Reilly v Devcon Australia Pty Ltd
[2007] WASC 106
•11 MAY 2007
REILLY -v- DEVCON AUSTRALIA PTY LTD [2007] WASC 106
| Link to Appeal : |
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| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 106 | |
| Case No: | SJA:1118/2005 | 14 FEBRUARY 2007 | |
| Coram: | MURRAY J | 11/05/07 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| 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
- 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 entered into a lease of the land and in that way occupied the building site. The related company was called Devcon Australia Pty Ltd (Devcon). It was to this company that the effective management of the building process was committed as the building principal. It was this company who engaged labour and ordered the supply of materials to the site. Invoices rendered by those contractors were paid, as I understand it, by Glenpoint.
4 The contractual arrangement with which this case is concerned was made between Devcon and Kefo Steel Erection Pty Ltd (Kefo). The buildings were to be showrooms known as "Melville Square". Devcon engaged Kefo by the medium of a written order to:
"Provide all necessary labour on-site for the supervision and erection of all structural steel and concrete tilt panels at Melville Square as per the agreed rates.
Rigger supervisor = $45.00 per hour
Rigger = $40.00 per hour."
5 Having regard to the way in which the work was performed, the Magistrate, his Honour Mr Black, found that Devcon was the entity which was the principal in the building work. Devcon's manager in respect of the site was a Mr Tobiassen, a registered builder. He had control of the
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- site, and an employee of Devcon, a Mr Fuller, was the site supervisor who reported to Mr Tobiassen.
6 Kefo, as can be seen from the terms of the order for their services, was a small family private company conducting a business of steel erection and fabrication. Its directors were a Mr Kelsh and his wife. Mr Kelsh also worked in the business. He was involved in this job as the supervisor of a team of workers and so he was the rigger supervisor to which the contract refers. It was Mr Kelsh who was injured in the accident and who died from his injuries. At the time they were working on the proposed showroom which would be Unit 3.
7 I have said the accident occurred on 18 September 2002. For present purposes it is sufficient to note that by then Kefo's employees, under the direction of Mr Kelsh, had been working on the site since about the middle of August. By the day in question it seems that most of the wall panels of Unit 3 had been raised to the vertical position. By crane, three rafters had been affixed to the panels and were, I think, still being held with the support of the crane. In addition, some cross-bracing had been installed between the panels. Mr Kelsh and another man were in the process of installing the steel roof bearers or purlins to which the roofing steel would be attached.
8 It seems, from the evidence to which I was referred and which I have read in detail, that the difficulty was that the rafters lacked sufficient restraint against lateral movement. Mr Kelsh had endeavoured to provide a degree of restraint by attaching a chain and block assembly, but in fact, as fixed, that process was not adequate, leaving the construction in a state of instability although, before the accident, still apparently in the process of routine erection. For some reason, not I think explained in the evidence, the rafters started to move laterally. They seem to have buckled and the connection between the panels and the rafters parted, allowing the rafters to collapse to the floor. Some of the panels themselves remained upright, but two collapsed to the floor.
9 It seems that Mr Kelsh and a Mr Hunt were originally on a rafter when movement was felt in it. Kelsh called for a crane and some chains to be provided, but before further support could be attached, the rafter fell and the building collapsed in the way that I have described. Both Kelsh and the other employee fell and were injured. Kelsh suffered multiple injuries from which he died. Magistrate Black found Kelsh to be a well-qualified, experienced and safety-conscious rigger who had
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- considerable experience in the tilt-up panel method of building construction.
10 As a result of investigation by inspectors of the agency known as WorkSafe Western Australia, a complaint was made jointly against Glenpoint and Devcon, charging them that between 19 August 2002, which I understand to be the date upon which Kefo first became involved in the construction process, and the date of the accident, 19 September 2002. They:
" … being employers, 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 s 19(1) of the Occupational Safety and Health Act 1984 and by that contravention caused the death of an employee; contrary to s 19(7) of the Act."
- Detailed particulars were provided. Relevantly, they make clear the allegation that Devcon and Glenpoint were jointly and severally the employer of the manager and employees of Kefo, relying on s 19(4) of the Act.
11 The trial before his Honour Magistrate Black occupied 22 sitting days, from 23 August to 10 September 2004, and from 17 May to 27 May 2005. Evidence was called by the prosecution from a number of witnesses. The prosecution evidence included expert evidence in relation to the failure of the construction method which led to the collapse of the rafters and panels, the injury to Mr Kelsh and ultimately to his death.
12 His Honour reserved his decision, which he delivered on 19 October 2005, giving detailed and well-constructed reasons involving extensive discussion of the law in respect of the application of s 19(4) of the Act, to which I shall return shortly. The complaint of the appellant, a WorkSafe inspector, was dismissed in relation to both Glenpoint and Devcon.
13 It is only in relation to Devcon that the complainant's appeal is brought. There is one ground of appeal. It is in the following terms:
"1. The learned Magistrate erred in law and in fact in deciding that it had not been proved to the necessary degree that Devcon Australia Pty Ltd ('Devcon') was, pursuant to s 19(4) of the Occupational Safety and Health Act 1984 (WA), the deemed employer of the employees of Kefo Steel Erection and
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- Fabrication Pty Ltd ('Kefo') in relation to a relevant matter over which Devcon had control.
Particulars
(i) The only relevant question, in that respect, was whether Devcon in fact had control over the relevant matter, being the provision of adequate lateral restraint to the rafters in Unit 3.
(ii) That question could only be answered by determining whether Devcon in fact had the power to give directions and/or take other action which would have resulted in the provision of adequate lateral restraint to the rafters in Unit 3.
(iii) The existence in fact of such a power to give directions and/or take other action which would have had such a result could be established beyond reasonable doubt as a matter of inference, and was established as the only rational inference, from evidence which demonstrated a power to exercise such control at the Site by Devcon's representatives (Matthew Fuller and Sven Tobiassen) in relation to other matters at the Site. The learned Magistrate erred in fact in not drawing that inference.
(iv) The learned Magistrate erred in law in taking into account for the purpose of determining the question referred to at Particular (i) the relative 'expertise' of the Kefo employees and the Devcon representatives.
(v) In the alternative, if the learned Magistrate did not err in law as alleged in Particular (iv), the error of fact alleged in Particular (iii) occurred in any event."
14 While the prosecution was in the course of trial in the Magistrates Court, extensive amendments were made to relevant portions of the Occupational Safety and Health Act 1984 (WA). Those amendments were made by the Occupational Safety and Health Legislation Amendment and Repeal Act 2004, which was to come into operation on a date or dates fixed by proclamation. Relevant portions of the Act were amended with effect from 1 January 2005. In particular, s 19(3) - (9) were all repealed. However, there was nothing to affect the operation of the saving provisions of the Interpretation Act 1984 (WA), s 37(1), and so
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- the prosecution and subsequent appeal continue to be available and governed by the relevant provisions of s 19 as it was at the time of the alleged offence, August and September 2002. The application for leave to appeal was made under Pt 2 Div 2 of the Criminal Appeals Act2004 (WA) on 16 November 2005, and leave was granted by the Court on 24 November 2005.
15 As has been seen, the contravention of s 19(1) relied upon is the breach of the duty imposed on an employer in the following terms:
"(1) An employer shall, so far as is practicable, provide and maintain a working environment in which his 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, his employees are not exposed to hazards;
… "
17 The first of the issues addressed by his Honour the Magistrate, so far as presently material, was the question whether Devcon was the employer of Mr Kelsh. It was clear that Devcon was not Mr Kelsh's employer in the ordinary sense utilised by the Act in the definition of the term "employer" to be found in s 3(1), which provides that the word "employer" means, so far as material, "a person by whom an employee is employed under a contract of employment". The term "employee" is similarly defined in s 3(1), so far as material, to mean, "a person by whom work is done under
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- a contract of employment". Clearly that was not the relationship between Mr Kelsh and Devcon.
18 The Magistrate was directed to an extended meaning of the terms "employer" and "employee" to be found in s 19(4) which provides:
"(4) For the purposes of this section, where, in the course of a trade or business carried on by him, a person (in this section called 'the principal') engages another person (in this section called 'the contractor') to carry out work for the principal -
(a) the principal is deemed, in relation to matters over which he has control or, but for an agreement between him and the contractor to the contrary, would have had control, to be the employer of -
(i) the contractor; and
(ii) any person employed or engaged by the contractor to carry out or to assist in carrying out the work;
and
(b) the persons mentioned in paragraph (a)(i) and (ii) are deemed, in relation to those matters, to be employees of the principal."
20 The appellant went on to contend that the construction process - the system of work referred to in s 19(1)(a) - was a matter over which Devcon had control, there being no agreement between Devcon and Kefo which deprived Devcon of that control. Therefore, it was asserted, Devcon was deemed, in relation to those matters, the system of work for the erection of the wall panels and the fixing of the rafters, braces and purlins involving the provision of adequate lateral restraint to the rafters, to be the employer of Kefo and its employees or workers, including Mr Kelsh as
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- the supervising rigger. All of those persons were, it was said, deemed to be employees of Devcon in relation to the relevant matters.
21 Whether that was the proper characterisation of the relationship between Mr Kelsh and the respondent was accepted, rightly, to be a matter of fact and the Magistrate examined the evidence relevant to that issue in some detail.
22 Central to his Honour's reasoning were the following findings of fact:
"During the course of the evidence there was no evidence given as to any direction by Tobiassen to Kelsh, or any other Kefo employee, as to the manner in which Kefo employees were to erect either tilt-up panels or steel work relating to the building. There was no such direction given by Fuller. There was direct evidence that Kelsh held, amongst other qualifications, a qualification as an advanced rigger. Hunt also held a qualification as an advanced rigger. Kelsh was an experienced and safety conscious rigger who had considerable experience in erecting buildings using the tilt-up panel method of construction and who had advised Purvey that that experience included buildings with rafter spans of the equivalent of the rafter span of the buildings, and greater. Fuller was not a qualified rigger and in any event had limited experience with the tilt-up panel method of construction. There is no evidence as to whether Tobiassen was or was not qualified in any way as a rigger or indeed his experience, if any, with this method of construction."
23 After a discussion of relevant authorities, to which I shall turn shortly, his Honour made the following findings with respect to the respondent:
"The evidence establishes that Devcon carried on a business of construction. It is also clearly established that during the course of carrying on that business Devcon entered into a contract with Kefo for Kefo to provide labour for ' … the supervision and erection of all structural steel and concrete tilt-up panels …' at the site. Though the contract does not set out any terms or conditions, other than a remuneration rate, clearly Devcon had the ability, and exercised that ability, to direct Kefo and its employees in relation to some matters. Tobiassen directed Kefo and its employees as to where on the site it would commence
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- and carry out its work from time to time. Initially it appears that Kefo was directed to commence erecting tilt-up panels and structural steel for units other than unit 3. Kefo and its employees did so. It was directed by Tobiassen to take down tilt-up panels and structural steel in units 1 and 2 of the buildings. It did so. Implicitly Devcon had the ability, and indeed the duty under the Act, to enforce safety standards in the sense of ensuring, by direction or instruction, that all persons on the site wore and used appropriate safety equipment in the appropriate manner, among other matters."
24 The Magistrate continued by reminding himself, appropriately, that the question was whether, "Devcon controlled the system of work that would have prevented or mitigated the hazard identified, that is ensuring adequate lateral restraint of the steel roof beams during construction; that being the matter over which it had to have control." His Honour observed that the experience of supervision and erection lay in Kefo, in Kelsh and Hunt particularly. That was what Kefo was contracted to provide. On the other hand, his Honour observed, Fuller, the site supervisor for Devcon had no such qualifications and gave no instruction or direction to Kefo or its employees in relation to the manner of erection of the concrete panels and steel work and the restraint of the steel beams which was required. Nor did Tobiassen have any such experience or qualifications or give any such direction or instruction. Finally, his Honour held:
"In my view it is the evidence that Kefo had expertise in relation to the erection of structural steel, in particular in the tilt-up panel method of construction. There is no evidence that Devcon did. It would appear that it was for this reason that Devcon engaged Kefo. In relation to the method of erection of structural steel for the buildings, including lateral restraint thereof during construction the evidence does not, to the necessary degree, establish that Devcon had control of that matter."
- His Honour concluded on that ground that the complaint should be dismissed.
25 The ground of appeal focuses upon this question whether, for the purposes of s 19(1), the respondent was an employer subjected to the duty, a non-delegable duty, imposed by the subsection. It is clear that that question could not be answered by reference to the standard definition contained in s 3. The answer depends upon the application of s 19(4). As to that, I am content to take the approach to the application of the
(Page 11)
- provision which I took in MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355. At 387 - 388 [156] - [157]. Both parties accept that it was appropriate for the Magistrate to apply this approach to the resolution of the question whether the respondent was deemed to be the employer, as his Honour did.
26 One starts therefore with the offence creating the provision, s 19(7). The offence is the contravention of s 19(1). The relevant contravention in this case is that which caused the death of Mr Kelsh, if by the application of s 19(4)(b) he was deemed to be an employee of Devcon. The contravention pleaded by the complaint in its particulars and established by the evidence which caused his death was the collapse of the building.
27 That was the "hazard" as defined in s 3(1), the thing which might result in injury to the person. It was that which, in terms of s 19(1), represented the alleged failure, so far as practicable, to provide and maintain a working environment, a system of work such that Mr Kelsh was not exposed to the particular hazard.
28 When s 19(4) speaks of "matters over which" the principal has control, what the Court is concerned with is matters related to the hazard which it is alleged the principal failed to take practicable steps to eliminate, thereby resulting in a contravention of s 19(1) and the commission of an offence under s 19(7). Therefore, in this case the question in relation to the application of s 19(4) is whether that part of the system of work which involved the hazard of the collapse of the building under construction as a result of the lack of lateral restraint of the steel roof beams was a matter over which Devcon had control, in fact. Did it have control over the manner in which the work was to be performed in this regard?
29 As to the meaning of the word "control" in this context, it is a matter of construction of the Act. I bear in mind the objects of the Act as they are set out in s 5. The terms of the Act are to be construed in a way which will facilitate the accomplishment of those objects. Summarised, they are to promote and secure the safety of persons at work, to protect them against hazards, to assist in ensuring safe work environments and to reduce, eliminate and control the hazards to which people are exposed at work.
30 In Stratton v Van Driel Ltd (1998) 87 IR 151, Byrne J of the Supreme Court of Victoria, considered this question and held, at 157, in relation to the provisions of the Occupational Health and Safety Act of
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- Victoria, the equivalent of s 19, that in a case such as that case (and this case), where no direction was given by the defendant, said to be the employer, to control the activity which was productive of the harm or injury, the principal would:
" … in ordinary speech, be said to have control over the activity in at least two situations. The first is where it had a legal right to direct that [the employee] not perform the work in that way. The second is where, notwithstanding that the person has no right to give it, the employer saw it as within its area of authority to give such a direction and, importantly, the worker would accept it and act upon it. It matters not in either situation that other persons might also have control over the same activity."
32 In the first place, to have control is not at all the same thing as to exercise control. It is the capacity to control with which we are concerned. Secondly, the relevant question for s 19(4) will be whether the defendant is deemed to be the employer in relation to the hazard with which the prosecution is concerned. That will be the relevant matter over which the deemed employer must have control. Otherwise, in relation to the hazard to which the deemed employee was exposed in breach of the duty imposed by s 19(1), the defendant cannot be liable because it will not be an employer within the meaning of the extended definition provided by the Act.
33 The defendant will have control in relation to the relevant hazard, firstly, if he has by reason of the contractual relationship or otherwise, a legal right of control in the sense that he has a right to give directions which must be obeyed. There is no suggestion that that was the case here. Indeed, the contract in the form of the purchase order reserved the right of control in the form of "supervision" to Kefo. That was part of what they were hired to do. But I agree with Byrne J. To find that Kefo had a legal
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- right to control the manner of performance of the work in relation to the hazard which would be created by the failure to provide adequate lateral restraint in the course of fixing the roofing steel rafters would not prevent the conclusion, if the evidence supported it, that the defendant also had control. In this context I agree that control may be joint or several.
34 Absent a legal capacity to control, the Court will be concerned with control in the sense of a capacity to exercise control by giving directions which would be obeyed. The fact of control will be found where a means of control could in fact be employed which would be effective in the sense that a direction given, for example, would be obeyed. Control within the meaning of the Act would not be found, in my opinion, if the proper conclusion from the evidence was that the person or entity whose activities were to be controlled, if given a direction concerned to eliminate or control a relevant hazard, would and could simply decline to follow it.
35 If control in this sense is to be found then, in my opinion, it will be a different question whether the control might or might not in fact have been exercised, and in respect of that question the relative expertise of the deemed employer and the deemed employee will be relevant. But that is a question concerned with whether or not there has been a contravention of s 19(1); whether or not there has been a breach of the duty imposed on the deemed employer; whether the deemed employer has done what was "practicable", as that word is defined in s 3(1), in the circumstances of the case.
36 If control of the manner of fixing the roofing steel work so as to provide adequate lateral restraint to the rafters was to be found against the respondent, it rested in Tobiassen and Fuller, the registered building who had possession of the site on behalf of the respondent, and the respondent's site supervisor, respectively.
37 There was no evidence that either gave any relevant instruction, although there was evidence that Tobiassen was the person who arranged the contractors engaged by the respondent and organised when they came on site. There was evidence that Tobiassen gave instructions about the work to be performed in relation to fabrication of the wall panels. Fuller was also involved. He said he would direct contractors as to the timing of the work to be done, and there was evidence that both Tobiassen and Fuller knew what work Kefo's employees were performing on Unit 3 at the relevant time, in circumstances where, because of the dismantling of Units 1 and 2, additional arrangements in relation to the lateral restraint of
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- rafters would need to be made, although Fuller certainly did not appreciate the significance of this.
38 The Magistrate made findings to the above effect. He found that the respondent, through Tobiassen and Fullen, had the ability and did in fact enforce safety standards on site, for example, in respect of the use of appropriate safety equipment. The appellant had, on 3 September 2002, conducted a site inspection at which a number of matters not related to Kefo's particular expertise and work were required to be rectified. He instructed Tobiassen about that. Tobiassen directed Fuller what needed to be done so that he might supervise the remedial work and Tobiassen was observed to give instructions to persons representing relevant contractors.
39 But I have been referred to no evidence and, having read the transcript, I have found none for myself, to suggest that Tobiassen and Fuller, or either of them, were at any time concerned to instruct an independent contractor about the manner of the performance of their work in respect of matters which fell within the particular expertise for which they had been engaged. Tobiassen did not give evidence and there was nothing in Fuller's evidence to suggest that either man, on behalf of the respondent, saw it as being within their province and authority to instruct contractors or their employees about the manner in which they should perform the expert work for which they were engaged, or that any such instruction by them would be accepted and followed by the subcontractors. The matters raised by the appellant at the previous site inspection which appear to have been the subject of instructions for their rectification included such things as shifting a brace which was located in a site access area, moving a portable toilet from a position where something might fall on it, and moving a panel which was leaning against another.
40 On the other hand, there was evidence from Hunt and other employees of Kefo that Mr Kelsh was the supervisor in charge of the rigging work involved in the erection of structural steel and concrete tilt panels. He gave the instructions as to how the work was to be performed. Their evidence, I think, tends to confirm that had they been given any instructions as to the manner of the performance of their work by Tobiassen and/or Fuller, their response would be to confirm with Kelsh that the direction was to be followed rather than that they would have accepted that they were obliged to do what they were told by Tobiassen or Fuller.
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41 In my opinion, in those circumstances the failure by the Magistrate to conclude that the respondent should be deemed to be the employer of Kefo and the persons, including Kelsh, working for it is not shown to be in error, although as I have said, his Honour did, I think erroneously, have regard to the relative expertise of Kefo and its employees and the representatives of Devcon in resolving the question he was addressing.
42 It is desirable that I deal with the question of disparate expertise between Kefo and Devcon because it was a basis upon which the Magistrate reached his decision about the application of s 19(4) and because it was a matter argued before me. It would be desirable that I deal with it, in any event, because although the Magistrate concluded his reasons at the point of his finding that Devcon was not an employer within the meaning of the Act and therefore was not subject to the duty imposed by s 19(1), I was invited by the appellant to proceed to deal with the question of breach of duty if I should uphold the ground of appeal and allow the appeal against the acquittal of the respondent. Of course, I do not do so, but in case I am wrong in upholding the decision of the Magistrate I should, I think, have something to say upon the question whether Devcon, on the basis that it was deemed to be an employer, was established by the evidence to have contravened s 19(1).
43 As has been seen, this prosecution was concerned with the system of work employed by Kefo and its workers in fixing the structural steel such that the rafters were, at the critical time, deprived of adequate lateral restraint, leading to the collapse of the building so far as it had been constructed, and causing the injury and death of Mr Kelsh. It was in that context that the question posed by s 19(1), whether Devcon had failed so far as was practicable to provide and maintain a working environment - the relevant system of work - in which Kefo and its workers were not exposed to the hazard identified, would be addressed.
44 The answer to that question would turn on what was "practicable" in the provision and maintenance of the working environment. The word "practicable" is 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;
(b) the state of knowledge about -
- (i) the injury or harm to health referred to in paragraph (a);
(ii) the risk of that injury or harm to health occurring; and
(iii) the 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);"
45 The crucial point, for present purposes, would be the notion that the duty to be complied with is to do what is reasonably practicable to eliminate the hazard. The appellant led evidence from an expert engineer, Mr Wanke. There was a considerable debate at trial as to whether his opinion was admissible. The objection taken was that it was not grounded in properly proven primary facts. The Magistrate did not, of course, find it necessary to finally resolve that issue, although I would have thought that Mr Wanke's evidence was admissible.
46 However that may be, for present purposes it is appropriate to note that Mr Wanke gave as his opinion that there were five solutions which might have been adopted which would probably have provided adequate lateral restraint for the rafters. It was his view also that having regard to what was done in the way of support for the rafters, the risk of the accident occurring as it did was high and, of course, as the events themselves demonstrated there was a considerable risk, at least of serious injury if not of death. So the severity of the harm which might result from the occurrence of the accident was considerable. I should also observe that there was no suggestion that the remedial measures proposed by Mr Wanke could not have been employed at a reasonable cost.
47 However, the question in relation to the issue of contravention of s 19(1) would have been whether it was reasonable for those representing Devcon, Tobiassen, the registered builder, and Fuller, the site supervisor, to have inquired into the sufficiency of the system of work employed by Kefo, necessarily taking expert advice as the work progressed to ensure that adequate lateral restraint was provided. It was not that it was impracticable to take measures to eliminate the hazard. The question was whether it was reasonable to require that of the respondent when the measures to be taken all involved the application of expertise which those
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- acting for Devcon lacked, but which was squarely within the special skill and expertise of Kefo and its workers.
48 In relation to s 9(1) of the Mines Safety and Inspection Act 1994 (WA), a section expressed in similar terms to the material parts of s 19(1) of the Occupational Safety and Health Act, in Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998, at 20, Steytler J said:
"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. Moreover, in considering whether it did what it could, so far as was practicable, to ensure that those upon whom it relied in turn exercised reasonable care its own lack of expertise (if any) and the expertise of the independent contractor must be taken into account. 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, who has such knowledge of the matters specified in s9(1)(b) of the Act as might be expected to be had by employers of its kind, 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."
49 In my opinion, those observations would be apt in this case given that the remedial measures to eliminate the particular hazard which led to the accident which caused Mr Kelsh's death were matters squarely within the expertise of Kefo and given that (as the Magistrate found) Kefo represented to Devcon that it had the necessary expertise, as it appeared that it did. It was not unreasonable for Devcon to rely upon Kefo to apply that expertise so as to discharge the duty imposed on Devcon to do what was reasonably practicable to provide and maintain a safe working environment.
50 To put the matter in terms of an alleged contravention of s 19(1) to would not, in my opinion, in this case be open to find that contravention on the basis that to discharge the duty to do what was reasonably
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- practicable, Devcon was required to do more than to rely upon the known expertise of Kefo. Had I been required by a conclusion that the Magistrate fell into error in this case, to deal with the question of breach of duty, I would not have allowed the appeal because, in my view, the circumstances of this case could not sustain the conclusion that the respondent contravened s 19(1).
51 In the final result, in my opinion, the appeal must be dismissed.
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