This is not legal opinion on the implications of Kirks Law, but a discussion to highlight the WHS law issues that have been brought before the courts.
Kirk Group Holdings Pty Ltd was the owner of a farm in NSW. Mr. Kirk the director of the company took no active role in running the farm as he lacked farming experience and was in poor health. On 28 March 2001, the farm manager towed 3 lengths of heavy steel attached to the rack of the ATV, rather than the tow bar. He travelled down a steep hillside “cutting the corner” of a formed, graded road to deliver steel to a fencing contractor who was working in another field. The ATV rolled and the farm manager was killed.
WorkCover inspectors investigated the incident and instituted proceedings against Kirk Holdings and Graeme Kirk in his capacity as Managing Director of Kirk Holdings. WorkCover NSW prosecuted Kirk for failing in his duties however lost on appeal. Arguments in WHS law determined (in essence) that Kirk was not provided with an avenue for defence. Where, (in part) the Prosecution could not present a reasonably practicable action that should have been implemented to eliminate the incident.
Implications of Kirks Law
From this case (now called Kirk’s Law) the PCBU and Officers may argue, where appropriate, that it is not reasonably practicable to comply with health and safety obligations. The allegations of breaches against them must be fully identified by the prosecutor in any prosecution under the Safety Legislation. The onus, however, will remain on the PCBU and Officers to demonstrate why compliance is not reasonably practicable.
The Work Health and Safety Officer course (WHSO) includes discussions on the WHS the legislation and references to cases that have the heavily influenced the Model WHS Legislation along with numerous other safety related topics.
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