JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KIRWIN -v- THE PILBARA INFRASTRUCTURE PTY LTD [2012] WASC 99
CORAM: HALL J
HEARD: 17 - 21 OCTOBER 2011
DELIVERED : 23 MARCH 2012
FILE NO/S: SJA 1030 of 2011
BETWEEN: CHRISTOPHER KIRWIN
Appellant
AND
THE PILBARA INFRASTRUCTURE PTY LTD
Respondent
FILE NO/S :SJA 1031 of 2011
BETWEEN :CHRISTOPHER KIRWIN
Appellant
AND
FORTESCUE METALS GROUP PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G MIGNACCA-RANDAZZO
Citation :PE 50531 to 50547 of 2008 and PE 50575 of 2008
Catchwords:
Occupational health and safety - Duties of employers and principals - Duty to do all that is 'reasonably practicable' - Whether deemed employer breached duty - Whether reliance on expertise of others was sufficient discharge of duty - Accommodation not built to withstand cyclone
Legislation:
Occupational Safety and Health Act 1984 (WA), s 3, s 3A, s 5, s 19(1), s 19A, s 23D, s 23G(2), s 23H(2)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
SJA 1030 of 2011
Counsel:
Appellant: Mr B P King & Ms K A T Pedersen
Respondent: Mr J H Karkar QC, Mr R J Price & Mr R PintosLopez
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: DLA Piper Australia
SJA 1031 of 2011
Counsel:
Appellant: Mr B P King & Ms K A T Pedersen
Respondent: Mr J H Karkar QC, Mr R J Price & Mr R PintosLopez
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: DLA Piper Australia
Case(s) referred to in judgment(s):
Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249
Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199
Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998)
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Morrison v De Bono [2005] WASC 271
R v Associated Octel Co Ltd [1994] 4 All ER 1051
Reilly v Devcon Australia Pty Ltd [2007] WASC 106
Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; (2008) 36 WAR 492
Silent Vector Pty Ltd v Shepherd [2003] WASCA 315
HALL J:
Introduction
In the early hours of 9 March 2007 severe tropical cyclone George hit a railway camp in the East Pilbara, south of Port Hedland. The estimated wind gusts were 47 to 50 m per second. Workers at the camp took shelter in the pre‑fabricated accommodation buildings, known as dongas.
The winds caused some of the dongas to lift and pull away from their footings. Some dongas collided with each other and others flipped over. As a consequence, a number of the workers were injured, including some fatally.
An investigation after the event revealed that the dongas and the means by which they…
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- Case
- [2012] WASC 99
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the defendant's reliance on the expertise of others was sufficient to discharge its duty to ensure safety, and if the accommodation provided was built to withstand cyclones. The court had to interpret the meaning of 'reasonably practicable' under occupational health and safety legislation and assess the adequacy of the defendant's measures in ensuring workplace safety. The court also needed to determine the appropriate legal costs under the Legal Profession Act 2008 (WA) for the unsuccessful appeal.
In its reasoning, the court found that the defendant's reliance on the expertise of others did not absolve it of its duty to ensure safety. The court held that the defendant had a responsibility to verify the adequacy of safety measures independently. Furthermore, the accommodation provided was not built to withstand cyclones, which constituted a breach of the defendant's duty. The court also considered the applicable legal costs under the Legal Profession Act 2008 (WA), determining that the plaintiff was entitled to costs under the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010 (WA). The court emphasised that the defendant's reliance on others did not absolve it of its primary duty to ensure safety and ordered the defendant to pay the plaintiff's legal costs.
Orders
Orders of the court
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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
Section 4(2) defines the circumstances in which an accused person is successful. These are where the accused is acquitted or discharged, where the charge is dismissed for want of prosecution, and where a conviction is set aside on appeal. In the present case none of those outcomes occurred 'by reason of a decision of the appeal court'. Rather, what occurred was that the respondents were successful in the Magistrates Court by reason of being acquitted in that court and that decision was not affected by the appeal. In these circumstances there could be an argument that in a case such as this; that is, where a prosecution appeal against an acquittal has failed, that the respondent is not a 'successful accused' in the appeal court for the purposes of s 5. See Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140(S). That is not a contention dealt with by the parties in their submissions and the appellant has not sought to raise it. Both parties have proceeded upon the assumption that s 5(3) covers the present circumstances. While that position is not free from doubt, I will proceed upon the same basis. That is because it is at least arguable that the definition in s 4(2) is not intended to be exhaustive and that the ordinary meaning of the words used in s 5(3) would cover a respondent to an unsuccessful prosecution appeal. If it did not then it would seem to have little purpose given that s 5(4) covers circumstances where an accused is successful by reason of an appeal court reversing a decision of the summary court. Furthermore, it is difficult to see why such circumstances would be excluded from the ambit of the Act. Section 5(5) provides that the amount of costs ordered shall be in accordance with the scale fixed from time to time by a costs determination as defined in the Legal Profession Act 2008 (WA), s 252. Section 275 of the Legal Profession Act provides that the Legal Costs Committee may make legal costs determinations. The relevant determination here is the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010 (WA) (the Accused's Costs Determination). Clause 6 of that determination provides as follows:6.Scale of costsSubject to clause 7, the costs recoverable by a successful accused in an official prosecution (inclusive of counsel fees but exclusive of other disbursements) shall not exceed the amounts set out in the Table to this clause. Item 8 of the table provides that the maximum time and amounts permissible in respect of appeals are as per the rates specified in item 23 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (the Contentious Business Determination). Clause 7 of the Accused's Costs Determination provides as follows:7.Complex matters, and matters involving a high degree of skill or urgency or require Senior Counsel(1)Where a matter is complex, or involves a high degree of skill or urgency or requires Senior Counsel, notwithstanding the rates or scale set out in the Tables to this Determination, the accused is entitled to recover a fee that is greater than the one that is set out in this Determination, if it is reasonable in the circumstances.(2)Work undertaken by Senior Counsel shall be allowable in accordance with the rates in the Table to clause 5 of this Determination.