WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor - [2004] NSWIRComm 207 - NSWIRComm 1997 case summary — Zoe

NSWNSWIRComm

WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor

[2004] NSWIRComm 207

Industrial Relations Commission (NSW)|1997-05-02|Before: Walton J, Grove J, Peterson J, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1997-05-02

Before

Walton J, Grove J, Peterson J, Mr J

Catchwords

02/11/2004
04/05/2004 DATE OF JUDGMENT: 08/09/2004

Source

Original judgment source is linked above.

Catchwords

02/11/200404/05/2004 DATE OF JUDGMENT: 08/09/2004

Judgment (327 paragraphs)

[1]

CITATION : WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 revised - 19/01/2005 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Childs) PARTIES : DEFENDANT: Kirk Group Holdings Pty Limited Graeme Joseph Kirk FILE NUMBER: IRC 1730, 1731, 1732 & 1733 of 2003 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - prosecutions under ss 15, 16 and 50 - deemed contraventions - failure to establish a safe system of work - all terrain vehicle (ATV) - access to ATV - failure to provide information, instruction, training or supervision - safety manual - failure to conduct risk assessment - risk must be assessed having regard to the particular conditions in which the ATV will be used - risk of ATV overturning when used off-road or for towing - liablity is absolute or strict - delegation of responsibility - obligation to be proactive in securing health and safety - duty owed to careless employees - risk need not be reasonably foreseeable - causal connection - discussion of unduly remote risks - discussion of detriment to safety - s53 - foreseeability relevant to defence - no defence - charges proven Evidence Act 1995 LEGISLATION CITED : Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 ABB Power Transmission Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (unreported, CT 1215 of 1996, 2 May 1997) Cullen v State Rail Authority (NSW) (1989) 31 IR 207 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Genner Constructions Pty Limited v Workcover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 He Kaw Teh v The Queen (1985) CLR 523 Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 Kirkby v A & M I Hanson (1994) 55 IR 40 McLean v Tedman (1984) 155 CLR 306 McMartin v The Broken Hill Proprietary Company Ltd (unreported, Grove J, 5 February 1988, p7) O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 CASES CITED : Ridge Consolidated Pty Ltd v Mauger (2002) 115 IR 78 Shannon v Comalco Aluminium Pty Ltd v Callaghan [1985] 11 IR 467 State Rail Authority v Dawson [1990] 37 IR 110 Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Limited (No 1) (2000) 101 IR 239 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No 2) (2001) 110 IR 447 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd (unreported, CT 1247 of 1993, Peterson J, 24 July 1995) WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 WorkCover v TRW [2001] NSWIRComm 52 HEARING DATES: 02/10/2004; 02/11/2004; 04/05/2004 DATE OF JUDGMENT: 08/09/2004

[177]

POTENTIAL HAZARD WHAT CAN HAPPEN HOW TO AVOID THE HAZARD Operating this ATV without proper instruction The 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 Beginning and inexperienced operators should complete the certified training course offered by Polaris Industries Inc. They should then regularly practice the skills learned in the course and the operating techniques described in the Owner's Manual Operating this ATV at excessive speeds Increases your chances of losing control of the ATV, which can result in an accident Always travel at a speed which is proper for the terrain, visibility and operating conditions; and your experience. Operating on excessively steep hills. The vehicle can overturn more easily on extremely steep hills than on level surfaces or small hills. Never operate the ATV on hills too steep for the ATV or for your abilities. Practice on smaller hills before attempting large hills. Never operate ATV on hills steeper than 25. Failure to use extra care when operating this ATV on unfamiliar terrain You can come upon hidden rocks, bumps, or holes, without enough time to react. Could result in the ATV overturning or going out of control. Go slowly and be extra careful when operating on unfamiliar terrain. Always be alert to changing terrain conditions when operating the ATV. Failure to use extra care when operating on excessively rough, slippery or loose terrain. Could cause loss of traction or vehicle control, which could result in an accident, including an overturn. Do not operate on excessively rough, slippery or loose terrain until you have learned and practiced the skills necessary to control the ATV on such terrain. Always be especially cautious on these kinds of terrain. Going down a hill improperly Could cause loss of control or cause ATV to overturn Always follow proper procedures for going down hills as described in the Owner's Manual.... NOTE: A special technique is required when braking as you go downhill. Always check the terrain carefully before you start down any hill. Shift your weight backward. Never go down a hill at high speed. Avoid going down a hill at an angle which would cause the vehicle to lean sharply to one side. Go straight down the hill where possible.

[248]

123 The issues raised by this case and the manner in which the prosecution has been defended warrant a review of the legal principles which govern the operation of ss15 and 16 of the Act. The summary of authorities distilled by Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at 288 - 289 and endorsed recently by the Full Court in WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] 110 IR 447 at [16] provides an excellent overview: ... An extensive review of the nature of the liability created by s 15(1) was recently conducted by the Full Bench in Drake Industrial (90 IR at pp 449-453) by reference to the authorities as they had developed. In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at pp 288-289, Hungerford J had occasion to again review this general question and, after citing the main authorities concerned, drew the following propositions : (1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain. (3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace. (4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances. (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based. (6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment. (7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. (8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. (9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate. (10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable. (11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision. (12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence.

[258]

127 It is clear, following WorkCover v Fletcher Constructions (which turned on this point), that the employer cannot discharge its duty by wholesale delegation of safety matters to a supervisor or manager (at [40] - [42]): [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. 128 Finally, it is well settled that an employer's obligation under the Act to ensure the health and safety of its employees and contractors extends to the hasty, careless, inadvertent, inattentive or unreasonable employees and contractors. This is a facet of the pro-active nature of the duty, described in such forceful terms by Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 ("employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety") and by Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248. In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 the majority held (at [45] - [46]):

[265]

130 The duties imposed by ss15 and 16 are not limited to the prevention of injury: they require an employer to ensure that employees (and contractors) are not exposed to risks to their health and safety whilst at work (or whilst at the employer's place of work in the case of contractors). Section 15 of the Act does not refer to the word "risk" in the primary obligation placed upon employers, using it instead in subsection (2) to describe examples of contraventions, should employers fail to provide or maintain plants, systems, places of work or working environments which are "safe and without risks". The breadth and demanding nature of the duty has generated detailed judicial scrutiny of the concept of "risk" over the years, testing the boundaries of ss 15 and 16 of the Act. Clearly the risks to be guarded against must be to the health, safety or welfare of employees or contractors; but what are the limitations? Risks that arise independently of the employer and cannot be completely eliminated from a particular workplace, risks that are not reasonably foreseeable, and risks that are impossible to anticipate, unduly remote or speculative, have all been judicially considered in the context of liability under ss15 and 16 of the Act. In Haynes v C I & D Manufacturing, the Full Court of the Industrial Court of New South Wales (referring to earlier authorities) held at 157: Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose ''(t)o secure the health, safety and welfare of persons at work'' and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Div 1 of Pt 3 thereof (which contains ss15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. The importance of this aspect of the OHS Act to the nature and scope of the offences it creates may be demonstrated by reference to the Minister's Second Reading Speech in introducing the Bill for the OHS Act in to Parliament: see Interpretation Act 1987 (NSW), s 34(2)(f). In that respect, the then Minister for Industrial Relations and Minister for Technology, the Hon Mr P D Hills, said (Legislative Assembly, Hansard , 1 December 1982, pp 3683-3684, 3687-3688): The purpose of this bill is, for the first time in New South Wales and indeed for the first time in any Australian State, to provide effectively for the safety, health and welfare of all persons in all workplaces, including those of the Crown, and those of self-employed persons, under the umbrella of one single piece of legislation. It is the most important measure of its kind ever to come before this House. This bill and its regulations will have wide-ranging provisions designed to embrace every area of the work environment, every hazardous occupation, and every used [sic] of dangerous substances and chemicals, and it will keep pace with technology in so far as it relates to the workplace. ... ... First, rapid changes in technology occurring in the workplace, and the use of new chemicals and substances, make it essential that the bulk of technical provisions related to this bill must be dealt with in regulations. They are far too many, too complex and too detailed to be incorporated in the main bill. Second, legislation and regulations, regardless of how carefully they are framed, will not of themselves improve safety in the workplace. Alongside the constructive means of ensuring that preventative measures are adopted, as advanced in this bill, is the foremost need for management and employees to adopt far higher conscious standards in their approach to workplace safety.

[273]

· '' Would the act or omission alleged in each summons have ensured the health, safety and welfare at work of the officers? · Would the act or omission have provided plant or systems of work that were safe and without risks to health? · Did the acts or omissions alleged create a situation of potential danger to the health or safety of the officers? · What were the objective facts causing detriment to safety and was there a causal connection therewith of the employer? · Has the prosecution proved beyond reasonable doubt that the events were caused by the failure of the employer and not some other unrelated factor?''(Emphasis added.) and the prosecutor's response (at [12]): (1) The relevant failure by the defendant the subject of the charge in each summons was not the risk created by Mr McGowan but the risk arising from its various failures in a situation where the two police officers were working in an environment where they were at risk of being shot or experiencing physical harm; the relevant risk, therefore, was that brought into existence by the defendant. (2) Whilst the defendant was not aware Mr McGowan posed the specific risk which occurred, the defendant was well aware of the type of risk which could arise for police officers engaged on operational duties; it was not a question of the defendant being responsible for the actions of Mr McGowan. The defendant should be held responsible for its acts or omissions in circumstances where the type of risk posed by Mr McGowan was well known to it. (3) To interpret s 15, as did the defendant, as not extending to any risks to employees arising from the unlawful actions of third parties would be a mandate for employers to ignore such risks and there was no basis in the legislation for such a narrow approach. That was especially the case with police officers whose main role was to deal with unlawful activity and, given the intention of the statute to improve the safety of the working environment, no such narrow view should be accepted. (4) The defendant's submission that the prosecutor must prove that the absence of the act or omission allegedly creating the risk to safety would have ensured the health and safety of the two officers misapprehended the statutory duty on the employer pursuant to s 15(1) - rather, the duty was to show that the act or omission amounted to a failure by the employer to ensure or provide for the safety of the two officers; the prosecutor must show an act or omission which detracted to the relevant degree from the obligation to ensure safety in the workplace.

[274]

[137] Hungerford J considered Haynes v CI&D Manufacturing and the following passage from Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 (including the analysis in that case of Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467): We consider that this submission is misconceived. Firstly, the submission focuses on the foreseeability of the alleged risk to safety. The authorities cited above establish that in order to demonstrate a breach of s 15(1) the prosecutor is required to prove the existence of a failure on the part of the employer which is causally connected with the risk to safety. There can be no failure on the part of the employer in not taking steps to preclude a risk which was impossible to anticipate: see WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd (unreported, Peterson J). However, the appellant goes further and submits that no breach of s 15(1) is committed where the employer does not know of the hazard and could not reasonably know about it. The concept of "reasonable foreseeability" is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 at 469. Under s15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s15(1). Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

[275]

[138] Hungerford J then rejected the defendant's general submissions in avoidance of all the charges that the relevant risk was created externally from the defendant by unpredictable and criminal conduct over which the defendant had no control, preferring instead the prosecutor's stance. Due to the importance of his Honour's analysis in this aspect of his judgment I shall set out in full the relevant passages (at [22]-[24]) as follows: [22] The general submission made by Mr Hastings on which his no-case application was based as to all charges was that the relevant risk to safety here was Mr McGowan over whose unpredictable and unlawful conduct the defendant had no control; and, so senior counsel submitted, there was no causal nexus of the defendant to the detriment to safety of the two officers. In my view, that submission cannot be sustained. Mr Hastings went further and submitted that the significance of Mr McGowan's role was such that there was nothing the defendant could have done to obviate the risk caused by Mr McGowan; as senior counsel said - "There is nothing to provide the employees with safety in those circumstances". Even given, which I think clearly was the case, that Mr McGowan presented as a risk to the officers' safety, that is not what any of the charges were directed to. The charges identified what were alleged to be risks existing to the safety of the two officers apart from the ultimate actions of Mr McGowan in causing their deaths. The answer to Mr Hastings' submission in this respect is simply that it concentrated on the incident itself, that is the fatal shooting of the two officers by Mr McGowan, rather than the situation in which the officers were placed while performing operational duties at the time and place of the incident in terms of risks to their health and safety occasioned by the particular detriments identified in each of the charges. In other words, the defendant's submission fell into the same vice by concentrating on the incident itself as the Full Court in Haynes v C I & D Manufacturing found occurred there at first instance.

[289]

138 One other matter should be referred to in any examination of "risk" and that is the phrase "detriment to safety", a phrase which has the potential to be more confusing than instructive, and should be used with caution. The phrase seems to derive from the following passage from McMartin v The Broken Hill Proprietary Company Ltd which, in context, equated "detriment to safety" with that which is proscribed by the Act: In an unrestricted sense it would appear inevitable then to conclude that the death of two men at work asphyxiated by gas escaping into the atmosphere, necessarily demonstrated that the employer had failed to ensure their safety. Although the terms of the section are wide, in conformity with generally applicable principles of criminal law, the prosecutor is required to make known with precision the charge that is brought against the defendant and in the present case this was done by the terms of the summons and the particulars which I have already set out [viz, failure to supervise]. Mr Stitt QC for the defendant argues that as the prosecutor has elected to rely upon a breach particularised as failure to provide supervision necessary to ensure adherence to the system laid down by the employer it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety. Mr Stitt's approach is in principle correct but on the evidence in the present case I am satisfied that sufficient causal nexus is to be found in the circumstances that Mr Davey was required to supervise Mr Marjanovic, in which duty he manifestly failed. I reject the contention advanced on behalf of the prosecutor that he is entitled to rely upon an inference that the employer was in breach of duty to maintain the prescribed system of work by some means, exactly what in the practical sense was not particularized of enforcing compliance with the procedures laid down. The company did enforce maintenance of the system of work and the way it did it was to require a senior regulator to work on a one-man job in tandem with a second man.

[297]

This consideration is carefully explained in the decision of the Full Court of the then Industrial Court of NSW in Haynes . Commenting on the reasoning of the trial judge, their Honours said (at 156-157): The commencing point of her Honour's consideration of the evidence was the uncontroverted fact that the death of Mr Chen was caused by the front end loader hitting him as it came to a stop over the pit in which he was working removing the slurry. Her Honour then, correctly in our view, commented that "the occurrence of the accident itself does not however establish the commission of the alleged offence": see Dawson (at 120-121) and McMartin v The Broken Hill Proprietary Company Ltd (unreported, Grove J, 5 February 1988, pp 7-8). But, her Honour then concluded, concerning the case against Manufacturing, that "(i)t needs to be established that some action taken by (Manufacturing), or the failure to take some action, was causally connected with the front end loader hitting Mr Chen. It seems to (her Honour) that to approach the question of the commission of the offence in any other way, would be to remove the requirement placed upon the Prosecution to establish, beyond reasonable doubt, that it was the Defendant which failed to `ensure the health, safety and welfare at work' of Mr Chen and Mr Ding. The prosecution of Industrial was considered by her Honour according to "(m)any of the comments ... made in relation to the prosecution against Manufacturing"; again, a causal connection between some act or omission by Industries and the accident was found to be necessary. Her Honour focused attention on the accident itself, that is the front end loader hitting Mr Chen, as the relevant detriment to safety with which the respondent were charged. We think that approach emphasised too much the accident itself as the relevant detriment to safety of persons on the site. That overemphasis led to a misunderstanding by her Honour of the real facts disclosed by the circumstantial evidence and the proper inferences to be objective drawn therefrom. Section 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title, indicates, has the prime purpose "(t)o ensure the health, safety and welfare of persons at work" and that state purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident.

[309]

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; (c) the Company had never asked Mr Palmer to conduct a risk assessment in relation to 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.

WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor

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Judgment (327 paragraphs)

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Legislation Cited (1)

Cases Cited (35)

Cited By (22)