The recent District Court decision of Smith v BHP Billiton Ltd [2012] 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 principles:

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 hazards.

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; and
  • 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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