Reilly v Devcon Australia Pty Ltd

Case [2008] WASCA 84

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   REILLY -v- DEVCON AUSTRALIA PTY LTD [2008] WASCA 84

CORAM:   STEYTLER P

MILLER JA
NEWNES AJA

HEARD:   6 FEBRUARY 2008

DELIVERED          :   17 APRIL 2008

FILE NO/S:   CACR 68 of 2007

BETWEEN:   PETER JOHN PATRICK REILLY

Appellant

AND

DEVCON AUSTRALIA PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MURRAY J

Citation  :REILLY -v- DEVCON AUSTRALIA PTY LTD [2007] WASC 106

File No  :SJA 1118 of 2005

Catchwords:

Occupational health and safety - Occupational Safety and Health Act 1984 (WA) - Control of workplace - Contractor - Circumstances in which a principal will be 'deemed employer' of a contractor - Relative expertise

Occupational health and safety - Definitions - Meaning of 'control' - Meaning of 'matters over which he has control' - Meaning of 'practicable'

Legislation:

Factories Act 1961 (UK), s 29(1)
Mines Safety and Inspection Act 1994 (WA), s 9(1)(a)
Occupational Safety and Health Act 1984 (WA), s 3(1), s 5, s 19, s 20, s 21, s 22, s 23
Occupational Health and Safety Act 1985 (Vic), s 21
Occupational Health, Safety and Welfare Act 1986 (SA), s 4(2), s 19(1)

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr G W Tannin SC & Mr T C Russell

Respondent:     Mr R W Richardson

Solicitors:

Appellant:     State Solicitor for Western Australia

Respondent:     DLA Phillips Fox

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

Chugg v Pacific Dunlop Ltd (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)

Humberstone v Northern Timber Mills (1949) 79 CLR 389

Morrison v De Bono [2005] WASC 271; (2005) 147 IR 454

Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107

R v ACR Roofing Pty Ltd [2004] VSCA 215; (2005) 11 VR 187

R v Associated Octel Ltd [1994] 4 All ER 1051

Reilly v Devcon Australia Pty Ltd [2007] WASC 106

Reilly v Tobiassen [2008] WASC 6

Stratton v Van Driel Ltd [1998] VSC 75; (1998) 87 IR 151

  1. JUDGMENT OF THE COURT: This appeal concerns the construction of s 19(1) and s 19(4)(a) of the Occupational Safety and Health Act 1984 (WA) (Act).

  2. On 18 September 2002 Mr Desmond Kelsh died as a result of the collapse of a building under construction in Myaree, south of Perth.  The building under construction consisted of a series of showrooms in an area known as 'Melville Square'.  Glenpoint Nominees Pty Ltd (Glenpoint) was the lessor of the land comprising the building site (Myaree site).  The respondent (Devcon) was related to Glenpoint.  The two companies had common directors and shareholders.  Devcon was in charge of the development on the Myaree site.  It engaged labour and ordered materials needed for the building process, although invoices in respect of these were paid by Glenpoint.

  3. The showrooms were…

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AGLC
Reilly v Devcon Australia Pty Ltd [2008] WASCA 84
Case
[2008] WASCA 84
Decision Date

CaseChat Overview and Summary

The case of Reilly v Devcon Australia Pty Ltd revolves around the tragic death of Mr Desmond Kelsh during the construction of a building in Myaree, south of Perth. The respondent, Devcon Australia Pty Ltd, was the contractor in charge of the construction site, while Glenpoint Nominees Pty Ltd was the lessor of the land. The appellant, an officer of Worksafe Western Australia, prosecuted both companies for breaches of the Occupational Safety and Health Act 1984 (WA). The primary legal issues the court had to address were whether Devcon and Glenpoint were the 'employers' of Mr Kelsh under the Act and whether they had failed to provide and maintain a safe working environment, leading to Mr Kelsh's death.

The court examined the definitions and interpretations of key terms within the Occupational Safety and Health Act 1984 (WA), specifically focusing on the meanings of 'control','matters over which he has control', and 'practicable'. The court also considered the extent of control that Devcon had over Kefo, the company that employed Mr Kelsh, and whether this control was sufficient to deem Devcon as the employer under the Act. The central question was whether Devcon's relationship with Kefo and their oversight of the construction project were enough to hold Devcon accountable for the safety of Kefo's employees, including Mr Kelsh. The court's reasoning involved a detailed analysis of the contractual arrangements, the degree of control exercised by Devcon over the construction processes, and the relative expertise of the parties involved.

In its judgment, the court concluded that Devcon did not have sufficient control over Kefo to be deemed the employer of Mr Kelsh under the Occupational Safety and Health Act 1984 (WA). The court found that while Devcon had significant control over the construction process and the site, it did not have the requisite control over Kefo's employment practices and day-to-day operations to be considered the employer. Consequently, the court ruled that Devcon was not liable for Mr Kelsh's death under the Act. The appeal was dismissed, and the prosecution of Devcon and Glenpoint was quashed.

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

JUDGMENT OF THE COURT: This appeal concerns the construction of s 19(1) and s 19(4)(a) of the Occupational Safety and Health Act 1984 (WA) (Act). On 18 September 2002 Mr Desmond Kelsh died as a result of the collapse of a building under construction in Myaree, south of Perth. The building under construction consisted of a series of showrooms in an area known as 'Melville Square'. Glenpoint Nominees Pty Ltd (Glenpoint) was the lessor of the land comprising the building site (Myaree site). The respondent (Devcon) was related to Glenpoint. The two companies had common directors and shareholders. Devcon was in charge of the development on the Myaree site. It engaged labour and ordered materials needed for the building process, although invoices in respect of these were paid by Glenpoint. The showrooms were being built with pre‑cast concrete panels. A foundation concrete slab was poured. The panels, which were to form the walls of the building, were cast and positioned in stacks around the slab. Once ready to be erected, lifting equipment was attached to each panel so as to place it in a vertical position on the slab. Temporary braces were fixed to the newly erected panels. Once panels had been erected on opposite sides of the slab, structural steel rafters were added. Purlins were attached to the rafters. The roof would then be attached to the purlins. Mr Kelsh was a rigger. He was the director of Kefo Steel Erection & Fabrication Pty Ltd (Kefo). Kefo had been engaged by Devcon pursuant to a written order dated 18 August 2002 to:Provide all necessary labour on‑site for the supervision and erection of all structural steel and concrete tilted panels at Melville Square as per the agreed rates.- Rigger supervisor = $45 per hour- Rigger = $40 per hour. On 18 September 2002 Mr Kelsh and another rigger, Mr Peter Hunt, were working on Unit 3 of the building under construction. By then, three of the walls of that unit had been erected. The fourth wall (the southern wall) was to have been constituted by the northern wall of Units 2 and 3. However, these units, which had previously been constructed, had been dismantled for reasons attributable to the building licence. Steel rafters had been attached to the eastern and western walls of Unit 3 by Kefo employees. Some bracing had been installed on the rafters along the western wall of the unit. A wire rope had been attached to one of the rafters near its apex. This was attached to the slab of the unit at two points and then tensioned, so as to stabilise the rafter to which it was attached. Purlins had been attached to the rafters. Mr Kelsh and Mr Hunt were sitting on another rafter, installing additional purlins. The rafter on which they were sitting, which had not yet been adequately secured, moved and then fell to the slab below. This caused other rafters and some panels to fall. Some of this material fell on top of Mr Kelsh, resulting in his death. Arising out of this incident, Glenpoint and Devcon were prosecuted by the appellant. He is an officer of Worksafe Western Australia who had been authorised for that purpose by the Worksafe Western Australian Commission. The complaint, dated 15 September 2003, alleged (relevantly) that, being employers, the two companies had:failed so far as was practicable to provide and maintain a working environment in which [their] employees were not exposed to hazards in contravention of section 19(1) of the … Act and by that contravention caused the death of an employee; contrary to section 19(7) of the Act.Particulars of the complaint alleged, amongst other things, that it had been practicable for Glenpoint and Devcon 'to have ensured that … there was adequate lateral restraint of the steel roof beams during the erection of steel roof members of the building under construction' and that their failure to do so was the cause of the collapse (pars 4(a) and 10.7 of the particulars).

Ratio Decidendi

Legal Principle Established

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