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Reilly v Tobiassen

Reilly v Tobiassen

Case [2008] WASC 6 18 January 2008

Appeal

Occupational Health and Safety Act

Occupational Health and Safety

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: REILLY -v- TOBIASSEN [2008] WASC 6

CORAM: EM HEENAN J

HEARD: 14 & 15 MARCH 2007

DELIVERED : 18 JANUARY 2008

FILE NO/S: SJA 1122 of 2005

BETWEEN: PETER JOHN PATRICK REILLY
Appellant
AND
SVEIN GERHARD TOBIASSEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P G MALONE
File No  :PE 49377 of 2003, PE 49378 of 2003, PE 49379 of 2003, PE 49380 of 2003, PE 49381 of 2003

Catchwords:

Occupational health and safety - Occupational Health and Safety Act - Appeal from Magistrate - Employee or selfemployed person - Control of workplace - A person who constructed a building - Failed so far as was practicable - Caused the death of a person - Workplace with multiple contractors and trades - Role of registered builder

Legislation:

A New Tax System (Australian Business Number) Act 1999 (Cth)
A New Tax System (Goods & Services Tax) Act 1999 (Cth)
Builders' Registration Act 1939 (WA)
Criminal Appeals Act 2004 (WA), s 9
Criminal Code (WA)
Evidence Act 1906 (WA)
Occupational Safety & Health Act 1984 (WA)
Occupational Safety & Health Regulations 1996 (WA)
Sentencing Act 1995 (WA)

Result:

Appeals allowed

Category: B

Representation:

Counsel:

Appellant: Mr G T W Tannin SC & Mr T C Russell
Respondent: Mr M H Zilko SC & Mr J T Bishop

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Hotchkin Hanly

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

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Connolly v Meagher (1906) 3 CLR 682
Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Ertech Pty Ltd v Reid (Unreported, WASC, Library No 9174, 6 December 1991)
Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998)
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
Kondis v State Transport Authority (1984) 154 CLR 672
MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61; (2001) 23 WAR 355
Morrison v De Bono [2005] WASC 271; (2005) 147 IR 454
Narich Pty Ltd v Commissioner of Pay‑roll Tax (NSW) [1983] 2 NSWLR 597
Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Personnel Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] WASCA 312; (2004) 141 IR 31
Phillips v Carbone (No 2) (1992) 10 WAR 169
R v Australian Char Pty Ltd [1999] 3 VR 834
R v Foster (1952) 85 CLR 138
R v Hull (No 2) [1902] St R Qd 53
R v Kiripatea [1991] 2 Qd R 686
Reardon Smith Line Ltd v Hansen‑Tangen [1976]…

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 Tobiassen

Details

AGLC: Reilly v Tobiassen [2008] WASC 6
Case: [2008] WASC 6
Decision Date: 18 January 2008

CaseChat Overview and Summary

The parties involved in the case were Reilly, the appellant, and Tobiassen, the respondent. The dispute revolved around the classification of Reilly as either an employee or a self-employed person and his responsibility under the Occupational Health and Safety Act for the death of a person in a workplace involving multiple contractors and trades. The case was heard in the court of appeal.

The legal issues before the court were whether Reilly was an employee or a self-employed person, whether the construction of the building was reasonably practicable, and whether Tobiassen was liable for the death under the Occupational Health and Safety Act. The court needed to determine the extent of Tobiassen's responsibility for ensuring the safety of the workplace and whether he had failed to take all reasonably practicable measures to prevent the death.

The court found that Reilly was a self-employed person, not an employee, and that Tobiassen had failed to take all reasonably practicable measures to prevent the death. The court held that Tobiassen was liable for the death under the Occupational Health and Safety Act. The court reasoned that Tobiassen, as the registered builder, had a duty to ensure the safety of the workplace and that he had not taken all reasonably practicable measures to prevent the death. The court concluded that Tobiassen was liable for the death and that the appeals should be allowed.

Orders

Orders of the court

1. Appeals allowed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Reilly v Tobiassen [2008] WASC 6

Most Recent Citation

Reilly v Devcon Australia Pty Ltd [2008] WASCA 84

Cases citing this decision · 2 of 2 shown

Tobiassen v Reilly
[2009] WASCA 26 Para 2

…an appeal by the respondent to a single judge of this court was successful and the appellant was convicted of each of the charges: Reilly v Tobiassen [2008] WASC 6. It is against the latter decision that this appeal is brought.…
Reilly v Devcon Australia Pty Ltd
[2008] WASCA 84 Para 13

…Counsel for the appellant placed considerable reliance upon the judgment of EM Heenan J in Reilly v Tobiassen [2008] WASC 6. That case involved a successful appeal against the acquittal of Mr Tobiassen, by a different magistrate, on charges arising out of his overall supervision of the Myaree site. None of the c…

View all 2 citing cases →

Cases cited in this decision · 21 of 21 shown

Morrison v De Bono
[2005] WASC 271 Para 1

…h a duty upon any person who has 'to any extent' control, of a workplace, therefore encompassing 'various degrees of control': see Morrison v De Bono [2005] WASC 271; (2005) 147 IR 454 [12] (Le Miere J).…
Personnel Contracting v Construction, Forestry, Mining and Energy Union
[2004] WASCA 312 Para 5

…ndent contractor. These included Hollis v Vabu Pty Ltd and Personnel Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] WASCA 312; (2004) 141 IR 31. In particular, the respondent relied on cases which emphasised the importance of the control test to determine whether or not the…
Silent Vector Pty Ltd v Shepherd
[2003] WASCA 315 Para 6

…in his position. For this proposition the respondent relied upon Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, 261; Silent Vector Pty Ltd v Shepherd [2003] WASCA 315 [12]; and Wylie v South Metropolitan College of TAFE [2003] WASCA 34 [45].…
Wylie v South Metropolitan College of TAFE
[2003] WASCA 34 Para 6

…v Pacific Dunlop Ltd (1990) 170 CLR 249, 261; Silent Vector Pty Ltd v Shepherd [2003] WASCA 315 [12]; and Wylie v South Metropolitan College of TAFE [2003] WASCA 34 [45].…
Ermogenous v Greek Orthodox Community of SA Inc
[2002] HCA 8 Para 19

…the relationship and, where it is not, the totality of the relationship needs to be considered: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 [81] (Kirby J, citing Hollis v Vabu Pty Ltd [45]).…
Hollis v Vabu Pty Ltd
[2001] HCA 44 Para 3

…8, 150 ‑ 151; TNT Worldwide Express (NZ) Ltd v Cunningham (1993) 3 NZLR 681, 692; both of which were cited, with approval, in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 [58]. Compare the decision of the Privy Council in Narich Pty Ltd v Commissioner of Pay‑roll Tax (NSW) [1983] 2 NSWLR 597, 606.…
MacCarron v Coles Supermarkets Australia Pty Ltd
[2001] WASCA 61 Para 8

…jectively knowable (as distinct from unknowable in the 'wholly surprising' sense used by Murray J in MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61; (2001) 23 WAR 355 [163]).…
Northern Sandblasting Pty Ltd v Harris
[1997] HCA 39 Para 6

…thority v General Jones Pty Ltd (1994) 179 CLR 520; Kondis v State Transport Authority (1984) 154 CLR 672; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 332 ‑ 333.…
Burnie Port Authority v General Jones Pty Ltd
[1994] HCA 13 Para 6

…f course, that is not the only relationship which will give rise to a 'non‑delegable' duty of care: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Kondis v State Transport Authority (1984) 154 CLR 672; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 332 ‑ 333.…
Chugg v Pacific Dunlop Ltd
[1990] HCA 41

…Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Connolly v Meagher (1906) 3 CLR 682 Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 Ermogenous v Greek Orthodox Community…
Stevens v Brodribb Sawmilling Co Pty Ltd
[1986] HCA 1 Para 5

…concerned was an employee or independent contractor: Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561, 571; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 27, 29. This, in turn, led on to submissions, advanced by counsel for the respondent, that there were many indicia of control which, in the present…
Kondis v State Transport Authority
[1984] HCA 61 Para 6

…give rise to a 'non‑delegable' duty of care: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Kondis v State Transport Authority (1984) 154 CLR 672; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 332 ‑ 333.…
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales
[1982] HCA 24 Para 4

…t may be examined in order to establish the factual matrix in which the parties contracted: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; Reardon Smith Line Ltd v Hansen‑Tangen [1976] 1 WLR 989, 997.…
Darling Island Stevedoring and Lighterage Co Ltd v Long
[1957] HCA 26 Para 8

…In this regard, the point is illustrated by the decision in Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36, where it was held that the obligations created by reg 31 of the Navigation (Loading and Unloading) Regulations were cast upon the person actually exercising control over the unloading…
Zuijs v Wirth Brothers Pty Ltd
[1955] HCA 73 Para 5

…the control test to determine whether or not the person or entity concerned was an employee or independent contractor: Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561, 571; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 27, 29. This, in turn, led on to submissions, advanced by counsel for the responden…
R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd
[1952] HCA 10 Para 3

…of the relationship was a matter of substance and not of form. There is ample authority for this approach, which I unhesitatingly accept: R v Foster (1952) 85 CLR 138, 150 ‑ 151; TNT Worldwide Express (NZ) Ltd v Cunningham (1993) 3 NZLR 681, 692; both of which were cited, with approval, in Hollis v Vabu Pty Ltd [20…
Connolly v Meagher
[1906] HCA 20 Para 2

…second or subsequent conviction arising from the same act or omission: R v Hull (No 2) [1902] St R Qd 53, 57 ‑ 58 (Griffith CJ); Connolly v Meagher (1906) 3 CLR 682; and R v Kiripatea [1991] 2 Qd R 686. See, also, Phillips v Carbone (No 2) (1992) 10 WAR 169.…
[1968] AC 107
[1968] AC 107 Para 9

…s the reasons of Dawson, Toohey and Gaudron JJ adopted (at 262), with approval, the observations of Lord Upjohn in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, 125 ‑ 126, it is also apparent that the duty, resting upon the employer or other person obliged to exercise care, is 'with his experts to consider t…
[1976] 1 WLR 989
[1976] 1 WLR 989 Para 4

…which the parties contracted: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; Reardon Smith Line Ltd v Hansen‑Tangen [1976] 1 WLR 989, 997.…
Ltd v Cunningham
(1993) 3 NZLR 681 Para 3

…le authority for this approach, which I unhesitatingly accept: R v Foster (1952) 85 CLR 138, 150 ‑ 151; TNT Worldwide Express (NZ) Ltd v Cunningham (1993) 3 NZLR 681, 692; both of which were cited, with approval, in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 [58]. Compare the decision of the Privy Counci…
Codelfa Construction Pty Ltd v State Rail Authority (Nsw)
Para 4

…act, the aim, object and commercial purpose of the contract may be examined in order to establish the factual matrix in which the parties contracted: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; Reardon Smith Line Ltd v Hansen‑Tangen [1976] 1 WLR 989, 997.…

Legislation cited in this decision · 8

Criminal Appeals Act 2004 (WA)
9 2 mentions (from Para 1)
A New Tax System (Australian Business Number) Act 1999 (Cth)
1 mention
Builders' Registration Act 1939 (WA)
1 mention (from Para 5)
Criminal Code (WA) Evidence Act 1906 (WA)
1 mention
Evidence Act 1906 (WA)
1 mention (from Para 1)
Occupational Safety and Health Act 1984 (WA)
1 mention (from Para 1)
Occupational Safety and Health Regulations 1996 (WA)
1 mention (from Para 1)
Sentencing Act 1995 (WA)
1 mention (from Para 2)