Supervision of safe work

A leading High Court case on the extent of the duty to supervise is Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales. The High Court heard an appeal by Mr Kirk, a farmer and director of an entity called Kirk Holdings that owned a farm in Picton, NSW.

Kirk Holdings employed a small number of workers including a good friend of Mr Kirk called Mr Palmer.

Mr Palmer was an experienced property manager who was killed while driving an all-terrain vehicle on the farm when he drove directly down a sharp incline rather than using an available and safe private road.

WorkCover (now called SafeWork NSW) investigated and commenced a prosecution, alleging that Kirk Holdings and Mr Kirk, as a director, had failed to take all reasonably practicable steps to ensure the health and safety of Mr Palmer.

On appeal, the Court overturned the conviction of Mr Kirk and Kirk Holdings.

The Court held that constant surveillance of workers’ work activities, particularly an experienced farm manager such as Mr Palmer, was impossible and not an obligation on directors.

The Court also noted that while an employer had to foresee reasonable actions of workers (and to some extent disobedient activities), it criticised imposing too harsh an obligation on a business to ensure supervision of reckless worker conduct.