WHS lawThis is not legal opinion on WHS law however to highlight the WHS law issues that have been discussed in 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. He left the daily operation of the farm to Mr Graham Palmer and employed him as the farm manager. In March 2001, Mr Palmer intentionally drove a vehicle owned by the Kirk Group off a formed road and down the side of a hill at the farm. The vehicle overturned and Mr Palmer was killed.

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 defense as, (in part) the Prosecution could not present a reasonably practicable action that should have been implemented to eliminate the incident.

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.

Your thoughts