in that case "not merely to clean the factory, but also to have the factory cleaned by contractors." The reasons of their Lordships were contained in the speech of Lord Hoffmann who said, at 1548: The employer must take reasonably practical steps to avoid risk to the contractors' servants which arise, not merely from the physical state of the premises ... but also from the inadequacy of the arrangements which the employer makes with the contractors for how they will do the work.

49 British Steel and Associated Octel were concerned with offences under s 3(1) of the UK Act. However, in Gateway Foodmarkets the Court of Appeal considered that s 2(1) was to be applied in the same way as s 3(1). At 45 Evans LJ stated: If section 2(1) stood alone, then it might be possible to contend that its wording "the duty of every employer" meant that the duty imposed on the employer was personal to him, so that no breach was committed unless the individual or, the employer being a company, its "directing mind" had "failed to ensure" the health, etc., of its employees. However, the same wording appears in section 3(1), and in my judgment the general considerations referred to in the authorities, including the purpose and object of the legislation, make it overwhelmingly clear that section 2(1), like section 3(1), should be interpreted so as to impose liability on the employer whenever the relevant event occurs, namely, a failure to ensure the health, etc., of an employee (emphasis added).

50 The Court in Gateway Foodmarkets went on to consider the problem of an employer incurring criminal liability for isolated acts of negligence by a junior employee at 45-46: We agree that it is a somewhat extreme contention that the employer should be held criminally liable even for an isolated act of negligence by a junior employee, affecting the health, safety or welfare either of a fellow employee (section 2(1)) or of some other person (section 3(1)). The question is, whether that extreme consequence is one which results from the proper construction of the two subsections.

We would hold not, but we hasten to add that a conclusion on this issue is not necessary for the purposes of the present appeal.

The answer lies, we suggest, in the application of the qualification or caveat contained in the statute itself. The duty under each section is broken if the specified consequences occur, but only if "so far as is reasonably practicable" they have not been guarded against. So the company is in breach of duty unless all reasonable precautions have been taken, and we would interpret this as meaning "taken by the company or on its behalf". In other words, the breach of duty and liability under the section do not depend upon any failure by the company itself, meaning those persons who embody the company, to take all reasonable precautions. Rather, the company is liable in the event that there is a failure to ensure the safety, etc., of any employee, unless all reasonable precautions have been taken--as we would add, by the company or on its behalf.

If this is correct, then it follows that the qualification places upon the company the onus of proving that all reasonable precautions were taken both by it and by its servants and agents on its behalf. The concept of the "directing mind" of the company has no application here.... (emphasis added) 51 It is apparent from the English cases in relation to a statute that, in so far as it is relevant, has close similarity with the Occupational Health and Safety Act 1983, that: (1) The employer's duty to ensure safety is absolute subject only to the defence of reasonable practicability;

(2) The employer's duty to ensure safety may not be delegated; (3) In circumstances where an employer does not have the skill and expertise, including knowledge of appropriate safety precautions, the employer may be entitled to rely on another person, such as a specialised contractor, to undertake the work. However, in so relying, in order to avoid criminal liability the employer must prove, on the balance of probabilities, that it took reasonably practicable steps to avoid any risk arising either to employees under s 2(1) or to non-employees under s 3(1); and, (4) The concept of "directing mind" of the company has no application in circumstances where the statute holds the company absolutely liable for the offence. 52 In the present case it was contended, as we have said, that Mr Kirk did not have the capacity to manage the farm, including taking responsibility for occupational health and safety, and that this function was wholly delegated to Mr Palmer. This is no different to the employer in Associated Octel entrusting the task of repairing the lining of a tank within the chlorine plant to an independent specialist contractor, or the employer in Nelson Group Services relying on its fitters to install gas appliances in domestic premises, or the employer in British Steel relying on its engineer to supervise the work of re-positioning the steel platform. In none of those cases was the controlling mind of the corporation capable of undertaking the work. Nevertheless, in none of those cases was it accepted by the court that the employer could delegate its duty for ensuring safety. New South Wales law

53 In relation to the New South Wales statute there is no basis for placing a relevantly different construction on ss 15(1) and 16(1) to that placed on ss 2(1) and 3(1) of the English statute in so far as the four propositions in [51] above are concerned. First, liability under ss 15 and 16 is absolute: see Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339 at [214] and the cases referred to therein. Secondly, the employer's duty to ensure safety may not be delegated: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121 at [40]-[42] and at [97]-[99]; WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) (No 2) (2003) 121 IR 283 at [42]. Thirdly, there may be circumstances where the employer is entitled to rely on another person, such as a specialised contractor, to undertake work at the employer's place of work or undertaking. Such circumstances may include where an employer does not have the skill and expertise, including knowledge of appropriate safety precautions, to perform the work. However, in so relying, in order to avoid criminal liability the employer must prove, on the balance of probabilities, that it was either not reasonably practicable for it to comply with its obligation to ensure the safety of its employees (s 53(a)) or the commission of the offence was due to causes over which the employer had no control and against the happening of which it was impracticable for the employer to make provision (s 53(b)): see also Fletcher Constructions. Fourthly, although the employer may delegate another person to undertake work at the employer's place of work or at its undertaking for the purpose of reliance of the kind referred to in the last sentence, that does not become a delegation to that other person of the corporation's duty under ss 15(1) and 16(1) of the Act to ensure the health and safety of employees and other persons. As noted above, however, the reliance by the employer on the contractor could result, as a matter of fact, in the employer's acquittal of the offence charged.

54 The Occupational Health and Safety Act has the important social purpose "to secure the health, safety and welfare of persons at work". As was stated by Lord Shaw in Butler (or Black) and Another v Fife Coal Company Limited [1912] AC 149 (HL) at 178-179: The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable. 55 To similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit. 56 To accept the proposition that an employer may divest itself of any responsibility for occupational health and safety by the simple expedient of saying to a manager for instance, "You are wholly responsible for occupational health and safety at this place of work", such place of work being that of the employer, would be inconsistent with "making the remedy effective and the protection secure" under the statute. As Steyn LJ observed in British Steel to accept the proposition, "would drive a juggernaut through the legislative scheme". What makes the proposition even more unsustainable in this case is that Mr Kirk conceded in his evidence that he had never undertaken "any assessments of Mr Palmer in order to determine whether he had the necessary skills or training to manage occupational health and safety on the farm". Controlling mind of appellant

57 In the present appeal we are left in no doubt that Mr Kirk was the controlling mind of the corporate appellant. He was the managing director of that entity and on his own evidence, and as Walton J found, Mr Kirk had "total control" over the corporate appellant's activities. Moreover, we do not accept that Mr Kirk lacked the necessary knowledge and skill to manage occupational health and safety on the farm; the evidence was that he conducted, independently, engineering and printing businesses and was capable of formulating and administering an occupational health and safety policy in respect of those businesses. Indeed, at about the time of Mr Palmer's death, Mr Kirk was showing him how to formulate a health and safety policy. 58 Other evidence relevant to the question of Mr Kirk's ultimate control over the corporate appellant and his authority in respect of the management of the farm, also appears in the re-examination of Mr Kirk: Q. You see in your answer you said: "Yes, as managing director and in the light of previous incidents"? A. Yes. Q. What incidents were you referring to there? A. The fall of the ATV. Q. When was that? A. I can't exactly remember it, but I was riding the ATV and near a dam and slipped and it pinned me to the dam. Q. It turned over? A. Yes. Q. Was this before Mr Palmer died? A. Yes, it was. Q. And as a result of that incident, and following it, before he died, did you do anything about occupational health and safety in relation to the ATV on the farm? A. No, because it was his personal transport, so I believe he was the only one using it. I don't think I rode it after that. Q. That incident didn't cause you to do anything about occupational health and safety on the farm in relation to the ATV? A. Well, it wasn't a farm, it wasn't a livelihood - if it was a workplace, I probably would have done something, but it's my personal home.

Thus, if Mr Kirk had regarded the farm as a workplace - which it was found to be - he "probably would have done something" about occupational health and safety in relation to the ATV. The available inference is that Mr Kirk regarded himself as retaining ultimate authority over occupational health and safety on the farm. Further support for that conclusion is the evidence that Mr Kirk had occasion to counsel Mr Palmer about the safe operation of the ATV.

59 Walton J was alive to the appellants' contentions that the responsibility for occupational health and safety at the farm had been vested in Mr Palmer. However, his Honour, correctly, rejected those contentions: see [127] and [153] of his Honour's liability judgment. Thus, there was no basis for concluding, as contended in the grounds of appeal, that Walton J erred in that he dealt inappropriately with issues of corporate responsibility by failing to determine that the company had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the company to fulfil the duty and/or that his Honour erred in finding that the company relevantly acted to fulfil its duties through the agency of Mr Kirk rather than Mr Palmer. It was not open to the appellants in the circumstances to delegate the corporate appellant's duty to ensure safety and, therefore, the corporate appellant could not fulfil its duty by purporting to transfer corporate responsibility to Mr Palmer. 60 Walton J correctly identified Mr Kirk as the controlling mind of the corporate appellant and at [105] and [153] was correct in his findings regarding the culpability and liability of both the corporate appellant and Mr Kirk. No effective delegation 61 These conclusions are sufficient, in our view, to dispose of the appeal. However, although it was not contended at first instance or on appeal, we wish to consider the position as if the submission had been put that the corporate appellant had, at the level of its directing mind - namely Mr Kirk - entrusted the responsibility for occupational health and safety at the farm to Mr Palmer because of his experience and expertise (and the appellants' lack of it) and in doing so had discharged its obligations to ensure safety under ss 15(1) and 16(1) of the Act. In other words, having rejected the appellants' contentions that they were entitled to wholly delegate their duty to ensure safety under the relevant provisions of the statute to Mr Palmer, was there potentially a case for concluding that by handing to Mr Palmer the responsibility for safety on the farm in circumstances where the appellants claimed they had no skill or knowledge or experience, did the corporate appellant, through its directing mind, Mr Kirk, meet its obligations to ensure safety? 62 As we have already noted, Mr Kirk conceded in his evidence that he had never undertaken "any assessments of Mr Palmer in order to determine whether he had the necessary skills or training to manage occupational health and safety on the farm". Nevertheless, the appellants contended that looked at as a whole the evidence showed this was not the case and that Mr Kirk did satisfy himself of Mr Palmer's capacity to manage occupational health and safety. In this respect, the appellants referred to: · Mr Kirk showing Mr Palmer how to formulate a health and safety policy. However, the evidence was that no such policy was implemented prior to Mr Palmer's death.

· Meetings between Mr Kirk and Mr Palmer regarding health and safety on the farm. However, Walton J found that whilst Mr Palmer may have sat in on one meeting held on the farm with respect to another of Mr Kirk's companies, Kirk Engineering Pty Limited, and whilst Mr Kirk and Mr Palmer had frequent discussions, which included discussions about what was happening on the farm, his Honour was not satisfied the two men held regular or systematic meetings regarding occupational health and safety issues.

· The corporate appellant's delegation to and reliance upon Mr Palmer to manage occupational health and safety. However, this is a non sequitur. It does not follow that because Mr Palmer was delegated the function of managing occupational health and safety or that because Mr Kirk believed him to be a diligent and capable manager Mr Kirk satisfied himself that Mr Palmer had the capability of ensuring the health and safety of employees and other persons at the farm. 63 We do not consider that Mr Kirk took proper and sufficient steps to satisfy himself Mr Palmer had the skill, experience or knowledge to manage occupational health and safety on the farm and simply assumed that to be the case. In that circumstance, there could have been no effective delegation by Mr Kirk, or the corporate appellant, to Mr Palmer to manage safety at the farm. 64 However, even if it was accepted that there had been effective delegation, as Walton J found at [153] of the liability judgment: By purporting to delegate all responsibility for health and safety to Mr Palmer, the Company has neglected those duties. However, the Company's failure does not end there. Having delegated total responsibility, the Company took no steps to ensure that Mr Palmer had the necessary skills to conduct a risk assessment, to provide or arrange training, to instruct others in the safe use of the ATV or to supervise the use of the ATV. Further, the Company took no steps to ensure that Mr Palmer carried out his duties, particularly with respect to health and safety. Consequently, it had no effective control over use of the ATV prohibited or warned against by the Owner's Manual. Breaches by Mr Palmer 65 Walton J made certain other findings, especially at [105] and [153], regarding the appellants' failures to ensure the safety of employees and non-employees. Those findings were not challenged on the appeal except to the extent that it was contended his Honour failed to determine that the corporate appellant had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the corporate appellant to fulfil the duty and that there were no findings that Mr Palmer, as the controlling mind of the company in respect of the farm operations, committed any breach of the Act. 66 We have found there was no error on the part of Walton J in finding that Mr Kirk and not Mr Palmer was the directing mind of the corporate appellant. Accordingly, it is unnecessary to consider the appellants' contention that Mr Palmer committed no breach. Powers on appeal

67 At the conclusion of the hearing of the appeal, the Full Bench raised with counsel for the respective parties whether, in light of the provisions of s 5AA of the Criminal Appeal Act, the Full Bench had the power to remit any matter for fresh determination if the Full Bench considered that was an appropriate course. The parties were given time to consider the question and to provide short written submissions. The submissions were duly provided. However, given our decision in this appeal no issue of remitter arises and it becomes unnecessary to deal with the supplementary submissions.

69 We make the following orders: (1) The appeal is dismissed. (2) The monies paid to the Industrial Registrar in accordance with our judgment of 15 November 2006 shall be disbursed in accordance with the Orders made by Walton J. (3) The balance of the monies the appellants are liable to pay pursuant to the orders of Walton J shall, subject to the provisions of the Fines Act 1996, be paid to the Industrial Registrar within 28 days. (4) The appellants are to pay the respondent's costs of the appeal in an amount as agreed or assessed. _______________________________________________________

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Bolton (Engineering) Co. Ltd v Graham & Sons Ltd. [1957] 1 QB 159 Brambles Holdings Limited v Carey (1976) 15 SASR 270 Butler (or Black) and Another v Fife Coal Company Limited [1912] AC 149 (HL) Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (2006) 154 IR 310 Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (Inspector Childs) (2006) 158 IR 281 Lennard's Carrying Company Limited v Asiatic Petroleum Company Limited [1914] AC 705 Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339 R v Gateway Foodmarkets Ltd [1997] 2 Cr App R 40 Regina v Associated Octel Co Ltd [1995] ICR 281 CASES CITED: Regina v Associated Octel Co Ltd [1996] 1 WLR 1543 Regina v Board of Trustees of the Science Museum [1993] ICR 876 Regina v British Steel Plc [1995] ICR 586 Regina v Nelson Group Services (Maintenance) Ltd [1999] 1 WLR 1526 Rice v Henley (1914) 19 CLR 19 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) (No 2) (2003) 121 IR 283 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2005) 137 IR 462 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166

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