10 Dec 2015

WHS prosecutions: More particulars please!

by Hilary Searing

When defending alleged contraventions of WHS legislation, employers should ensure that any complaint against them meets the Kirk threshold.

A prosecution of alleged breaches of workplace health and safety (WHS) requirements must identify what measures an employer/operator could have taken but did not take. This will place employers (and company officers) in a better position to establish a defence.

The Kirk test, as established in the High Court decision of Kirk v Industrial Court of NSW (2010) 239 CLR 531, provided useful clarity as to the degree of particularity of the charges which must be provided by a Regulator in a WHS prosecution.

For some time since Kirk, prosecutors have grappled with the necessary level of detail required in a charge. A recent Queensland District Court decision of Archer v Simon Transport Pty Ltd [2015] QDC 263 however has quashed a Regulator' complaint for failing to identify how an employer's procedures were inadequate and reaffirms the need for prosecuting authorities to sufficiently identify the nature of the offence and how the work procedures, risk assessments or safety standard fell short of the expected standard.

Kirk's test

In Kirk's case, an employee of Mr Kirk was killed in a quad bike accident while working as a farm manager on a farm owned by Mr Kirk's company. Subsequently, both the company and Mr Kirk were charged for failing to ensure the health, safety and welfare of its employees under the Occupational Health and Safety Act 1983 (NSW).

The High Court found that the complaint failed to identify any acts or omissions which founded the charges nor mention the steps that Kirk should have taken to avoid exposing the worker to any risk of injury.

In light of the information defects in the complaint, the High Court reasoned that the charges could not properly be defended as the defendants could not have known "what measures they were required to prove were not reasonably practicable."

What arose from Kirk was a test which raised the level of particularisation required in making a complaint, with prosecutors now having to specify the factual basis of all matters necessary to constitute a charge, including the specific measures an employer should have taken and didn't.

Simon Transport: the complaint

In Simon Transport, the Queensland WHS Regulator alleged that Simon Transport, a freight transportation business, breached its statutory duty of care when a worker was injured while unloading one of its trucks at a customer's work premises.

In its complaint, the Regulator specified that Simon Transport failed to ensure, so far as was reasonably practicable, the health and safety of its worker by failing to:

  • develop and implement adequate work procedures to manage the hazards for sole transport drivers;
  • develop safe work procedures for the unloading of bulk rolls of electrical cable at a client's premises;
  • undertake any, or any adequate, risk assessment for this unloading in accordance with the Code of Practice How to Manage Work Health and Safety Risks 2011;
  • develop any , or any adequate safe systems of work in accordance with the Plant Code of Practice 2005; and
  • provide a standard of work health and safety which was the same or higher than the relevant Codes.

It further stated that Simon Transport could have implemented a number of control measures to prevent the situation, essentially by repeating the allegations listed in the paragraph above.

In May 2015, the Magistrate's Court struck out the Regulator's complaint against Simon Transport because it failed to sufficiently set out the legal nature of the offence and its essential factual ingredients. The Regulator appealed the decision.

The Regulator's complaint was not specific enough

District Court Judge Koppenol held that the Regulator's complaint clearly failed the Kirk test and was therefore invalid.

He noted that the regulator's complaint against Simon Transport was insufficient because it just recited the alleged failures rather than identifying how the relevant work procedures, standards and systems fell short of what was alleged to have been reasonably practicable.

Judge Koppenol also said that the specified control measures did not "cure those deficiencies or provide any meaningful particularisation" and instead served to repeat the alleged failures listed in the complaint.

This reaffirms the need for prosecuting authorities to sufficiently identify the nature of the offence and how the employer fell short of the expected standard and will allow employers to be in a better decision to defend these matters by knowing exactly where it is alleged they fell down in their duty of care. The employer can then attempt to satisfy the Court that it was not reasonably practicable to take the identified measure in question, as opposed to having to establish that there were no reasonably practicable measures of any kind which could have addressed the risk (as has previously been necessary with the way that complaints were framed).

Checklist for employers

When defending alleged contraventions of WHS legislation, employers should ensure that any complaint against them meets the Kirk threshold. Justice Martin usefully set out the requirements for a valid complaint in the Queensland Industrial Court decision of Coggins v Steelcon Carva Pty Ltd [2014] ICQ 22 and employers should bear these in mind:

  • a defendant is entitled to be told not only of the legal nature of the offence which is charged, but also of the particular act, matter or thing alleged as the foundation of the charge;
  • the complaint must inform the court of the particular offence with which it is required to deal and provide the accused with the substance of the charge which he or she is called upon to meet;
  • the charge “must at least condescend to identifying the essential factual ingredients of the actual offence”;
  • a complaint must specify “the time, place and manner of the defendant’s acts or omissions”;
  • the complaint must identify the measures which should have been taken. If there is or was a risk, the question is: what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge; and
  • where it is alleged that a specific statutory provision, or a code, or a guideline or the like has been breached, the relevant provision must be identified.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.