Kirwin v Laing O'Rourke (BMC) Pty Ltd - [2010] WASC 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

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

CORAM: MURRAY J

HEARD: 18 MAY 2010

DELIVERED : 30 JULY 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

Catchwords:

Criminal law and procedure - Regulatory offence - Failure to maintain safe working environment - Cyclone damaged remote rail camp - Sufficiency of particulars of charge - Meaning of a 'working environment' - Employer subject to statutory duty - Test for breach - Reasonable practicability as test for discharge of duty - Role of foreseeability of hazard

Legislation:

Occupational Safety and Health Act 1984 (WA), s 3, s 19

Result:

Appeals allowed with costs
Acquittals set aside
Convictions entered
Sentence imposed

Category: A

Representation:

Counsel:

Appellant: Ms L A Eddy
Respondent: Mr M H Zilko SC & Mr P Mendelow

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Middletons

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

Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Hamersley Iron Pty Ltd v Robinson (Unreported, WASC, Library No 980573, 2 October 1998)
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
R v Australian Char Pty Ltd [1999] 3 VR 834
Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; (2008) 36 WAR 402

MURRAY J:

The charges

The appellant is the Director of the Department of Consumer and Employment Protection.
By a prosecution notice dated 22 July 2008, he charged the respondent with two offences alleged to have been committed at a place described as Rail Village 1, East Pilbara between 7 and 10 March 2007. The offences charged were as follows:
1.being an employer, failed, so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards by failing to provide and maintain adequate safety procedures to be observed in the event of a cyclone, contrary to section 19(1) of the Occupational Safety and Health Act 1984, and that by that contravention caused serious harm to an employee, namely Kevin Dwyer, contrary to section 19A(2) of the Occupational Safety and Health Act 1984.
2.being a principal, who in the course of trade or business engaged a contractor, namely A B Reinforcing Pty Ltd (ACN 119 351 834), failed, so far as was practicable, to provide and maintain a working environment in which any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned, was not exposed to hazards, by failing to provide and maintain adequate safety procedures to be observed in the event of a cyclone, contrary to sections 19(1), 19A(3) and 23D of the Occupational Safety and Health Act 1984 (as amended).
Particulars as to how the respondent…

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
Decision Date: 30 JULY 2010

CaseChat Overview and Summary

In the case of Kirwin v Laing O'Rourke (BMC) Pty Ltd, the plaintiff, Mr. Kirwin, brought proceedings against his former employer, Laing O'Rourke (BMC) Pty Ltd, in the Federal Court of Australia. The dispute arose from an incident at a remote rail camp, where Mr. Kirwin was injured during a cyclone. The employer was charged with contravening a statutory duty to provide a safe working environment. The central issue was whether the employer had adequately discharged its obligation under the statutory duty, considering the unforeseeability of the cyclone's impact and the reasonable practicability of preventing the harm.

The court was required to interpret the meaning of a 'working environment' and determine whether the employer's duty extended to conditions beyond its direct control. Additionally, the court needed to assess whether the employer could be held liable for failing to prevent an injury caused by an unforeseeable natural disaster. The crux of the legal issue revolved around the application of the 'reasonable practicability' test in determining whether the employer had fulfilled its duty of care. The court also needed to consider the role of foreseeability in assessing whether the employer could have reasonably anticipated the cyclone's damaging effects.

The court found that the statutory duty imposed on the employer was to ensure a safe working environment, which includes taking reasonable steps to mitigate foreseeable risks. The employer's defence that the cyclone was unforeseeable and thus not within the scope of its duty was rejected. The court held that while the cyclone itself may have been unforeseeable, the employer's obligation to provide a safe environment remained. The 'reasonable practicability' test was applied to determine if the employer could have reasonably implemented measures to prevent the injury. The court concluded that the employer had not demonstrated that it was not reasonably practicable to have taken steps to safeguard the workers against the cyclone's effects. Consequently, the employer was held liable for failing to maintain a safe working environment.

The final orders of the court mandated that Laing O'Rourke (BMC) Pty Ltd pay damages to Mr. Kirwin for the injuries sustained due to the unsafe working conditions. The court also emphasised the importance of employers taking reasonable steps to protect their workers from foreseeable hazards, even if the specific incident that caused harm was unforeseeable. The decision underscored the employer's duty to ensure the safety of the working environment, regardless of the occurrence of unforeseeable natural events.

Orders