The recent District Court decision of Smith v BHP Billiton
Ltd  WADC 21 (BHP) concerned a
contractor's employee who had, entirely on his own initiative,
stood on a stack of tyres to clean a road sign and injured himself.
He subsequently sued the mine owner alleging breach of its duty of
care to provide a safe system of work. The decision turns on its
own facts, but does provide a good illustration of the following
1. A mine owner is generally required, so far as is reasonably
practicable, to provide and maintain a working environment in which
persons, such as a contractor's employee, are not exposed to
2. Whether a mine owner owes a duty of care to a
contractor's employee depends on the mine owner's
activities, the extent to which it remains in control and
occupation of the mine and the relationship between the mine owner
and the contractor as stipulated in any contract.
3. In order to determine whether a contractor's employee is
owed duties arising under section 13 and 15A of the Mines
Safety and Inspection Act 1994 (WA) (Act) and
whether a duty was owed to the contractor's employee by the
mine owner, various factors must be taken into account including
whether a mine owner:
approves health, safety and management plans;
has the authority to conduct audits or inspections;
has the retained power to suspend a contractor's operations
in the event of a breach/non-compliance with the Act;
is a "principal employer" under section 4 of the Act;
whether it sought to benefit from the conduct of mining
operations by the contractor at the mine site (the latter including
factors such as relying on the contractor's expertise in
carrying out mining operations and by again having regard to the
terms of any contract).
4. The duty owed by a principal employer under section 9 of the
Act to take reasonable care to ensure that a contractor's
employees are not exposed to hazards is, at its highest level, the
same as that owed by the contractor to the employee at its own
workplace. However, this duty is tempered with the qualification
that it is discharged by the principal employer doing what is
reasonably practicable in the circumstances.
5. Finally, in determining whether a mine owner has breached its
common law or statutory duty to a contractor's employee, the
mine owner's state of knowledge relating to the particular risk
of injury and the means of mitigating or removing the risk are
further vital factors to be taken into account.
The decision is simply a restatement of the main issues relating
to the duty of care owed by principals to contractors under the Act
and at common law. The decision is also currently the subject of an
appeal. We will comment further after the appeal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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