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  WASCA
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  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
The facts and a summary of Murray J's decision are set out
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
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
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.
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