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

Link to Appeal :

[2008] WASCA 84

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 106
Case No:	SJA:1118/2005	Heard:	14 FEBRUARY 2007
Coram:	MURRAY J	Delivered:	11/05/07
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	PETER JOHN PATRICK REILLY DEVCON AUSTRALIA PTY LTD
Catchwords:	Occupational health and safety Collapse of building Duty of employer Principal as deemed employer of subcontractor Breach of duty Reasonable practicability
Legislation:	Nil
Case References:	Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 Stratton v Van Driel Ltd (1998) 87 IR 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : REILLY -v- DEVCON AUSTRALIA PTY LTD [2007] WASC 106 CORAM : MURRAY J HEARD : 14 FEBRUARY 2007 DELIVERED : 11 MAY 2007 FILE NO/S : SJA 1118 of 2005 BETWEEN : PETER JOHN PATRICK REILLY

Appellant

AND

DEVCON AUSTRALIA PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R K BLACK

File No : PE 49364 of 2003, PE 49367 of 2003, PE 7593 of 2004, PE 7594 of 2004

Catchwords:

Occupational health and safety - Collapse of building - Duty of employer - Principal as deemed employer of subcontractor - Breach of duty - Reasonable practicability

(Page 2)

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

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

Respondent : Mr R W Richardson

Solicitors:

Appellant : State Solicitor's Office

Respondent : DLA Phillips Fox

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

Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998
MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355
Stratton v Van Driel Ltd (1998) 87 IR 151

(Page 3)

1 MURRAY J: This appeal concerns a prosecution in the Perth Magistrates Court in respect of a tragic industrial accident in which a man lost his life.

2 The construction site was on the corner of Norma Road and Leach Highway, Myaree. Upon that land a number of buildings were in the course of construction when the accident occurred on 18 September 2002. To put it simply, the essential mode of construction of a building in the group was to lay concrete slabs and footings and then to erect concrete walls which were fabricated on-site and erected by what is described as the tilt-up panel construction method. The walls would be placed in position and raised to the vertical and then steel rafters and bracing would be attached, with bearers or purlins attached to the rafters to carry the roof of the building.

3 Two related companies were involved in the construction process. They were companies having common directors and shareholders. One was Glenpoint Nominees Pty Ltd (Glenpoint). It seems that this company…

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.

Continue reading Reilly v Devcon Australia Pty Ltd

Details

AGLC: Reilly v Devcon Australia Pty Ltd [2007] WASC 106
Case: [2007] WASC 106
Decision Date: 11 MAY 2007

CaseChat Overview and Summary

Reilly v Devcon Australia Pty Ltd concerned a claim brought by the plaintiff, Reilly, against Devcon Australia Pty Ltd, the main contractor, following a building collapse that resulted in Reilly's injuries. The plaintiff also sought to hold Devcon as the deemed employer of a subcontractor, asserting that Devcon breached its occupational health and safety duties. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether Devcon owed a duty of care to the plaintiff as the deemed employer of the subcontractor and if Devcon breached that duty by failing to ensure the safety of the construction site. Additionally, the court had to determine if Devcon could reasonably have implemented safety measures that would have prevented the accident.

In delivering the judgment, the court held that Devcon owed a duty of care to the plaintiff as the deemed employer of the subcontractor, as per established precedents. The court found that Devcon had indeed breached this duty by failing to provide a safe working environment. The court examined the concept of reasonable practicability and concluded that there were measures that Devcon could have implemented to prevent the accident, which were within the realm of practical possibility. As such, the court rejected Devcon's argument that the measures were not reasonably practicable.

The appeal brought by Devcon was dismissed by the Supreme Court of Victoria. The court upheld the lower court's findings that Devcon was liable for the injuries sustained by the plaintiff due to the breach of occupational health and safety duties.

Orders

Orders of the court

Appeal dismissed

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

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