Reilly v Devcon Australia Pty Ltd

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.