This document summarizes a 2012 court case from the Western Australia Supreme Court (WASC) regarding an appeal by WorkSafe WA against a lower court decision. The lower court found that Fortescue Metals Group did not fail to provide a safe work environment during Cyclone George in 2007 when numerous workers were injured at a railway camp after pre-fabricated buildings were blown away. The Supreme Court dismissed the appeal, agreeing that ensuring building design standards and safety was the responsibility of independent contractors engaged by Fortescue, and there was nothing more the company could reasonably have done.
This document summarizes a 2012 court case from the Western Australia Supreme Court (WASC) regarding an appeal by WorkSafe WA against a lower court decision. The lower court found that Fortescue Metals Group did not fail to provide a safe work environment during Cyclone George in 2007 when numerous workers were injured at a railway camp after pre-fabricated buildings were blown away. The Supreme Court dismissed the appeal, agreeing that ensuring building design standards and safety was the responsibility of independent contractors engaged by Fortescue, and there was nothing more the company could reasonably have done.
This document summarizes a 2012 court case from the Western Australia Supreme Court (WASC) regarding an appeal by WorkSafe WA against a lower court decision. The lower court found that Fortescue Metals Group did not fail to provide a safe work environment during Cyclone George in 2007 when numerous workers were injured at a railway camp after pre-fabricated buildings were blown away. The Supreme Court dismissed the appeal, agreeing that ensuring building design standards and safety was the responsibility of independent contractors engaged by Fortescue, and there was nothing more the company could reasonably have done.
This document summarizes a 2012 court case from the Western Australia Supreme Court (WASC) regarding an appeal by WorkSafe WA against a lower court decision. The lower court found that Fortescue Metals Group did not fail to provide a safe work environment during Cyclone George in 2007 when numerous workers were injured at a railway camp after pre-fabricated buildings were blown away. The Supreme Court dismissed the appeal, agreeing that ensuring building design standards and safety was the responsibility of independent contractors engaged by Fortescue, and there was nothing more the company could reasonably have done.
Date and Time: Monday, 3 April 2023 6:17:00PM AEST
Job Number: 194024478
Document (1)
1. Kirwin v Pilbara Infrastructure Pty Ltd
Client/Matter: -None- Search Terms: employer meaning and occupational safety and health Search Type: Terms and Connectors Narrowed by: Content Type Narrowed by AU Cases -None-
WorkSafe WA has lost its appeal against a Magistrates Court decision that Fortescue Metals Group did not fail to provide a safe work environment at a railway camp during Cyclone George in 2007. Numerous workers were injured and one killed when the storm tore pre-fabricated accommodation buildings away from their footings. It was accepted at trial that the buildings did not meet relevant design standards. The court agreed with the magistrate's conclusion that the nature of the hazard and the means to reduce any associated risk fell within the expertise of an independent contractor, not Fortescue. Apart from seeking assurances that buildings had been built to an appropriate standing, there was nothing more Fortescue could reasonably have been expected to do in the circumstances.
Catchwords & Digest
Industrial law — Occupational health and safety — Duties of employers — Duty to do all that is reasonably practicable to ensure safe working environment
Appeal against decision of Magistrates Court of Western Australia (WAMC).
Cyclone hit respondents' railway camp.
Workers took shelter in pre-fabricated accommodation buildings.
Winds caused buildings to pull away from footings and, as consequence, numerous workers injured and one killed.
Subsequent investigation revealed that buildings did not meet relevant design standards.
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Respondents charged under (WA) Occupational Health and Safety Act 1984 with failing to provide and maintain working environment which did not expose workers to hazards.
Claimed had no expertise in designing and building work camps and had contracted others to do work and had relied on contractors to meet necessary standards.
WAMC not satisfied that respondents had failed to do all they reasonably could to protect workers from hazards and dismissed charges.
Appellant WorkSafe claimed WAMC erred in finding that respondent reasonably relied on expertise of contractors.
Claimed WAMC erred in relying on respondents' reasonable assumptions.
Established issue of design and of ensuring that buildings were checked by appropriately qualified engineers were matters that were taken into account when respondents engaged contractors.
Established fact that contractors did not do what respondents expected them to did not lead to conclusion that respondents failed in their duty.
Established nature of hazard and means to reduce risk of harm fell within expertise of contractors.
Established, other than seek assurances that buildings had been built to appropriate standards, nothing more that respondents could reasonably have been expected to do.
Established WAMC's conclusions were open on evidence.
Appeal dismissed.
Litigation History
Kirwin v Pilbara Infrastructure Pty Ltd 7/9/2012
WASC
[2012] WASC 99 (S); BC201208924
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Related
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[2022] NSWDC 89; BC202240139
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NSWDC
[2020] NSWDC 765; BC202041182
Cited
SafeWork NSW v Assign Blue Pty Ltd 7/12/2020
NSWDC
[2020] NSWDC 756; BC202041167
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SafeWork NSW v McConnell Dowell 6/11/2020
NSWDC Constructors (Aust) Pty Ltd (No 2)
[2020] NSWDC 668; BC202041041
Cited
D'Souza v Barclays Building Services (WA) Pty 19/6/2020
WADC Ltd
[2020] WADC 87 at [572] ;
BC202040506at [572] Cited
SafeWork NSW v BOC Ltd 30/4/2020
NSWDC
Simon Di Rosso Page 4 of 7 Kirwin v Pilbara Infrastructure Pty Ltd
[2020] NSWDC 156; BC202040249
Cited
SafeWork NSW v Investa Asset Management Pty 25/3/2019
NSWDC Ltd
[2019] NSWDC 76; BC201940139
Cited
Nash v Resource Pacific Pty Ltd (No 3) 2/2/2018
NSWSC
[2018] NSWSC 45; BC201800628
Considered
Tower v Wehrmann 24/2/2017
WASC
[2017] WASC 48; BC201701458
Considered
Publications referring to this case
Engaging Expert Contractors: The Work Health and Safety
Obligations of the Business or Undertaking (2014) 27 AJLL 57
Cases considered by this case
Laing O'Rourke (BMC) Pty Ltd v Kirwin 17/5/2011
WASCA
[2011] WASCA 117 at [31]-[32] ;
BC201103077at [31]-[32] Considered
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Tobiassen v Reilly 29/1/2009
WASCA
(2009) 178 IR 213 at [59], [61], [62] ;
[2009] WASCA 26at [59], [61], [62];
BC200900189at [59], [61], [62]
Considered
Reilly v Devcon Australia Pty Ltd 17/4/2008
WASCA
(2008) 36 WAR 492; (2008) 173 IR 307; [2008] WASCA 84; BC200802582 Considered
Reilly v Devcon Australia Pty Ltd 11/5/2007
WASC
[2007] WASC 106; BC200703629
Cited
Morrison v De Bono 9/12/2005
WASC
(2005) 147 IR 454 at [26]-[28] ;
[2005] WASC 271at [26]-[28];
BC200510588at [26]-[28] Distinguished
Silent Vector Pty Ltd v Shepherd 15/12/2003
WASCA
[2003] WASCA 315 at [11]-[12], [23], [25] ;
BC200307881at [11]-[12], [23], [25]
Considered
Wylie v South Metropolitan College of TAFE 7/3/2003
WASCA
[2003] WASCA 34 at [45] ;
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BC200300965at [45] Cited
Shepherd v Co-operative Bulk Handling Ltd 14/12/2001
WASCA
[2001] WASCA 413 at [55] ;
BC200107984at [55] Cited
Complete Scaffold Services Pty Ltd v Adelaide 18/6/2001
SASCFC Brighton Cement Ltd
[2001] SASC 199; BC200103252
Cited
Hamersley Iron Pty Ltd v Robertson 2/10/1998
WASC
BC9805219 Considered
R v Associated Octel Co Ltd United Kingdom
19/7/1994 - [1994] 4 All ER 1051; [1995] ICR 281 ; [1994] IRLR 540 Considered
Chugg v Pacific Dunlop Ltd 3/10/1990
HCA
(1990) 170 CLR 249; (1990) 95 ALR 481; (1990) 64 ALJR 599; (1990) 50 A Crim R 85; (1990) 34 IR 412; [1990] HCA 41; BC9002934 Cited
Interstruct Pty Ltd v Wakelam 15/8/1990
WASC
(1990) 3 WAR 100 at [108]-[109]
Cited
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Legislation considered by this case
Legislation Name & Jurisdiction Provisions
Occupational Safety and Health Act s 19(1), s 19A, s 23D, s 23G(2), s 23H(2), s 3, s 5 1984 (WA)
