Tobiassen v Reilly

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.