REILLY -v- DEVCON AUSTRALIA PTY LTD [2008] WASCA 84 (17 April 2008)

REILLY -v- DEVCON AUSTRALIA PTY LTD [2008] WASCA 84 (17 April 2008) - WASCA 2008 case summary — Zoe

[35]

In the first place, to have control is not at all the same thing as to exercise control. It is the capacity to control with which we are concerned. Secondly, the relevant question for s 19(4) will be whether the defendant is deemed to be the employer in relation to the hazard with which the prosecution is concerned. That will be the relevant matter over which the deemed employer must have control. Otherwise, in relation to the hazard to which the deemed employee was exposed in breach of the duty imposed by s 19(1), the defendant cannot be liable because it will not be an employer within the meaning of the extended definition provided by the Act.

The defendant will have control in relation to the relevant hazard, firstly, if he has by reason of the contractual relationship or otherwise, a legal right of control in the sense that he has a right to give directions which must be obeyed. There is no suggestion that that was the case here. Indeed, the contract in the form of the purchase order reserved the right of control in the form of 'supervision' to Kefo. That was part of what they were hired to do ... To find that Kefo had a legal right to control the manner of performance of the work in relation to the hazard which would be created by the failure to provide adequate lateral restraint in the course of fixing the roofing steel rafters would not prevent the conclusion, if the evidence supported it, that the defendant also had control. In this context I agree that control may be joint or several.

Absent a legal capacity to control, the Court will be concerned with control in the sense of a capacity to exercise control by giving directions which would be obeyed. The fact of control will be found where a means of control could in fact be employed which would be effective in the sense that a direction given, for example, would be obeyed. Control within the meaning of the Act would not be found, in my opinion, if the proper conclusion from the evidence was that the person or entity whose activities were to be controlled, if given a direction concerned to eliminate or control a relevant hazard, would and could simply decline to follow it.

If control in this sense is to be found then, in my opinion, it will be a different question whether the control might or might not in fact have been exercised, and in respect of that question the relative expertise of the deemed employer and the deemed employee will be relevant. But that is a question concerned with whether or not there has been a contravention of s 19(1); whether or not there has been a breach of the duty imposed on the deemed employer; whether the deemed employer has done what was 'practicable', as that word is defined in s 3(1), in the circumstances of the case.

[37]

There was no evidence that either gave any relevant instruction, although there was evidence that Tobiassen was the person who arranged the contractors engaged by the respondent and organised when they came on site. There was evidence that Tobiassen gave instructions about the work to be performed in relation to fabrication of the wall panels. Fuller was also involved. He said he would direct contractors as to the timing of the work to be done, and there was evidence that both Tobiassen and Fuller knew what work Kefo's employees were performing on Unit 3 at the relevant time, in circumstances where, because of the dismantling of Units 1 and 2, additional arrangements in relation to the lateral restraint of rafters would need to be made, although Fuller certainly did not appreciate the significance of this.

The Magistrate made findings to the above effect. He found that the respondent, through Tobiassen and Fuller, had the ability and did in fact enforce safety standards on site, for example, in respect of the use of appropriate safety equipment. The appellant had, on 3 September 2002, conducted a site inspection at which a number of matters not related to Kefo's particular expertise and work were required to be rectified. He instructed Tobiassen about that. Tobiassen directed Fuller what needed to be done so that he might supervise the remedial work and Tobiassen was observed to give instructions to persons representing relevant contractors.

But I have been referred to no evidence and, having read the transcript, I have found none for myself, to suggest that Tobiassen and Fuller, or either of them, were at any time concerned to instruct an independent contractor about the manner of the performance of their work in respect of matters which fell within the particular expertise for which they had been engaged. Tobiassen did not give evidence and there was nothing in Fuller's evidence to suggest that either man, on behalf of the respondent, saw it as being within their province and authority to instruct contractors or their employees about the manner in which they should perform the expert work for which they were engaged, or that any such instruction by them would be accepted and followed by the subcontractors. The matters raised by the appellant at the previous site inspection which appear to have been the subject of instructions for their rectification included such things as shifting a brace which was located in a site access area, moving a portable toilet from a position where something might fall on it, and moving a panel which was leaning against another.

On the other hand, there was evidence from Hunt and other employees of Kefo that Mr Kelsh was the supervisor in charge of the rigging work involved in the erection of structural steel and concrete tilt panels. He gave the instructions as to how the work was to be performed. Their evidence, I think, tends to confirm that had they been given any instructions as to the manner of the performance of their work by Tobiassen and/or Fuller, their response would be to confirm with Kelsh that the direction was to be followed rather than that they would have accepted that they were obliged to do what they were told by Tobiassen or Fuller.

[111]

In Chugg v Pacific Dunlop Ltd ... there is ... a clear dictum (at 260) in the reasons for decision of Dawson, Toohey and Gaudron JJ that 'overmuch significance' ought not to be given to 'the relative knowledge of an employer or an informant', because in many instances the questions of practicability do not involve special knowledge. Insofar as the reasons of Dawson, Toohey and Gaudron JJ adopted (at 262), with approval, the observations of Lord Upjohn in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, 125 - 126, it is also apparent that the duty, resting upon the employer or other person obliged to exercise care, is 'with his experts to consider the state of the place of work in all its circumstances and to take whatever steps he could, so far as reasonably practicable, to make it safe'.

Far from limiting the objective state of knowledge to the subjective state of knowledge of the particular builder (in the present case) or persons in comparable positions, the legislation, in my view, casts an obligation upon all persons, upon whom comparable duties are imposed, to acquaint themselves with practicable measures existing in the industry for the maintenance of safety and the avoidance of hazard. They will not be excused from a failure to perform this obligation simply because of the limits of their own subjective knowledge, except on occasions where, as Steytler J said in Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998), it is knowledge of a special kind attributable to a specialised contractor and outside the scope of the knowledge to be expected of a builder. I must say, with all respect, that I have hesitations in limiting the scope of practicability even to that extent, because the definition of 'practicable' within s 3 of the Act speaks about 'state of knowledge' in the broad, without limiting the state of knowledge to any particular trade, profession or occupational experience. This is consistent with the policy of the Act which, in my view, is intended to achieve a situation that if, objectively speaking, there is known within an industry that there are hazards of a particular kind which may be injurious to the health and welfare of persons on worksites, and that there are means available of avoiding or reducing those hazards, then, having regard to factors such as the degree of risk, the means of removing or mitigating the risk and the availability, suitability and the cost of the means to reduce the risk, the decision about practicability will then be taken in a balanced and objective fashion.

The crucial point of this statutory language, however, is that it lends no support at all to a view of practicability which is associated with a limited knowledge by some person within the industry who, by hypothesis, is oblivious to the existence of objective knowledge within the industry which identifies the risk and suggests means of addressing it. Certainly, there is a balancing judgment to be made, having regard to the degree of risk involved, the means available of reducing the risk and the associated costs, but that balancing exercise needs to be performed once it is established that there is an objective state of knowledge within the industry which exposes the hazard and suggests a means of coping with it. That state of knowledge is not limited to occasions when the risk is known and appreciated at lower levels, or by the individual on whom the duty is cast.

As framed, the obligation requires persons on whom such duties are cast to acquaint themselves with the objective state of knowledge within the industry and, as implied by Lord Upjohn in his remarks in Nimmo v Alexander Cowan & Sons Ltd, to take advice from experts and others to supplement his or her own appreciation of the situation. Failure to do that does not displace the existence of an objective state of knowledge or excuse a failure to perform the duty if, otherwise, it were practicable to perform it. This is, if I may say so with respect, the essential error which pervades this aspect of the decision at first instance; namely, to associate the objective state of knowledge with the scope of knowledge actually possessed or to be expected of such a builder. In my view, that significantly understates the extent of the statutory and regulatory duties here under consideration. In Hamersley Iron Pty Ltd v Robertson, Steytler J expressly contemplated that in relation to a personal duty to provide a safe workplace, so far as is practicable, that latter phrase determines the extent of the obligation:

[113]

Indeed, it was accepted in Hamersley Iron Pty Ltd v Roberston, as following from Ertech Pty Ltd v Reid (Unreported, WASC, Library No 9174, 6 December 1991), that the state of knowledge which forms part of the component of practicability, is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge in fact possessed by a specific employer in particular circumstances. See, also, Pullin J in Silent Vector Pty Ltd v Shepherd [[2003] WASCA 315] [12].

This is entirely consistent with the legislative policy to bring work safety standards into compliance with objective safety criteria known to industry as a whole, rather than to define the duty and measure the obligation with reference to the variable standpoint of an individual self-employed person, employer or employee, or other persons filling those positions who might only have a limited appreciation of the objective standards available within the industry as a whole. Lest this appear too onerous, or indifferent to hitherto prevailing standards of the uninformed, it can be said that it means no more than that a reasonable employer, employee or self-employed person in any of the positions postulated by the Act, will be a person who is informed and cognisant of the objective standards of dealing with hazards existing within the industry in which he or she may be working, even though this may require that person to seek advice from experts or others better informed than himself or herself so as to become acquainted with that objective standard.

Consequently, in the present prosecutions, once the learned magistrate was satisfied, as he was, that objective knowledge did exist within this industry about the hazard presented by torsional forces operating on steel rafters without adequate lateral restraint, and that means were available of dealing practicably with that risk, it was wrong to find that the measures which the prosecution asserted should have been taken by the respondent, in the first, second and third charges, were not practicable.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (121 paragraphs)

REILLY -v- DEVCON AUSTRALIA PTY LTD [2008] WASCA 84 (17 April 2008)

Relevant evidence and the contentions advanced in respect of it

The meaning of 'matters over which he has control' in s 19(4)

Legislation Cited (5)

Cases Cited (5)