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Laing O'Rourke (BMC) Pty Ltd v Kirwin

Laing O'Rourke (BMC) Pty Ltd v Kirwin

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Case Copied 17 May 2011 41 min read

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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
Tobiassen v Reilly [2009] WASCA 26; (2009) 178 IR 213
Wylie v South Metropolitan College of TAFE [2003] WASCA 34

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…

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: [2011] WASCA 117
Decision Date: 17 MAY 2011

CaseChat Overview and Summary

The case of Laing O'Rourke (BMC) Pty Ltd v Kirwin involved a dispute over the adequacy of occupational health and safety measures in place during the construction of a building in Western Australia. The case was heard in the District Court of Western Australia. The defendant, Laing O'Rourke, was charged with an offence under section 19(1) of the Occupational Safety and Health Act 1984 (WA), which requires employers to ensure, as far as is practicable, a safe working environment. The prosecution argued that the defendant failed to maintain a safe working environment during a cyclone, leading to unsafe conditions for the workers.

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