In an important decision handed down by the WA Magistrates Court
on Friday 18 February 2011, Fortescue Metals Group
(FMG) and its wholly owned subsidiary, The Pilbara
Infrastructure Pty Ltd (TPI), was acquitted of 18
alleged breaches of the Occupational Safety and Health Act
1984 (WA) (OSH Act). The alleged breaches
stemmed from the tragic events on 9 March 2007, when Tropical
Cyclone George struck a temporary accommodation village in the
Pilbara region of WA, causing the deaths of two workers and serious
harm to a number of others.
DLA Phillips Fox represented FMG and TPI and successfully argued
on their behalf that they had reasonably relied upon the expertise
of its contractor, Spunbrood Pty Ltd trading as NT Link (NT
Link), which had been engaged to supply and install the
temporary accommodation village, known as 'RV1'. RV1 was
used by workers engaged in the construction of the railroad between
Cloudbreak Mine and Port Hedland.
The result provides some reassurance to companies that they have
likely reasonably discharged their duties under the OSH Act (or, by
analogy, similar safety legislation) if they engage specialist
the task the contractor has been engaged to perform falls
within the contractor's area of expertise and outside that of
the principal company, and
the task reasonably appears to the principal company to have
been carefully and safely performed by the contractor.
In those circumstances it is unlikely to be apparent what other
reasonably practicable measures could have been taken by the
principal company to prevent an accident.
The successful outcome in this case for FMG and TPI highlights
the importance of:
having properly drafted conditions of contract which clearly
set out the obligations of contractors in relation to matters
implementing an effective incident response plan to be used in
the event of an incident
obtaining legal advice as soon as possible after an incident to
assist with the company's legal response to the incident and
its interaction with the regulator (eg WorkSafe) during any
engaging appropriate experts at an early stage in response to
an incident so that in the event prosecutions are instituted the
company has a well-informed group of experts who can provide
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
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