Following the Kirk decision handed down in early February1, the Industrial Court has witnessed hearings in another case seeking to alter the accepted principles of Occupational Health and Safety prosecutions in NSW.
On Thursday 8 April 2010, the full bench was summoned to hear Morrison v Graham Anthony Chevalley; Morrison v Hilton Ross Grugeon. In this case, which looks at the liability of directors in Occupational Health and Safety matters, the court lays out a number of applicable principles in light of the Kirk decision.
In August, the court decided that Hunter Quarries director and chairman, Hilton Grugeon, and managing director, Grahame Chevalley, had failed in their attempt to have their charges over the death of truck driver Darren Smith quashed by the court.
Smith, a father of two, was killed when his truck drove over an embankment and rolled over at a Karuah quarry in June 2005.
The prosecution alleged that Hunter Quarries had failed to ensure the road and truck were safe, and had also failed to provide proper training, supervision and a safe system of work for its employees.
In Kirk the High Court found that prosecutors had to specify exactly what measures an employer should have taken to avoid the risk of an accident.
Despite the prosecution's failure to provide measures by which the directors could have avoided the risk of an accident, the Industrial Court ruled that once Hunter Quarries had pleaded guilty, Mr Grugeon and Mr Chevalley, as directors, could be taken to have breached the law.
They laid out a number of principles relevant to the application of the law in matters such as these:
- Provision 26 reverses the onus of proof, which would otherwise rest on the prosecution of proving that a defendant who is a director of the corporation did not use all due diligence to prevent the contravention by the corporation
- There is no basis upon which to draw a distinction between the offences committed by the director or person concerned in the management of the corporation and the offences committed by the corporation
- The director must be deemed to be a party because of his or her complicity in the offence. It cannot impose liability for an offence which was really committed by the corporation and is only 'taken' to have been committed by the director.
The court also rejected the argument that the reversal of the onus of proof offended the judicial process by presuming a person guilty before proven as such.
While the case of Kirk was a strong win for directors, the decision of Morrison v Graham Anthony Chevalley; Morrison v Hilton Ross Grugeon clearly recognises the current requirement of New South Wales Occupational Health and Safety legislation – Directors of companies must be vigilant about safe work practices.
1 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Limited v WorkCover Authority of New South Wales (Inspector Childs) [2010]
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