Hobby farmer succeeds in High Court OHS appeal

The High Court has granted the appeal of a New South Wales hobby farmer against his criminal conviction and $121 000 fine under NSW occupational health and safety law.

As we predicted in the October issue of the Adviser last year, a successful appeal has called into question the entire line of judicial authority on an employers duty of care under the NSW law.

Background

The hobby farmer was the director of a company that owned a farm near Picton, New South Wales. He didn't take an active part in the running of the farm and had no farming experience.

The day-to-day operation of the farm was left to his highly experienced and long-term farm manager. The manager was driving an all terrain vehicle (ATV) to deliver lengths of steel to fencing contractors when he left a formed road and drove down the side of a hill. There was no track on the steep slope and the ATV overturned and the manager was killed. It was unnecessary for the manager to take that route given the existence of a road and nobody knew why he chose to drive down that side of the hill.

The farmer and the company were charged with breaching the NSW OHS law* for failing to ensure the health, safety and welfare of an employee. Both the manager and the company defended the charges up to the appellate level of the NSW Industrial Court, arguing that it was unforeseeable that the manager would attach the steel to the ATV, when there were specific warnings against it and drive off-road down a steep hillside when there was a formed road available.

However, the farmer and the company were found to be liable because they had failed to adequately meet their obligations under the Act.

In the transcripts that we obtained from the hearing late last year, one of the the seven High Court judges commented on the claim of a failure to supervise:

Well, it is ridiculous, is it not? It is totally alien to ordinary life. It is expecting the managing directors ... of large companies which operate all over Australia and all over the world apparently [to] have to supervise the daily activities of the employees.

AFEI's response

In response to the High Court decision quashing the conviction, AFEI Chief Executive Garry Brack has called for a Royal Commission into the NSW OHS laws. The finding that the prosecutor failed to identify the particular risk that existed and the action that the farmer should have taken to remove the risk, created a jurisdictional failure. The farmer was left with the impossible task of trying to defend unstated alleged breaches.

We believe that many other cases decided on this basis need to be reviewed and the large fines paid by employers overturned.

See the AFEI media release on the High Court decision.

See the full decision.

*This case was decided under the 1983 Act, however the relevant sections are similar to the current 2000 Act.