Laing O'Rourke (BMC) Pty Ltd v Kirwin - [2011] WASCA 117

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 ensuring that all buildings constructed in cyclone prone areas were constructed to a standard commensurate with the applicable degree of risk, in order that the buildings could be reasonably expected to withstand the cyclonic winds to which they were likely to be exposed. There was no reason for the appellant to suppose that the camp might not have been constructed to the applicable standard.
The camp in which the appellant's employees were accommodated was a camp made generally available to all contractors whose staff were working on the construction project. It was a fair inference from the evidence that different contractors would accommodate differing numbers of staff in that camp for differing periods. The dongas in which those staff would be accommodated would not be known to such contractors in advance, but would be allocated from time to time depending upon availability.
In those circumstances, the effect of the judge's conclusion was that every contractor whose employee spent any time in the camp would be obliged to receive engineering advice of an unspecified kind and undertake engineering investigations of an unspecified nature of all the dongas in the camp in order to discharge the statutory obligation imposed by the legislation. Because the camp was not under the control of those contractors, it would be necessary for each contractor to secure the right to conduct such investigations as a condition of the placement of any employee in the camp.
Further, the reasoning of the judge could tend to suggest that every employer placing an employee in any accommodation for any period of time in any area of Australia which is at risk of cyclonic winds would have a similar obligation to take engineering advice of an unspecified kind and undertake engineering investigations of an unspecified nature in respect of every building in which any employee was accommodated. A duty of that kind would be plainly impracticable. The magistrate was correct to hold that the appellant had discharged its obligation to take all

practicable steps to provide and maintain a working environment in which its employees were not exposed to hazards.
MURPHY JA:

Introduction

These appeals concern two charges of failing to provide and maintain a working environment in which the employees of the employer are not exposed to hazards contrary to s 19(1) of the Occupational Safety and Health Act 1984 (WA) (the Act). The charges, which related to procedures to be observed in the event of a cyclone, were tried before Magistrate Malone on 5 to 14 October 2009. The events in question involved the passage of Cyclone George across the Pilbara coast in March 2007. His Honour entered judgments of acquittal on 30 October 2009.
The respondent, the Director of the Department of Consumer and Employment Protection appealed, and, on 30 July 2010, Murray J allowed the appeals, set aside the acquittals and entered judgments of conviction.
The appellant employer now appeals to this court. There is no notice of contention.
For the reasons given below, I would allow the appeals.

Background

The appellant was engaged by Pilbara Infrastructure Pty Ltd (TPI) (a wholly‑owned subsidiary of Fortescue Metals Group Ltd) to undertake track and bridge work in the construction of a railway line between iron ore mining and processing facilities conducted by Fortescue at the Cloudbreak Mine in the Pilbara and port facilities at Port Hedland. The project management team, with responsibility for planning and executing the project, was known as 'Team 45', and comprised TPI and Worley Parsons Services Pty Ltd. Team 45 engaged another company (which traded as NT Link) to construct village facilities known as 'Rail Camp 1'.
Rail Camp 1 consisted of various facilities, but was largely comprised of residential units known as 'dongas'. There were approximately 70 dongas. TPI contracted Spotless P & F Pty Ltd to manage, service and administer the camp. The employees of the appellant and its subcontractors, at the time of the cyclone, occupied a minority of the dongas. The dongas had been allocated to them by Team 45. It was common ground that the appellant had not been responsible for, or in any way associated with, the construction of the facilities at Rail Camp 1.

The village had been built by NT Link following the issue of a building licence for the construction of Rail Camp 1 by the Shire of East Pilbara. The building work was required to be done in accordance with plans and specifications approved by the local authority. As noted below, the plans and specifications submitted to and approved by the local authority contained a significant error. The buildings were supposed to be able to withstand a wind load related to the region and the terrain where the village was located, but the specifications specified an inappropriate wind load.
Rail Camp 1 was located approximately 90 km from the smoothed coastline, in an area of the Pilbara that is notorious for cyclonic activity. There is an Australian Standard incorporated into the relevant building code which divides the area into four wind regions as one proceeds notionally inland from the coast. The wind force which has to be accommodated decreases as one moves further inland. Wind region D stretches 50 km inland from the coast, wind region C is the area between 50 km and 100 km from the coast, wind region B is the area 100 to 150 km from the coast, and wind region A is, in effect, the rest of the country. Notwithstanding that Rail Camp 1 was situated approximately 90 km from the coast in wind region C, the specifications referred to wind region A. To put that matter into perspective, Perth, Adelaide, Melbourne and Sydney are all classed as wind region A. Accordingly, the plans and specifications submitted to and approved by the Shire of East Pilbara were for wind region A, with the result that the dongas were not designed and built to withstand winds of the force required by the Australian Standards for the relevant location.
In addition to the specifications relating to the wrong wind region, the dongas suffered from a number of structural deficiencies in relation to their foundations. Each donga was secured to concrete foundations by steel tie rods that were sunk into the foundations and which were welded to the donga's subframe. Subsequent to the events the subject of these proceedings, it became apparent that the foundation system for the dongas was deficient in that the system of tie rods was ineffective to prevent horizontal movement, the tie rods were fewer, albeit larger in size, than those specified in the plans, some in‑ground concrete foundations (footings) were inadequate, and the quality of the welding to the subframes was, in a number of cases, poor.
Tropical Cyclone George formed on 3 March 2007 in the northern Kimberley region, and moved slowly westwards, reaching the Indian ocean on 5 March 2007. It continued to move westwards until, on the morning of 7 March, it turned abruptly and unexpectedly 90 degrees to the south towards the Pilbara coast. The cyclone began to rapidly intensify and became a severe tropical cyclone (category 3) by 9 pm on 7 March 2007. Warnings were being issued, extending, by 4.15 am on 8 March, to the area which included Rail Camp 1.
Cyclone George continued to intensify as it approached the coast and reached its peak intensity (category 5) just prior to landfall, with a 10‑minute mean wind speed of around 205 km per hour and wind gusts of up to 285 km per hour. It was still at its maximum intensity when it crossed the coast 50 km north‑east of Port Hedland at 10 pm on 8 March 2007.
By then, the Team 45 emergency response coordinator at Rail Camp 1 was aware that a yellow alert had been issued. Worksites were tied down to prevent material becoming airborne, or equipment being damaged, and the work crews returned to Rail Camp 1 between 11 am and 1.30 pm on 8 March 2007.
At approximately 4 pm, a meeting took place at Rail Camp 1 and those present were advised to take sufficient food and water to their dongas and to remain there until the all clear was given. They were also told that a siren would be sounded if and when the red alert was issued. A red alert is a warning issued by the Bureau of Meteorology that destructive winds are likely to occur very soon after the alert is issued. The red alert was issued at about 6 pm on 8 March, and the warning was sounded at the camp.
Cyclone George passed over Rail Camp 1 in the early hours of the morning of 9 March 2007. It was still generating severe cyclonic winds and heavy rain. The majority of the dongas survived intact, as did the appellant's site office near the camp, which had been constructed by the appellant and rated to withstand a category 5 cyclone such as Cyclone George.
Nevertheless, the winds caused the concrete footings of some of the dongas to become dislodged and some of the steel tie rods were pulled free, causing some dongas to lift and pull away from their foundations. Some blew against other dongas. Some were overturned.
A number of people were injured, including Mr Dwyer, an employee of the appellant. His donga was lifted from its footings and he sustained 10 fractured ribs, a punctured lung, fractured vertebrae and dental injuries. Christopher Richards, an employee of one of the appellant's subcontractors, suffered a crush fracture of the body of the 12th thoracic vertebra when his donga also dislodged from its footings and disintegrated.

The charges

The appellant was charged with two offences, namely:
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).
The following particulars were provided:
It is alleged that the Accused failed to provide and maintain adequate safety procedures to be observed in the event of a cyclone in that the Accused:
(a)failed to provide and maintain an adequate cyclone procedure at Rail Village 1 at all material times; and
(b)such a cyclone procedure would have:
(i)provided for evacuation to a safe refuge at Rail Village 1; and/or
(ii)provided for evacuation from Rail Village 1; and
(iii)provided persons employed by the Accused, or persons employed or engaged by a contractor engaged by the Accused, with adequate training in the cyclone procedure.

The statutory duty imposed on the employer

The statutory duty to which the charges relate is found in s 19(1) of the Act which provides:
19.Duties of employers
(1)An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall ‑
(a)provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards; and
(b)provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and
(c)consult and cooperate with safety and health representatives, if any, and other employees at the workplace, regarding occupational safety and health at the workplace; and
(d)where it is not practicable to avoid the presence of hazards at the workplace, provide the employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and
(e)make arrangements for ensuring, so far as is practicable, that ‑
(i)the use, cleaning, maintenance, transportation and disposal of plant; and
(ii)the use, handling, processing, storage, transportation and disposal of substances,
at the workplace is carried out in a manner such that the employees are not exposed to hazards.
(2)In determining the training required to be provided in accordance with subsection (1)(b) regard shall be had to the functions performed by employees and the capacities in which they are employed.
If any employer contravenes s 19(1), the employer commits an offence under s 19A. If the contravention occurs in circumstances of gross negligence, the employer is liable to a fine of up to $500,000 (s 19A(1), s 3A(4)). If the contravention causes the death of, or serious harm to, an employee, the employer is liable to a fine of up to $400,000 (s 19A(2), s 3A(3)). In all other cases, the employer is liable to a fine of up to $200,000 (s 19A(3), s 3A(2)). At trial, the appellant accepted that, if a breach of s 19(1) was made out, one of its employees (Kevin Dwyer) had suffered serious harm for the purpose of s 19A(2).
The term 'working environment' is not defined in the Act. However, the following definition is given for a term 'workplace':
Workplace means a place, whether or not in an aircraft, ship, vehicle, building, or other structure, where employees or self‑employed persons work or are likely to be in the course of their work.
Whether Rail Camp 1, and in particular the dongas, fell within the definition of 'working environment' in s 19(1) was in issue both at trial and on appeal to Murray J. In both instances, the question was answered in the affirmative, although the learned appeal judge took a slightly different approach from the magistrate (reasons [32] ‑ [48]). In any event, the findings of the learned appeal judge are not challenged and the issue does not arise in this appeal.
The word 'hazard' is defined in s 3(1):
hazard, in relation to a person, means anything that may result in ‑
(a)injury to the person; or
(b)harm to the health of the person;
It appears to have been accepted, both at trial and on appeal, that the cyclone passing over Rail Camp 1 was a 'hazard' within the meaning of the Act.
The duty imposed on an employer by s 19(1) is not an absolute duty: Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 251 (Brennan J); Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100, 108, 109 (Wallace J, Rowland J agreeing); Wylie v South Metropolitan College of TAFE [2003] WASCA 34 [45]; Tobiassen v Reilly [2009] WASCA 26; (2009) 178 IR 213 [59]. Important in this regard is the phrase 'so far as is practicable', which qualifies the duty in s 19(1). The words 'practicable' and 'risk' are defined in s 3(1) as follows:
practicable means reasonably practicable having regard, where the context permits, to ‑
(a)the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and
(b)the state of knowledge about ‑
(i)the injury or harm to health referred to in paragraph (a); and
(ii)the risk of that injury or harm to health occurring; and
(iii)means of removing or mitigating the risk or mitigating the potential injury or harm to health;
and
(c)the availability, suitability, and cost of the means referred to in paragraph (b)(iii);
risk, in relation to any injury or harm, means the probability of that injury or harm occurring;
It follows from the definition of 'practicable' that the obligation imposed on an employer by s 19(1) is an obligation to provide and maintain a working environment in which its employees are not exposed to hazards only so far as is reasonably practicable. The words 'reasonably practicable' are ordinary words, bearing their ordinary meaning and simply call for the making of a value judgment in light of all the facts: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304, 322 (Gaudron J). Hindsight may mislead. As Harper J said in Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119, 123 ‑ 124, in relation to the equivalent provision in the Victorian legislation:
The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.

That approach has been adopted in Western Australia: see MacCarron v Future Engineering & Communication Pty Ltd (Unreported, WASC, Library No 980350, 23 June 1998) 11; Shepherd v Co‑Operative Bulk Handling Ltd [2001] WASCA 413 [55].
The 'state of knowledge' relating to, inter alia, the injury, the risk of injury and the means of removing or mitigating the risk, referred to in the definition of 'practicable', is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not merely the actual knowledge in fact possessed by a specific employer in the particular circumstances: Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998) 22; Wylie v South Metropolitan [45]; Silent Vector Pty Ltd v Shepherd [2003] WASCA 315 [12] (although that case concerned s 22 of the Act, the same consideration applies to s 19); Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; (2008) 36 WAR 492 [60].
The word 'risk' appears in the definition of 'practicable' in pars (a) and (b)(ii) and (iii). In s 3 of the Act 'risk' is defined to mean the 'probability' of the relevant injury or harm occurring, which means no more than the 'likelihood' of the injury or harm occurring: Hamersley Iron Pty Ltd v Robertson (18). This will require some consideration of the question of foreseeability: Chugg v Pacific Dunlop Ltd (265); Hamersley Iron Pty Ltd v Robertson (18). That, in turn, involves consideration of whether it is shown that the employer knew, or that a reasonable employer in the position of the employer would have appreciated or foreseen the risk of the injury or harm to health occurring: Wylie v South Metropolitan College of TAFE [45]; Reilly v Devcon [60]; Silent Vector Pty Ltd v Shepherd [11] ‑ [12].
In some cases, the duty to, so far as is practicable, maintain a safe workplace may involve a consideration of matters which are beyond the employer's own area of expertise. Although the employer's duty remains unaltered, the employer's lack of direct control over such matters may affect its knowledge and, in consequence, the question of what was 'reasonably practicable' in the circumstances. This court in Reilly v Devcon [68] quoted with approval Stuart‑Smith LJ's observations in R v Associated Octel Ltd [1994] 4 All ER 1051, 1063:
… the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person - that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor.
But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken …
The question of what is reasonably practicable is a matter of fact and degree in each case.
Steytler J's observations in Hamersley Iron Pty Ltd v Robertson concerning a similar duty imposed by s 9(1) of the Mines Safety and Inspection Act 1994 (WA) are also apposite here: Reilly v Devcon [64]. Steytler J said (20):
Here, the personal duty imposed upon the employer is, as I have said, that of providing a safe workplace, so far as is practicable. If that, in turn, requires the employer to call upon expertise which it does not itself have then there is no reason why it should not do so and, indeed, every reason why it should ... If the task undertaken by the independent contractor is one which demonstrably falls within its area of expertise and outside that of the employer and if the task reasonably appears to the employer ... to have been carefully and safely performed by the independent contractor then it would ordinarily be difficult to conclude that the employer had breached the duty put upon it by the Act. It would not, in circumstances of that kind, ordinarily have been practicable for it to have done more. (emphasis in original)
See also Slivak v Lurgi (319) (Gleeson CJ, Gummow and Hayne JJ).
The prosecution bears the onus of proving a breach of duty in s 19(1), including the question of practicability: Ball & Sons Pty Ltd v Stewart (Unreported, WASC, Library No 8829, 24 April 1991); Chugg v Pacific Dunlop Ltd (260 ‑ 263). A finding of breach cannot be based upon speculation. Each element must be proved by evidence: Interstruct Pty Ltd v Wakelam (110) (Wallace J, Rowland J agreeing); Ball v Stewart.
In Chugg v Pacific Dunlop Ltd (263), Dawson, Toohey and Gaudron JJ said, that where the onus was on the informant (as here):
[T]he issue is confined by the means which the informant claims were practicable in the circumstances.
Similarly, in Ball v Stewart, in relation to a charge of inadequate training, Anderson J said (6 ‑ 7):
It is trite to say that the respondent was required to prove each element of the offence beyond reasonable doubt. The practicability of providing some level of training different from and greater than the level of training actually provided to employees is an essential element of the offence created by the subsection. See Chugg v Pacific Dunlop Ltd (1990) 95 ALR 481 at 486 et seq. Proof of that essential element required evidence.

The Magistrates Court proceedings

The trial before Magistrate Malone was heard over eight days in October 2009 and his Honour delivered judgment on 30 October 2009.
In substance, the charge and case run by the prosecution, and the particulars in support of the charge, were, relevantly for present purposes, to the effect that the appellant contravened s 19 because its plan for dealing with the risk of harm from cyclones involved employees sheltering in the dongas at Rail Camp 1 when the dongas were not a safe refuge in the event of a cyclone of the kind experienced in March 2007. The prosecution case was that the dongas were not a safe refuge because they had not been designed to withstand cyclonic forces applicable to that particular area, and their construction in relation to the foundations was defective. It was said that it was not sufficient for the appellant to have made any assumptions about the suitability of the dongas.
Counsel for the prosecution said in closing before the magistrate (trial ts 5 ‑ 6, 14 October 2009):
... the responsibility of employers for the safety of their employees can only be discharged by taking an active, imaginative and flexible approach to potential dangers.
With the knowledge that human frailty is an ever present reality. That is, it's not sufficient for employers to make assumptions. They are to be alert to the possibility of potential dangers.
As a matter of logic we say that that principle applies not only to the employees of an employer and their frailty, but also to others which may be acting in such a way as to impact on the safety and welfare of those employees. Of course the relevant importance of that in this case is when one has regard to the fact that the dongas were not properly constructed by reference to the Australian Standards, or by reference to the way in which the tie‑downs should have been completed.
...
Here the question of foreseeability arises in relation to the potential for, firstly, dongas not to be constructed according to their designs. You see that was the case in so much as the tie‑downs were not properly constructed in accordance with the designs.
Was that foreseeable? We say clearly foreseeable, just that the level of the reasonableness of that foreseeability is what needs to be determined. The other thing, of course, is the foreseeability that a small shire inland, based in Newman, would pass or approve the design for dongas for wind regions A, when, if it had gone to the appropriate steps to determine where the dongas were going to be situated, and had a look at the Australian Standards, or the Building Code, would have seen that it was, in fact, in wind region A [sic - region C] .
So these things, the questions of foreseeability, arise not simply in relation to the potential for the hazards but also, we say, in relation to things that may impact on those hazards.
His Honour's reasons were comprehensive and addressed the evidence of all the witnesses. His Honour noted that, on the whole, questions of credibility were not of significance to his decision and the factual circumstances were not controversial (63).
In relation to cyclone procedures, his Honour found, in effect, that at the relevant time, the appellant's plan, in conjunction with the procedures adopted by Team 45, included returning to the camp for safe refuge in the dongas. Team 45 had a system of obtaining and communicating information from the Bureau of Meteorology, involving various colour‑coded 'alerts': blue, yellow and red. Following the issue of a yellow alert, the worksite was to be evacuated and employees were to return to the camp. By the time a red alert was sounded, all personnel had to be within the camp's accommodation facilities and the site locked down.
The taking of refuge within accommodation approved by the local authority accorded with the experience of the people who had encountered a cyclone previously and with the views of the experts as to appropriate safety measures (69), (77), (79), (83). His Honour found that the only deficiency in the procedure was the failure to provide for evacuation from the area. His Honour also found, however, that evacuation from the area is a last‑resort decision made once there is a trigger for evacuation, such as an unacceptable risk of very destructive winds with no safe refuge and/or flooding, and no such trigger existed in the circumstances of this case (79), (84), (87). His Honour also found that the employees had all received inductions where the cyclone alert system had been explained and that they had a rudimentary understanding of the procedures. His Honour accepted that there was no evidence that any shortcomings in the level of training provided bore upon the injuries suffered by the relevant employees, and that the injuries were caused not by any deficiency in the procedures, but rather by the inadequacies in the construction of the dongas (89) ‑ (90).
Accordingly, the crucial issue at trial, and subsequently on appeal before Murray J, was whether it was sufficient, having regard to the nature of the statutory duty, for the appellant to act on the basis that the dongas provided a safe refuge.
The magistrate accepted that the appellant employer's two most senior personnel, Mr Retallack and Mr Farmer, both assumed and acted on the basis that the dongas were safe. Both thought that the plans for the camp had been approved by local authorities and that the relevant building regulations had been complied with. Further, both understood that the camp had been constructed for Worley Parsons, who they understood to be a reputable company with good quality control. It was accepted that neither men had cause to suspect that the dongas were unsafe (38), (42), (44), (45), (46), (80).
In considering whether their assumptions were reasonable, his Honour observed that, in addition to Mr Retallack's view concerning the reputation and competence of Worley Parsons, support for Mr Retallack's position was also to be found in the 'alliance contract' between the appellant and TPI, under which, relevantly, TPI had agreed to exercise due skill, care and diligence and to comply with all statutory requirements (81). His Honour had also referred (17) to a document entitled 'Health and Safety Requirements' (reference number PS003), which formed part of the contract with the appellant, under which TPI agreed that site facilities provided would be 'cyclone prepared from establishment' (cl 10.47 of PS003, read with Annexure S1 cl 2 of the alliance contract).
In response to the prosecutor's submission that the appellant should have sought an assessment from a suitably qualified engineer, the magistrate referred to the expert evidence of Professors Love and Nott, who were called by the appellant, and to the expert evidence of Mr Gifford and Mr Cann, who were called by the prosecution. Professor Love was an adjunct professor at the University of Queensland and a member of the Safety Institute of Australia, a registered safety professional, a certified lead occupational health and safety auditor, a member of the Risk Management Institution of Australia and a Federal Safety Officer. Professor Nott was a professor at James Cook University and had a doctorate in geomorphology and specialised in areas relating to tropical cyclones and tsunamis. Mr Gifford was, and Mr Cann had been, a senior officer in the Fire & Emergency Services Authority of Western Australia. His Honour said (83):
Both Professors Love and Nott felt it was reasonable to assume that if the accommodation had been approved by the relevant Local Authority that you could assume it was a safe refuge. Mr Gifford and Mr Cann [both of the Fire & Emergency Services Authority of Western Australia - FESA] both acknowledged this and this is confirmed in FESA documentation.
The official publications have pointed out that since Cyclone Tracy in 1975 building standards have been altered to the point where the public are expected to shelter in Shire approved accommodation. This, as FESA stated, promotes the sheltering philosophy.
Earlier, the magistrate noted Professor Love's evidence (57) that:
•        The most prudent and appropriate emergency plan and procedure for an impending tropical cyclone, regarding the safety of persons within a construction camp in a remote location such as the Pilbara, is not to evacuate at the time, but to seek refuge.
•        It is stated that 'most cyclone related deaths are from drowning in a storm surge or flood..' Therefore, the circumstances of merely up and leaving (evacuating) at the time of an impending cyclone is not always a simple issue.
...
•        The consensus of all the literature and general recommended approach regarding many natural threats is for evacuation to be considered as a last resort and the 'take shelter' approach is a universal recommendation of all authorities, particularly for cyclones.
•        Advice published by emergency authorities and the like in addressing the issue of evacuation, or staying to shelter from an impending cyclone is to have faith in the current standards for buildings and structures that meet the Code to withstand cyclones and provide safe refuge.
•        It is also evident that an important factor in evacuating is to have somewhere to go that will be safe as a shelter/refuge and can be accessed without being placed at risk in the process, by exposure to high winds and flying debris and evacuation routes being flooded, or at risk of flash flooding etc.
His Honour made the following observation concerning Professor Love's evidence (64):
Professor Love was an appropriately qualified expert who produced an intelligible, comprehensive and persuasive report. He was chased around in an extensive cross‑examination but ended up conceding only to the accuracy of some theoretical positions. His analysis of what actually happened and the reasons for it remained fundamentally unchanged.
His Honour concluded that there was nothing that would or should have prompted the appellant to have the suitability of the accommodation assessed, and that it was reasonable for the appellant to assume that the donga accommodation provided an appropriate refuge (83) ‑ (84).
The magistrate summarised his conclusions as follows (90) ‑ (91):
The rail camp was a working environment within the meaning of section 19(1) of the Act.
The cyclone procedures of the Accused were arguably deficient to the extent that they did not have any plan in the event that an evacuation was necessary from Rail Camp One.
The training of the employees in cyclone procedures was rudimentary and their understanding of the procedure less than coherent.
The provision in the cyclone procedures for employees to shelter in the donga accommodation at Rail Camp One was appropriate.
The triggers for evacuation of Rail Camp One were flooding or an unacceptable risk of destruction.
It was not reasonably foreseeable that Rail Camp One would flood to the point where evacuation was required.
It was not reasonably foreseeable to the Accused that there would be an unacceptable risk of destruction of Rail Camp One. In particular it was not foreseeable that;
(i)The dongas would be constructed with specifications for the wrong wind region;
(ii)The Shire of East Pilbara would approve those specifications;
(iii)The foundation systems for the dongas would be deficient.
It was reasonable to assume that the dongas would provide a safe refuge.
This assumption was reasonable because;
(i)the dongas were being placed in an area known to be the subject of cyclonic events;
(ii)the Alliance responsible for producing the specifications was committed contractually to safety;
(iii)the Shire of East Pilbara had a role to play in the enforcement of building Code and standards compliance and an expected familiarity with the area the camp was being established; and
(iv)previous experience pointed to employees sheltering in donga accommodation during cyclones.
The absence of an evacuation plan in the Accused's cyclone procedure did not expose its employees to a hazard.
The training issues in relation to cyclone procedures did not expose the employees to a hazard.
The Accused did not fail to provide and maintain adequate cyclone procedures at Rail Camp One.
Neither charge has been proved beyond a reasonable doubt and it is appropriate to acquit the Accused of each of the charges.
The appellant was, accordingly, acquitted at trial.

Appeal to the Supreme Court - Murray J

The prosecution appealed the acquittals and the appeal was heard on 18 May 2010 by Murray J. His Honour delivered reasons on 30 July 2010 (Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194).
The prosecution alleged that the magistrate erred in his approach to s 19 and erred in fact and in law in finding 'that it was not reasonably foreseeable ... that there would be an unacceptable risk of destruction of Rail Camp 1' and in finding that 'it was appropriate for the [employer] to assume that the dongas would have been suitable shelters'. There were no challenges, otherwise, to the magistrate's specific findings of fact. Murray J decided the appeal on the basis of the facts as found by the learned magistrate (reasons [77]).
The central issue on appeal was whether it was sufficient for the appellant employer, in the discharge of the statutory duty, to have and implement procedures to deal with the risks associated with cyclones, which involved employees taking refuge in the dongas at the camp, on the basis that the dongas were a safe refuge.
Murray J noted that there was a considerable body of evidence to the effect that in workplaces such as this, in regions affected by cyclones, it was common practice to shelter in donga accommodation (reasons [76], [78]). Murray J in [78] of the reasons said:
There is no doubt that to shelter in the dongas was a common practice and an effective way of discharging the duty imposed by s 19, if the assumption that the dongas were adequate to withstand the forces inherent in an unpredictable cyclonic event, was in fact justified.
His Honour held, in effect, that the appellant's duty under s 19 required it to enquire and investigate for itself, including by taking engineering advice if necessary, whether the dongas had been properly designed and built to withstand the effect of a cyclone such as that which eventuated in March 2007, and that the appellant, by inquiries and investigations, could have ascertained that the dongas were not suitable (reasons [80] ‑ [85]). His Honour said that this was 'accepted' (reasons [80]). His Honour does not appear to have identified comprehensively and with specificity the particular inquiries and investigations that ought to have been undertaken. His Honour, nevertheless, seems to have treated an inspection (possibly by a structural engineer) as an example or illustration of the type of inquiry and investigation which, at the least, would have been necessary. He said [82]:
As I understand the evidence, there was not even an inspection by any person acting for the respondent, of the dongas on site, to ensure that the tie-downs and the foundations were of an adequate standard and the welds were of an appropriate standard of workmanship. (emphasis added)

His Honour added, in what appears to be a reference to the appellant employer (and without identifying the significance of the observation with respect to the onus of proof on the prosecution) that [82]:
It was not suggested that there was any impediment to those in responsible positions acting for the [appellant employer], making these enquiries so that the [appellant employer] might be satisfied of the adequacy of its emergency procedure.
His Honour concluded that the appellant's guilt of the offences had been established beyond reasonable doubt and accordingly set aside the acquittals and entered judgments of conviction.
In supplementary reasons published on 22 October 2010 (Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194 (S)), the learned judge imposed a global fine of $90,000, which was, relevantly, 15% of the maximum.

The grounds of appeal to this court

The appellant relies on eight grounds of appeal. The main focus of the appeal was on grounds 1 and 4, which concerned Murray J's finding that the appellant breached the statutory duty by acting on the basis that the dongas were a safe refuge, without itself carrying out inquiries and investigations, including if necessary by engaging an engineer. Grounds 1 and 4 overlap to a considerable extent, although ground 1 is broader in scope than ground 4.
In substance, by ground 1, the appellant contends that in light of the magistrate's findings of fact and the relevant evidence, the judge's finding of breach amounted, in effect, to the imposition of an absolute duty, when the statutory duty only required an employer to do all that was 'practicable'.
By ground 4, the appellant alleges, in effect, that his Honour erred in concluding that the appellant breached s 19 insofar as his Honour found that the appellant could, including by obtaining engineering advice, have ascertained that the dongas were not suitable, and further in finding that the appellant had made a 'concession' to that effect ([80] of the reasons, and [27] of the supplementary reasons).
Ground 2 contends that his Honour's reasons were inadequate. Ground 3 alleges that his Honour failed to deal with the issue of causation. The remaining grounds challenge the quantum of the penalty imposed.

Disposition of the appeal

Grounds 1 and 4

In my respectful view, by concluding that the appellant was required to carry out its own inquiries and investigations, including by obtaining engineering advice, into the design and fabrication of the dongas for the purpose of assessing their suitability for cyclonic conditions, his Honour ascribed a content to the duty under s 19 which went beyond what was reasonably practicable in the circumstances.
The taking of refuge in an appropriate shelter was generally regarded as the safest way to avoid injury in cyclonic conditions. There was nothing in the magistrate's findings of fact (which the judge accepted) to indicate to the appellant prior to the accident that the donga accommodation in Rail Camp 1 was unsuitable for use as a safe refuge, for which purpose shire‑approved accommodation was commonly adopted in work environments in cyclone‑affected areas. Nor was there anything to suggest that a reasonable employer in the position of the appellant would have appreciated or foreseen that the accommodation was not properly designed and built to withstand the weather conditions that affect the area in which it was located, or that it otherwise posed a risk of injury in the event of a cyclone. The donga accommodation was understood to have been built for a reputable and competent organisation with good quality control, and to have met the requirements of the local authority, including in relation to building standards for cyclone‑affected areas.
As the magistrate found, the prosecution did not point to any particular evidence which indicated a reason for the appellant to undertake its own inquiries and investigations, and the evidence was 'all the other way' (89). The evidence relied on by the prosecution to the effect that the donga accommodation was unsuitable only emerged with the benefit of hindsight.
Accordingly, in my respectful opinion, his Honour erred in finding that it was proved beyond reasonable doubt, when viewed prospectively rather than retrospectively, that in having procedures for dealing with cyclones involving colour‑coded alerts and taking refuge in shire‑approved accommodation, the appellant had not, so far as reasonably practicable, provided a working environment in which its employees were not exposed to hazards created by cyclonic weather conditions. I would uphold ground 1.
As to ground 4 (leave in respect of which is required and ought be granted), the appellant submitted, in effect, that the judge erred in that the prosecution did not establish any measures or means by which it could be said that it was practicable for the appellant to ascertain, including by obtaining engineering advice, that the dongas were not properly designed and built to withstand the relevant cyclonic conditions.
Senior counsel for the respondent, in effect, submitted in response that the prosecution did not bear the onus of proving what, in the circumstances, it was practicable for the appellant to do. That submission of the respondent cannot be accepted. The requirement of practicability is an integral part of the employer's duty and is, therefore, an essential element of the offence which must be proved by the prosecution beyond reasonable doubt: Chugg v Pacific Dunlop Ltd; Interstruct Pty Ltd v Wakelam (110); Ball v Stewart (6 ‑ 7).
Mr Retallack and his staff were construction engineers. They were not structural engineers with the expertise to assess the suitability of the dongas for cyclonic conditions (magistrate's reasons 46, 83). There was no evidence that, had a structural engineer been engaged and sent to Rail Camp 1 to inspect the dongas, he or she would have discovered the error in the specifications and plans approved by the local authority concerning the appropriate wind region.
There was no evidence that had the appellant or an engineer made inquiries of Team 45 concerning the construction of the dongas, they would have been told anything other than that they had been constructed in accordance with the plans and specifications approved by the shire and applicable building standards. There was no evidence that had the appellant or a structural engineer retained by it made inquiries of the local authority, the local authority would have responded to such inquiries. Nor was there evidence that any response, even if given, would have revealed anything more than the fact that the plans and specifications had been approved by the shire.
On the question of the possibility of inspection by the appellant, or an engineer instructed by it, there was no evidence that the appellant could have inspected the dongas prior to occupying the ones allocated to it under licence. Any such inspection, if permitted, would have involved an examination of each of the 70 dongas, as the appellant could not have required that it be allocated any particular dongas in advance of being licensed to occupy them. Nor was there, in any event, evidence that the various deficiencies with the foundations would have been discovered by a structural engineer engaged by the appellant without destructive testing.
The only evidence the respondent pointed to in this appeal was that of Mr Simms, a mechanical engineer, in relation to one aspect of the donga's construction, viz, the welds. He had only been to Rail Camp 1 after the cyclone, and his evidence was directed to the identification of the cause of the damage to the dongas. His evidence, as found by the magistrate, was to the effect that the standard of welding of the tie rods to the subframes of the dongas was poor. He said that a competent welder would have seen that the welds were poor, but would not have known what forces the welds would bear. He also said that whilst there was also inadequate design with no safety margins, had the welds been properly done, the tie bars would probably not have broken off (magistrate's reasons (14 ‑ 15)). Mr Simms did not say what inspections and inquiries a reasonable engineer engaged by the appellant would have undertaken prior to the cyclone. The focus of his evidence was to seek an explanation for the causes of the destruction of some of the dongas, after the event.
As to the significance of the poor welding, Mr Simms' evidence differed from that of Mr Bruechle, an engineer called by the prosecution. The effect of Mr Bruechle's evidence was that essentially the damage which eventuated was due to the inappropriate design specification concerning wind region A. He said in his report (GB 1287):
Although I have been critical of the design and execution of the tie downs there is good theoretical and practical evidence that the buildings would have performed satisfactorily had they been subjected to only Region A winds. The theoretical evidence is that the Staff Quarters buildings would have withstood the winds, would not have overturned and would not have moved sideways because there was sufficient restraint if friction was relied on. The practical evidence is that buildings at RV2 withstood winds that were at a higher velocity than those called for by Region A and performed satisfactorily, even though they were generally tied down as the buildings at RV1 were tied down although some ties were worse (See Photograph 14). Although there are some shortcomings in the design and execution of the tie downs and although the inundated Pindan foundations could have contributed to the failures they were due almost completely to the fact that the buildings were subjected to cyclonic winds when they were only intended for Region A winds. (emphasis added)
The magistrate noted the difference between the evidence of Mr Simms and Mr Bruechle in that regard, but made no finding as to the overall significance of the poor welds (magistrate's reasons (13 ‑ 14)). There was, moreover, no finding that prior to the cyclone any engineer who considered the specifications, and who understood that the buildings were only required to meet wind forces associated with wind region A, would have regarded the welding as unfit for purpose.
In the absence of evidence of the kind referred to above in [73] ‑ [75], and having regard to the findings of the magistrate to which I have referred, I would also uphold ground 4.
There is, however, one further point which should be mentioned in relation to ground 4, which is the appellant's submission that Murray J's reference to what had been 'accepted' (see [59] above) was tantamount to finding (erroneously) that a 'concession' had been made by the appellant's counsel. For his part, the respondent contends that the appellant has mischaracterised the learned judge's reasons. The respondent says that Murray J was not referring to any concession made by counsel for the appellant during argument, but rather the judge was referring to the evidence before the magistrate. It is not entirely clear from the reasons, in my respectful view, to what his Honour was referring as having been 'accepted', and by whom. Having regard to the appellant's submissions read as a whole, I would not attribute to senior counsel for the appellant any concession as having been made to the effect that the appellant could have made inquiries and investigations which would have exposed the deficiencies in the dongas. In any event, however, the point seems not to lead anywhere, as, given the attitude of the respondent, neither party in this appeal is submitting that any relevant 'concession' was made by the appellant's counsel.
Accordingly, grounds 1 and 4 have been made out with the result that the appeal should be allowed.

Ground 2

The principles relating to the adequacy of reasons are not in dispute: see Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 ‑ 444 (Meagher JA); Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121.
At a level of generality, the ability of the appellant to formulate its challenges in grounds 1 and 4 is arguably inconsistent with the maintenance of the position that the reasons do not enable the appellant properly to understand the basis upon which his Honour found against it.
For his part, the respondent says that the reasoning is sufficiently clear, having regard to the issues addressed by the judge. The respondent says:
The substantive issue on appeal was a matter of law on the facts as found by the magistrate, namely, whether the assumption held by the Appellant (that the dongas were built and installed for the cyclone region in which they were situated, but without making any enquiries) was appropriate and reasonable ... (emphasis added).
The appellant points to the gravity of the finding against it and submits that as the learned judge had, in effect, found it guilty by failing to make inquiries and investigations, and bearing in mind the findings of the magistrate accepted by his Honour, it was necessary for his Honour to specify in his reasons the particular inquiries and investigations the absence of which led to the conclusion of the appellant's guilt.
I accept the thrust of the appellant's submission.
His Honour's findings with respect to the guilt of the appellant with regard to its failure to ascertain the unsuitability of the dongas:
•'if necessary by taking engineering advice' [80],
•where there was 'not even an inspection ... of the dongas on site to ensure' that the foundations, welds and tie downs were adequate and appropriate [82],
•where '[T]he remedy of enquiry and judgment was readily at hand to determine whether the dongas were capable of providing the safe refuge' [84], and
•in circumstances where 'some were after the event found to be' unsuitable, 'as they would have been found to be upon any reasonable inspection' before the event [85],
are, with respect, too broadly stated and general in nature to allow the appellant to understand properly the basis upon which it was found guilty. Given the gravity of the ultimate finding of guilt, it was important for the appellant to know precisely the steps available to it which ought to have been taken. The respondent's submissions, referred to above, also recognise the significance of the absence of inquiries to the judge's finding of guilt.
I would uphold ground 2.

Ground 3

The question of causation is relevant only to the first charge, which requires that the relevant contravention causes the death of, or serious harm to, an employee: s 19A(2)(a)(ii). The appellant alleges, in effect, that the judge failed to deal with the question of causation and therefore, in the absence of a finding that the appellant's breach of the s 19 duty caused the employee's injuries, it was not open to his Honour to conclude that the charge had been proved by the prosecution.
At trial, the learned magistrate identified causation as a matter in issue that required resolution (8). The magistrate noted that counsel for the accused (appellant), in his opening address, submitted that the employee's injuries were caused by the inadequacies in the construction of the dongas, rather than by any deficiencies in the cyclone procedures. The magistrate accepted that submission and thereby made a finding to that effect (89 ‑ 90).

There was no ground of appeal before Murray J challenging that finding, nor was the issue of causation debated before Murray J. Nevertheless, as noted earlier, Murray J accepted the magistrate's findings other than the finding concerning breach. Murray J thereby, arguably, impliedly found that a proper performance of the duty would have revealed the deficiencies, and the employees would not have been exposed to injury by taking refuge in one of the inadequately designed and constructed dongas.
On the other hand, had there been an identification in the judge's reasons of the specific inquiries and investigations that the appellant ought to have undertaken, and what precisely such inquiries and investigations would have revealed before the cyclone, there might have arisen discrete questions of causation.
The respondent, in his written submissions, accepted that the judge did not deal with the issue of causation, but says that the appeal on this ground should be dismissed on the basis that there has been no miscarriage of justice: s 14(2) of the Criminal Appeals Act 2004 (WA). The respondent said that the failure to provide and maintain 'an adequate cyclone procedure' was, as a matter of common sense, a cause of the employees' injuries. That submission, evidently, proceeded on the basis that the appellant would not succeed with respect to grounds 1 and 4. That premise, as it transpires by these reasons, is incorrect.
In light of the conclusions reached with respect to grounds 1 and 4, in my view, it is unnecessary to pursue further the matters raised by ground 3, in relation to which there was, in any event, very limited debate at the hearing of the appeal.

Other grounds

It is unnecessary to address the remaining grounds that deal with the quantum of the fine imposed.

Conclusion

I would allow the appeals, set aside the convictions and orders of Murray J, and reinstate the judgments of acquittal. The parties should be heard on any other appropriate orders.
MAZZA J: I agree with Murphy JA.