JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAING O'ROURKE (BMC) PTY LTD -v- KIRWIN [2011] WASCA 117
CORAM: MARTIN CJ
MURPHY JA
MAZZA J
HEARD: 9 MARCH 2011
DELIVERED : 17 MAY 2011
FILE NO/S: CACR 128 of 2010
CACR 195 of 2010
BETWEEN: LAING O'ROURKE (BMC) PTY LTD
Appellant
AND
CHRISTOPHER KIRWIN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY J
Citation :KIRWIN -v- LAING O'ROURKE (BMC) PTY LTD [2010] WASC 194
File No :SJA 1133 of 2009, SJA 1134 of 2009
Catchwords:
Occupational health and safety - Occupational Safety and Health Act 1984 (WA), s 19(1) - Cyclone - Whether employer so far as was practicable maintained a safe working environment - Need to prove each element of offence with evidence - Whether reasons adequate - Turns on own facts
Legislation:
Occupational Safety and Health Act 1984 (WA), s 19(1)
Result:
Appeals allowed
Convictions set aside
Acquittals entered
Category: B
Representation:
Counsel:
Appellant: Mr M H Zilko SC & Mr P Mendelow
Respondent: Mr G T W Tannin SC & Mr B P King
Solicitors:
Appellant: Corrs Chambers Westgarth - Sydney
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ball & Sons Pty Ltd v Stewart (Unreported, WASC, Library No 8829, 24 April 1991)
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249
Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998)
Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100, 108
Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194
Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194 (S)
MacCarron v Future Engineering & Communication Pty Ltd (Unreported, WASC, Library No 980350, 23 June 1998)
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
R v Associated Octel Ltd [1994] 4 All ER 1051
Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; (2008) 36 WAR 492
Shepherd v Co‑Operative Bulk Handling Ltd [2001] WASCA 413
Silent Vector Pty Ltd v Shepherd [2003] WASCA 315
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
MARTIN CJ: I agree with Murphy JA that these appeals should be allowed, for the reasons he gives. However, I wish to add some observations of my own.
The judge accepted all findings of fact made by the magistrate. Those findings included the finding that the camp in which the appellant's employees were housed was constructed by contractors who were apparently competent, diligent and experienced. Further, the camp was constructed in a regulatory environment aimed at…
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- Case
- [2011] WASCA 117
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide included whether the employer had fulfilled its obligations under the Act and whether the reasons provided for the unsafe conditions were adequate. The court also had to determine whether the prosecution had proved each element of the offence with evidence. The court considered the specific circumstances of the case, including the severity of the cyclone and the measures taken by the employer to mitigate the risks.
The court held that the prosecution had not proved each element of the offence with evidence. It found that the reasons provided by the employer for the unsafe conditions were adequate in the circumstances. The court emphasised that the standard of care required under the Act is one of reasonableness, and the employer had taken reasonable steps to ensure a safe working environment. The court noted that the case turned on its own facts and that the adequacy of the employer's actions had to be assessed in the context of the specific circumstances of the case.
The final orders of the court were that the charge against the defendant was dismissed. The court found that the prosecution had not discharged the onus of proving the offence beyond reasonable doubt. The court emphasised that the decision was based on the specific facts of the case and that it did not set a precedent for other cases. The defendant was therefore acquitted of the charge.
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
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Ratio Decidendi
Legal Principle Established
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