Wisdom of Solomon not required of employers

Background

The decision of the Western Australian Court of Appeal in Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 concerned appeals from two charges against Laing O’Rourke which were tried before a magistrate following the passage of Cyclone George across the Pilbara in March 2007.

The appellant was engaged by Pilbara Infrastructure Pty Ltd (TPI) to undertake track and bridge work in the construction of a railway line between iron ore mining and processing facilities at a mine in the Pilbara and port facilities at Port Hedland. The project management team with responsibility for planning and executing the project was known as “Team 45” and another company (NT Link) was engaged to construct village facilities known as “Rail Camp 1”.

Rail Camp 1 was largely comprised of residential units known as “dongas”. It was accepted that the appellant had not been responsible for, or in any way associated with construction of the dongas, which were built by NT Link.

The building work was required to be done in accordance with plans and specifications approved by the local authority, however, the plans and specifications approved by the local authority contained a significant error. The buildings were supposed to be able to withstand a wind load related to the local region and the terrain, but the specifications included an inappropriate and unsatisfactory wind load.

Tropical Cyclone George was at its maximum intensity when it crossed the coast 50 kilometres northeast of Port Hedland at 10 pm on 8 March 2007. At approximately 4 pm on 8 March, a meeting took place at the camp, and those present were advised to take sufficient food and water to their dongas and remain there until advised.

The cyclone passed over the camp in the early hours of the morning of 9 March 2007. The majority of dongas survived intact, however, winds caused the concrete footings of some of the dongas to become dislodged and some of the steel tie rods were pulled free, causing some dongas to lift and pull away from their foundations. Some blew against other dongas, and others were overturned.

A number of people were injured, including a Mr Dwyer, an employee of the appellant. An employee of one of the appellant’s subcontractors, Mr Richards, was also injured. The appellant was charged with two offences, namely:

• being an employer who failed, so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards by failing to provide and maintain adequate safety procedures to be observed in the event of a cyclone, contrary to s 19(1) of the Occupational Health and Safety Act 1984 (WA)
• being a principal who in the course of trade or business engaged a contractor failed, in so far as was practicable, to provide and maintain a working environment in which any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned was not exposed to hazards by failing to provide adequate safety procedures to be observed in the event of a cyclone, contrary to ss 19(1), 19A(3) and 23(D) of the Act.  

Legal Principles

The court stressed the duty imposed on an employer by s 19(1) is not an absolute duty (Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249). The court also noted the comments of Harper J in Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 at 123-124:

The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The Courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.

Steytler J’s following observations in Hamersley Iron Pty Ltd v Robertson (unreported, WASC, Library No 908573, 2 October 1998) p 22 was also quoted with approval:

Here, the personal duty imposed upon the employer is, as I have said, that of providing a safe workplace, so far as is practicable. If that, in turn, requires the employer to call upon expertise which it does not itself have then there is no reason why it should not do so and, indeed, every reason why it should … If the task undertaken by the independent contractor is one which demonstrably falls within its area of expertise and outside that of the employer and the task reasonably appears to the employer to have been carefully and safely performed by the independent contractor, then it would ordinarily be difficult to conclude that the employer had breached the duty put upon it by the Act. It would not, in circumstances of that kind, ordinarily have been practicable for it to have done more.

Magistrate Court Proceedings

The prosecution case before the magistrate was that the appellant contravened s 19 because its plan for dealing with the risk of harm from cyclones involved employees sheltering in the dongas at Rail Camp 1, when the dongas were not a safe refuge in the event of a cyclone of the kind experienced. The prosecution contended dongas were not a safe refuge because they had not been designed to withstand cyclonic forces applicable to the region and their construction in relation to the foundations was defective.

In relation to cyclone procedures, the magistrate found at the relevant time the appellant’s plan, in conjunction with the procedures adopted by Team 45, included returning to the camp to take safe refuge in dongas. The taking of refuge within accommodation approved by a local authority accorded with the views of the experts as to appropriate safety measures.

Accordingly, the crucial issue (and subsequently on appeal) was whether it was sufficient, having regard to the nature of the statutory duty, for the appellant to assume the dongas provided a safe refuge.

The magistrate accepted the appellant employer’s two most senior personnel both assumed the dongas were safe. Both thought the plan for the camp had been approved by local authorities and the relevant building regulations had been satisfied.

Two experts for the appellant opined it was reasonable to assume that if the accommodation had been approved by the relevant local authority that it could be assumed it was a safe refuge.

The magistrate concluded there was nothing that should have prompted the appellant to have the suitability of the accommodation assessed and it was reasonable for the appellant to assume the donga accommodation provided an appropriate refuge. His Honour entered judgments of acquittal.

Appeal to a single justice of the Supreme Court

Murray J held that the appellant’s duty under s 19 required it to inquire and investigate for itself, including by taking engineering advice if necessary, whether the dongas had been properly designed and built to withstand the effect of a cyclone such as that which was encountered and that the appellant, by inquiries and investigations, could have ascertained the dongas were not suitable.

His Honour therefore found the appellant guilty of the offences and imposed a global fine of $90,000.

Appeal to the Court of Appeal

The two main grounds for appeal were:

• the appellant contended the judge’s finding of breach amounted, in effect, to the imposition of an absolute duty, and the statutory duty only required an employer to do all that was practicable
• his Honour erred in concluding the appellant breached s 19 insofar as his Honour found the appellant could, including by obtaining engineering advice, have ascertained the dongas were not suitable. 

Murphy JA (with whom Martin CJ and Mazza J agreed) found that by concluding the appellant was required to carry out its own inquiries and investigations, including by obtaining engineering advice into the design and fabrication of the dongas for the purpose of assessing their suitability for cyclonic conditions, his Honour ascribed a content to the duty under s 19 which went beyond what was reasonably practicable in the circumstances.

His Honour stated the taking of refuge in an appropriate shelter was generally regarded as the safest way to avoid injury in cyclonic conditions and noted there was nothing in the magistrate’s findings to indicate to the appellant prior to the accident that the donga accommodation in Rail Camp 1 was unsuitable as a safe refuge.

Accordingly Murphy JA found his Honour erred in finding it was proved beyond reasonable doubt, when viewed prospectively rather than retrospectively, that in having procedures for dealing with cyclones involving colour-coded alerts and taking refuge in shire-approved accommodation the appellant had not, so far as reasonably practicable, provided a working environment in which its employees were not exposed to hazards created by cyclonic weather conditions.

Murphy JA also found the judge erred in that the prosecution did not establish any measures or means by which it could be said that it was practicable for the appellant to ascertain, including by obtaining engineering advice, the dongas were not properly designed and built to withstand relevant cyclonic conditions.

Conclusion