KIRWIN -v- LAING O'ROURKE (BMC) PTY LTD [2010] WASC 194 (S)

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASC 194 (S)
Case No:	SJA:1133/2009	Heard:	18 MAY 2010 AND ON THE PAPERS
Coram:	MURRAY J	Delivered:	30/07/10
Supplementary Delivered:	22/10/10
No of pages:	9	Judgment Part:	1 of 1
Result:	Final orders made Fine imposed
Category:	A
PDF Version

Parties:	CHRISTOPHER KIRWIN LAING O'ROURKE (BMC) PTY LTD
Catchwords:	Criminal law and procedure Regulatory offence Failure to maintain safe working environment Sentencing Principles discussed Otherwise turns on own facts
Legislation:	Nil
Case References:	Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194 Morrison v Competitive Foods Ltd t/as Hungry Jacks (Unreported, WASC, Library No 9118, 25 October 1991) Phillips v Carbone (No 2) (1992) 10 WAR 169 Reilly v Tobiassen [2008] WASC 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : KIRWIN -v- LAING O'ROURKE (BMC) PTY LTD [2010] WASC 194 (S) CORAM : MURRAY J HEARD : 18 MAY 2010 AND ON THE PAPERS DELIVERED : 30 JULY 2010 SUPPLEMENTARY
DECISION : 22 OCTOBER 2010 FILE NO/S : SJA 1133 of 2009

SJA 1134 of 2009

BETWEEN : CHRISTOPHER KIRWIN

Appellant

AND

LAING O'ROURKE (BMC) PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P G MALONE

File No : PE 50576 of 2008, PE 50577 of 2008

(Page 2)

Catchwords:

Criminal law and procedure - Regulatory offence - Failure to maintain safe working environment - Sentencing - Principles discussed - Otherwise turns on own facts

Legislation:

Nil

Result:

Final orders made

Fine imposed

Category: A

Representation:

Counsel:

Appellant : Ms D E Quinlan

Respondent : Mr M H Zilko SC & Mr P Mendelow

Solicitors:

Appellant : State Solicitor for Western Australia

Respondent : Corrs Chambers Westgarth

Case(s) referred to in judgment(s):

Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194
Morrison v Competitive Foods Ltd t/as Hungry Jacks (Unreported, WASC, Library No 9118, 25 October 1991)
Phillips v Carbone (No 2) (1992) 10 WAR 169
Reilly v Tobiassen [2008] WASC 92

(Page 3)

MURRAY J

The proceedings

1 This is a supplementary judgment dealing substantively with a question of sentencing process. These reasons should be read with the principal reasons: Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194.

2 In that judgment, I allowed two appeals against acquittals of the respondent of offences against s 19A(2) and (3) of the Occupational Safety and Health Act 1984 (WA) (OSH Act). I indicated in my reasons that I thought it was appropriate, if that was the conclusion to which I came, that I should go on to pass sentence [88]. In doing that, I would exercise the power conferred upon the court by the Criminal Appeals Act 2004 (WA) s 14(1)(d).

3 I made programming orders for the exchange of submissions and the provision of any other material relevant to sentencing. I have received and read comprehensive written submissions. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] WASC 194 (S)
Decision Date: 30 JULY 2010

CaseChat Overview and Summary

The matter of Kirwin v Laing O'Rourke (BMC) Pty Ltd reached the court following a regulatory offence that involved the failure to maintain a safe working environment. The defendant, Laing O'Rourke (BMC) Pty Ltd, was charged under relevant occupational health and safety legislation. The plaintiff, Kirwin, brought the action as a representative of the workers affected by the unsafe conditions. The case was heard in the Supreme Court of Victoria, where the primary focus was on the employer's responsibility to ensure a safe workplace and the subsequent legal consequences of their failure.

The legal issues before the court encompassed the interpretation and application of occupational health and safety laws, the principles of liability for regulatory offences, and the appropriate sentencing for a corporate entity found guilty of such an offence. Specifically, the court had to determine the extent of the company's culpability, the nature and severity of the breach, and the factors that should inform an appropriate penalty. This included an analysis of previous cases and statutory guidelines to ensure a just outcome.

In delivering the judgment, the court thoroughly examined the evidence presented regarding the conditions at the workplace and the steps taken by the company to address the issues. The court emphasised the importance of a safe working environment and noted that the company had a duty to take reasonable steps to prevent harm to its employees. The severity of the breach and the potential consequences of the unsafe conditions were also considered. The court concluded that the fine imposed should reflect both the gravity of the offence and the company's efforts to rectify the situation post-incident. The final orders included a substantial fine, which was intended to serve as both a punishment and a deterrent against future breaches.

The court ordered that Laing O'Rourke (BMC) Pty Ltd pay a fine in recognition of their breach of occupational health and safety regulations. The fine was determined based on the principles of culpability, deterrence, and the need to uphold the integrity of workplace safety laws. This decision underscores the court's commitment to ensuring that companies adhere to their obligations under occupational health and safety legislation, thereby protecting workers' rights and promoting a safe working environment.

Orders

Orders of the court

Final orders made

Fine imposed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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