A significant recent decision by the WA Court of Appeal has overturned an earlier decision of the Supreme Court, which potentially expanded the scope of the duty of employers under the Occupational Safety and Health Act 1984 (WA) (OSH Act), and by implication, the Mines Safety and Inspection Act 1994 (WA) (MSI Act). The case related to the events in March 2007 when Cyclone George destroyed a temporary rail construction camp in the Pilbara region of WA, and led to the death and serious injury of several workers.

The Court of Appeal decision provides clarity to employers on the scope and extent of their duty of care to provide and maintain a safe working environment for their employees.

Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117

The Court of Appeal (consisting of Martin CJ, Murphy JA, and Mazza J) overturned a decision of Murray J (Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194) that convicted Laing O'Rourke (BMC) Pty Ltd (LOR) of contravening the OSH Act on the basis that LOR failed to discharge the non-delegable duty imposed on it by section 19 of the OSH Act.

The facts and a summary of Murray J's decision are set out in our previous article. In essence, Murray J had found that LOR had breached its duty by failing to carry out its own inquiries and investigations, including by obtaining engineering advice, into the design and fabrication of the dongas for the purpose of assessing their suitability for cyclonic conditions. Murray J entered judgments of conviction against LOR and imposed a fine of $90,000 (which was 15% of the maximum allowable under the OSH Act).

The decision of the Court of Appeal

  • The Court of Appeal found that Murray J (in finding that an inspection of the dongas was required by LOR, or a structural engineer instructed by LOR) had ascribed to the duty of care under the OSH Act a requirement that went beyond what was reasonably practicable.
  • The Court of Appeal considered that it was not reasonable to expect an employer to retain the services of a structural engineer to inspect residential premises provided by a principal mining company before its employees occupied them. In doing so, it also held that it was reasonable for LOR to assume the buildings were constructed to the required standards when the designs had been approved by the shire and its principal (iron ore miner Fortescue Metals) had engaged a reputable builder to install the buildings.
  • Further, the Court of Appeal found that there was no evidence that, had LOR or an engineer conducted an investigation, it would discovered the various deficiencies with the foundations (or would even have been granted access to conduct an investigation) in any event. Therefore, the prosecution had not establish any measures or means by which it could be said that it was practicable for LOR to ascertain, including by obtaining engineering advice, that the dongas were not properly designed and built to withstand the relevant cyclonic conditions.
  • The Court of Appeal allowed LOR's appeal, overturned Murray J's decision, and acquitted LOR on all charges.

The decision of the Court of Appeal provides clarity on the scope of the duty of care under the OSH Act (and, by implication, the MSI Act) and has reversed Murray J's decision, which likely would have had far-reaching consequences for employers involved in projects in remote locations, particularly when they supply residential accommodation to their employees. If allowed to stand, the decision would in effect have imposed an absolute liability on employers in these circumstances.

© DLA Phillips Fox

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 www.dlaphillipsfox.com

This information is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper is not responsible for any actions taken or not taken on the basis of this information. Please refer to the full terms and conditions on our website.