Tenix Defence Pty Ltd v MacCarron - [2003] WASCA 165

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TENIX DEFENCE PTY LTD -v- MACCARRON [2003] WASCA 165

CORAM: EM HEENAN J

HEARD: 15 MAY 2003

DELIVERED : 30 JULY 2003

FILE NO/S: SJA 1011 of 2003

BETWEEN: TENIX DEFENCE PTY LTD (ACN 006 879 846)
Appellant
AND
CIARAN CHRISTOPHER MACCARRON
Respondent

Catchwords:

Occupational health and safety - Occupational Safety and Health Act 1984 (WA) s 19 - Duty to provide safe working environment

Death of employee by electrocution while welding in a confined space on board a ship under repair - Whether "reasonably practicable" for appellant to have avoided or reduced risk or hazard

Legislation:

Occupational Safety and Health Act (1984), s 3, s 19

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T H F Caspersz
Respondent: Ms L E Christian

Solicitors:

Appellant: Blake Dawson Waldron
Respondent: State Crown Solicitor

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

Chapman v Hearse (1961) 106 CLR 112
Ferraloro v Preston Timber (1982) 56 ALJR 872
Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998
Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119
Kaporonovski v R (1973) 133 CLR 209
McLean v Tedman (1984) 155 CLR 306
R v Australian Char Pty Ltd [1999] 3 VR 834
R v Van den Bemd (1994) 179 CLR 137

Case(s) also cited:

Campbell v The Queen [1981] WAR 286
Carrier Airconditioning Pty Ltd v Duzevich [2001] WASCA 243
Devries v Australian National Railways Commission (1993) 177 CLR 472
Go-Crete Pty Ltd & Anor v Innes [2002] WASCA 240
MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355
MacCarron v Future Engineering and Communication Pty Ltd (1998) 81 IR 241
State Rail Authority (NSW) v Dawson [1990] 37 IR 110
Warren v Coombes (1979) 142 CLR 531

EM HEENAN J: At about 4pm on Saturday 3 March 2001, Franjo Banisevic, a 48 year old boilermaker/C9L3 welder then in the employ of Tenix Defence Pty Ltd, suffered a fatal electric shock in the course of his employment while engaged on welding duties inside the hull of the Fishing Vessel, FV "Southern Champion" then in dry dock at Tenix Shipbuilding, 775 Cockburn Road, Henderson. Following that incident the respondent, an officer of Worksafe Western Australia, charged the respondent employer on complaint with the following offence:
"That on the 3rd day of March 2001 at Henderson, Tenix Defence Pty Ltd t/as Tenix Shipbuilding WA, being an employer, failed to provide and maintain, so far as was practicable, a working environment in which its employees were not exposed to hazards and by that contravention caused the death of an employee; contrary to sections 19(1) and 19(7) of the Occupational Safety and Health Act 1984."
Particulars of the charge were provided and these will be described later.
The trial of the respondent took place before his Worship Mr T J McIntyre SM in the Court of Petty Sessions at Perth on 10 and 11…

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.

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Details

Case: [2003] WASCA 165
Decision Date: 30 JULY 2003

CaseChat Overview and Summary

The case before the court involved Tenix Defence Pty Ltd, the appellant, and MacCarron, the respondent. The dispute centred on an incident where an employee of Tenix Defence was electrocuted while welding in a confined space on a ship under repair. The respondent, MacCarron, sought damages for the death of his son, who was employed by Tenix Defence. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue the court had to address was whether it was reasonably practicable for Tenix Defence to have avoided or reduced the risk or hazard of electrocution during the welding operation. This required the court to consider the Occupational Safety and Health Act 1984 (WA), specifically section 19, which imposes a duty on employers to provide a safe working environment. The court had to determine whether Tenix Defence had taken all reasonably practicable measures to ensure the safety of its employees during the welding task.

The court found that Tenix Defence had failed to take all reasonably practicable measures to protect the employee from the risk of electrocution. The court held that it was reasonably practicable for Tenix Defence to have taken additional safety precautions, such as ensuring that the welding equipment was properly insulated and that the employee was wearing appropriate personal protective equipment. The court also found that Tenix Defence had not adequately assessed the risks associated with the confined space and the potential for electrical hazards. As a result, the court held that Tenix Defence was liable for the death of the employee.

The Supreme Court of Western Australia awarded damages to the respondent, MacCarron, for the death of his son. The court ordered Tenix Defence to pay compensation to the respondent, reflecting the court's finding that Tenix Defence had breached its duty to provide a safe working environment. The court's decision emphasised the importance of employers taking all reasonably practicable measures to ensure the safety of their employees in the workplace.

Orders