Construction sites can be filled with a variety of contractors
undertaking many different tasks. Often, it is unclear who has
control over the work at a site on any given day. For safety
reasons, who has control of a workplace is of critical importance
as persons with control, not just employers, can be held liable
under the Occupational Safety and Health Act 1984 (WA).
The recent decision of the WA Court of Appeal in Tobiassen v
Reilly  WASCA 26 has shed some light on the issue of
control under the Act.
The case relates to a fatal accident that occurred at a
construction site in WA in 2002, where a man died after a tilt-up
concrete panel he was erecting collapsed on him. The construction
site was owned by Glenpoint Nominees Pty Ltd who engaged Devcon
Australia Pty Ltd as Project Manager. The deceased was a rigging
subcontractor engaged by Devcon.
Mr Tobiassen was appointed by Devcon as the "registered
builder" to manage and supervise the building work for the
project in accordance with plans. WorkSafe alleged he breached his
duty of care under the Act as a person with control of a workplace
as well as breaching provisions of the Occupational Safety and
Health Regulations 1996 (WA).
At first instance, all charges against Mr Tobiassen were
dismissed as it was held that he did not have the requisite level
of knowledge about tilt panel construction or the requisite level
of control over the rigging subcontractor's work.
On appeal to the Supreme Court of Western Australia, Justice
Heenan overturned this decision, finding that the terms of Mr
Tobiassen's contract with Devcon and his actions on site were
evidence of his control at the time of the incident, and that, as a
person in control of the workplace, it was practicable for Mr
Tobiassen to have educated himself on the risks involved in
installing tilt-up panels, even though he had limited experience as
a rigger. Mr Tobiassen was fined $35,000.
The Western Australian Court of Appeal overturned the
convictions, considering that placing an obligation on Mr Tobiassen
to take measures to ensure safety in respect of risks he could not
reasonably be expected to know to be an "unreasonable
burden". The Court of Appeal said:
"where reliance is placed
upon a specialist contractor to perform a task which demonstrably
falls within its area of expertise and outside that of the
responsible person, and if the task reasonably appears to the
responsible person ... to be carefully and safely performed by the
specialist contractor, it would ordinarily be difficult to conclude
that the responsible person had breached the duty upon
However, the Court of Appeal did find that Mr Tobiassen had
control of the workplace, even though he did not have control of
the work relating to the tilt-up panels, as he had overall
management over the building work on site. This affirms the
long-standing position that control of a workplace under the Act
does not rest with only one person at a fixed point in time.
This case is an important reminder that throughout Australia
greater attention must be paid to managing contractors on
construction sites at ground level, not just relying on contractual
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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