Tobiassen v Reilly

Case [2009] WASCA 26

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   TOBIASSEN -v- REILLY [2009] WASCA 26

CORAM:   STEYTLER P

MILLER JA
NEWNES AJA

HEARD:   6 NOVEMBER 2008

DELIVERED          :   29 JANUARY 2009

FILE NO/S:   CACR 82 of 2008

BETWEEN:   SVEIN GERHARD TOBIASSEN

Appellant

AND

PETER JOHN PATRICK REILLY
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :EM HEENAN J

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

File No  :SJA 1122 of 2005

Catchwords:

Occupational health and safety - Occupational Safety and Health Act 1984 (WA) - Section 21(1), s 23(3a)(a) - Meaning of 'practicable' - Section 21(1) - Meaning of 'work in which he was engaged' - Section 22(1) - Meaning of 'control of the workplace' - Application of s 23(3a) - Whether appellant was 'self-employed person' - Principles to be applied

Legislation:

Mines Safety and Inspection Act 1994 (WA), s 9(1)(a)
Occupational Health, Safety and Welfare Act 1986 (SA), s 19(1)
Occupational Safety and Health Act 1984 (WA), s 21(1), s 22(1)(a), s 23(3a)
Occupational Safety and Health Regulations 1996 (WA), reg 3.88(1)(b)

Result:

Appeal allowed in part

Category:    A

Representation:

Counsel:

Appellant:     Mr M H Zilko SC & Mr J T Bishop

Respondent:     Mr G T W Tannin SC & Ms L A Eddy

Solicitors:

Appellant:     Hotchkin Hanly

Respondent:     State Solicitor for Western Australia

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

Australian Mutual Provident Society v Allan (1978) 18 ALR 385

Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199

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

Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597

Personnel Contracting Pty Ltd t/as Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers [2004] WASCA 312

R v ACR Roofing Pty Ltd [2004] VSCA 215; (2005) 11 VR 187

R v Associated Octel Ltd [1994] 4 All ER 1051

R v Foster (1952) 85 CLR 138

Reilly v Devcon Australia Pty Ltd [2008] WASCA 84

Reilly v Tobiassen [2008] WASC 6

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681

Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

  1. JUDGMENT OF THE COURT:    The appellant appeals, with leave, against his conviction on three charges under the Occupational Safety and Health Act 1984 (WA) (the Act) and two charges under the Occupational Safety and Health Regulations 1996 (WA) (the Regulations).

  2. The appellant was acquitted of each of the charges in the Magistrates Court but 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.

Background

  1. The charges of which the appellant was…

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Tobiassen v Reilly [2009] WASCA 26
Case
[2009] WASCA 26
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CaseChat Overview and Summary

Tobiassen appeals against his conviction on several charges under the Occupational Safety and Health Act 1984 (WA) and the Occupational Safety and Health Regulations 1996 (WA). The appeal follows a successful appeal by the respondent in the Magistrates Court, which led to the appellant's conviction. The charges relate to a fatal accident that occurred during the construction of a building in Myaree, where a worker died due to the collapse of a building under construction. The appellant was appointed as the registered builder by Devcon Australia Pty Ltd to manage and supervise the construction work. The primary legal issues the court had to address were the interpretation of specific sections of the Occupational Safety and Health Act, particularly the meaning of 'practicable', 'work in which he was engaged', and 'control of the workplace'. The court also had to determine whether the appellant was considered a 'self-employed person' under the Act and apply the relevant principles accordingly.

The court examined the specific duties of the appellant as outlined in the agreement with Devcon, which included active management, scheduling, supervision of building work, and control of the quality of materials and workmanship. The court considered the contractual obligations and the appellant's role in ensuring that the construction work was carried out in accordance with plans and specifications. The interpretation of the Act and the application of the relevant sections were central to the court's decision. The court assessed whether the appellant had the control necessary over the workplace to be held responsible under the Act and whether the measures he took were reasonably practicable to ensure safety. The court also evaluated whether the appellant's status as a registered builder and his contractual duties met the criteria of a'self-employed person' under the Act.

The court found that the appellant had sufficient control over the workplace and the necessary duty of care to be held responsible under the Occupational Safety and Health Act. It concluded that the appellant's actions did not meet the standard of what was reasonably practicable to ensure safety and that his status as a registered builder with specific contractual duties qualified him as a'self-employed person'. Therefore, the appeal was dismissed, and the convictions were upheld. The court's decision was based on the interpretation of the statutory provisions and the application of the relevant principles to the facts of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: The appellant appeals, with leave, against his conviction on three charges under the Occupational Safety and Health Act 1984 (WA) (the Act) and two charges under the Occupational Safety and Health Regulations 1996 (WA) (the Regulations). The appellant was acquitted of each of the charges in the Magistrates Court but 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. The charges of which the appellant was convicted arise out of a fatal accident on 18 September 2002 in which Mr Desmond Kelsh died as a result of the collapse of a building under construction in Myaree, south of Perth. The building under construction consisted of a series of showrooms. The lessor of the land and the developer was Glenpoint Nominees Pty Ltd (Glenpoint). Devcon Australia Pty Ltd (Devcon) was the project manager and responsible for the overall construction at the site. Devcon arranged for the supply of labour and materials for the construction, although Glenpoint paid for the labour and materials supplied. The Builders' Registration Act 1939 (WA) required that the building work be 'managed and supervised' by a registered builder. The appellant was appointed by Devcon as the registered builder for that purpose. The contractual duties of the appellant were set out in an agreement dated 1 July 2002 made between the appellant and Devcon. Under the agreement, among other things, the appellant (defined as the 'Builder') was 'engaged to actively manage, schedule and supervise the building work' to ensure all trades carried out their work in sequence, and to control the quality of materials and workmanship. He expressly undertook that the building work would be completed in accordance with the plans and specifications. Mr Kelsh was a rigger and the principal of Kefo Steel Erection & Fabrication Pty Ltd (Kefo), which had been engaged by Devcon to erect the concrete panels and structural steel used in the construction. The showrooms were being constructed using precast concrete tilt-up panels (concrete panels). The construction process involved a concrete slab being poured and concrete panels then being cast and positioned around the slab. The concrete panels would then be erected to form the walls of the building and structural steel rafters (rafters) would be fixed to the top of the panels. Purlins would then be attached to the rafters and, in turn, the roof would be attached to the purlins. When the concrete panels were ready to be erected, lifting equipment would be attached to each concrete panel to lift it into a vertical position. Temporary braces would then be fixed to each newly erected concrete panel. Once the concrete panels had been erected on opposite sides of the slab, the rafters, which spanned the distance between them, would be attached to the concrete panels. Each concrete panel was approximately 10 m in height and 5 m in width. The distance between the concrete panels forming opposing walls was approximately 41 m. The rafters which spanned that distance were in the form of rolled steel joists (or 'RSJs') or I-beams. Each was approximately 60 cm in height and 20 cm in width at the top and bottom, and weighed approximately 5.5 tonnes.

Ratio Decidendi

Legal Principle Established

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