Kirk Test Rejected by Court

Articles

Kirk Test Rejected by Court

02/08/2016

Essentially the Kirk High Court decision requires workplace safety prosecution briefs to particularise not only what they allege the duty holder did wrong, but also to detail what they reasonably could have done in those circumstances e.g. what was reasonably practicable at the time.

This case involved an accident where a truck driver at a customer’s premises was injured when a two- tonne roll of electrical cable fell from a forklift and struck him, causing leg fractures.

The company, Simon Transport Pty Ltd argued that the prosecution failed to adequately detail what they could have done to prevent the incident, as they did not have control of the site or the forklift operation, and therefore relied upon the earlier Kirk High Court decision to have the charges dismissed.

The Kirk High Court precedent was accepted in the Magistrates Court and the District Court, but the decision was recently over turned (June 2016) in the Superior Court in Queensland.

WorkSafe Queensland alleged Simon Transport:

  • Failed to develop adequate safe work procedures for unloading bulk freight at client premises;
  • Failed to undertake a risk assessment for the task in accordance with the relevant Code of Practice;
  • Failed to provide standards equivalent to or higher than those outlined in the relevant Codes; and
  • Failed to ensure the driver remained outside the forklift exclusion zone during unloading.
  • This case rejects the notion that if you have workers at a client’s workplace that you are not liable or unable to take steps to ensure their safety.

    If you have employees working off site and have not conducted a risk assessment and implemented appropriate procedures and training (with periodic auditing) then you are vulnerable.

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