REILLY -v- TOBIASSEN [2008] WASC 6 (18 January 2008)

REILLY -v- TOBIASSEN [2008] WASC 6 (18 January 2008) - WASC 2008 case summary — Zoe

[31]

1/5 Between the 19th day of August 2002 and the 19th day of September 2002 at Myaree, SVEIN GERHARD TOBIASSEN, being a self-employed person, failed so far as was practicable to ensure that the safety of persons not being his employees was not adversely affected as a result of the work in which he was engaged, in contravention of section 21(1) of the Occupational Safety and Health Act 1984 and, by that contravention, caused the death of a person; contrary to s 21(3) of the Act. [Charge No PE 49377/03]

2/5 Between the 19th day of August 2002 and the 19th day of September 2002 at Myaree, SVEIN GERHARD TOBIASSEN, being a person who constructed a building for use at a workplace, failed so far as was practicable to ensure that the construction of the building was such that persons who properly constructed the building were not, in doing so, exposed to hazards, in contravention of s 23(3a)(a) of the Occupational Safety and Health Act 1984 and, by that contravention, caused the death of a person; contrary to s 23(5) of the Act. [Charge No PE 49378/043]

3/5 On the 18th day of September 2002 at Myaree, SVEIN GERHARD TOBIASSEN, being a person who had control of a workplace where persons who were not his employees worked or were likely to be in the course of their work, failed to take such measures as were practicable to ensure that the workplace was such that persons who were at the workplace were not exposed to hazards, in contravention of s 22(1)(a) of the Occupational Safety and Health Act 1984; contrary to s 22(4) of the Act. [Charge No PE 49379/03]

4/5 Between the 19th August 2002 and the 16th day of September 2002 at Myaree, SVEIN GERHARD TOBIASSEN, being a self-employed person at a construction site where concrete tilt-up panels were to be cast on the site and tilted or lifted into place, failed to ensure that the casting of the panels was in accordance with the requirements of paragraph 6.1 of AS 3850.1 in that he failed to ensure that the elements were manufactured in accordance with the shop drawings; contrary to Regulation 3.88(1)(b) of the Occupational Safety and Health Regulations 1996 made under the Occupational Safety and Health Act 1984. [Charge No PE 49380/03]

5/5 Between the 26th day of August 2002 and the 19th day of September 2002 at Myaree, SVEIN GERHARD TOBIASSEN, being a self-employed person at a construction site where concrete tilt-up panels were to be cast on the site and tilted or lifted into place, failed to ensure that the erection of the panels was in accordance with paragraph 7.6(a) of AS 3850.1 in that he failed to ensure that elements were braced in accordance with shop drawings; contrary to Regulation 3.88(1)(b) of the Occupational Safety and Health Regulations 1996 made under the Occupational Safety and Health Act 1984. [Charge No PE 49381/03]

[42]

The learned magistrate erred in fact and law in determining that the accused was not a 'self-employed person' within the meaning of the Act. The evidence established that the respondent worked under an agreement with Devcon dated 1 July 2002 and the appropriate characterisation of the relationship established by this agreement - and to the extent, if at all, that it was permissible to take into account other evidence - was that of principal and independent contractor.
The learned magistrate erred in fact and law in determining that it was not 'as a result of the work in which [the respondent] was engaged' within the meaning of s 21(1)(b) of the Act that the employees of Kefo had their safety adversely affected. The evidence established that the respondent was the registered builder with responsibility for the site, including the construction of Unit 3; that the safety of the Kefo employees was adversely affected as a result of the failure to provide adequate lateral restraint to the rafters in Unit 3; that the respondent had in fact the ability to control the manner in which work was done on the site; and, that the omission by the respondent to take steps to avoid the safety of the Kefo employees being adversely affected was something which occurred in the course of the work in which the respondent was engaged.
The learned magistrate erred in fact and law in determining that it would not have been 'practicable' within the meaning of the Act for the respondent to have ensured that the safety of the Kefo employees was not adversely affected. The evidence established that solutions proposed by the expert engineers (Messrs Wanke and Van Der Meer) were 'practicable'; the 'state of knowledge' in relation to the hazard and the means of knowing it which existed prior to the collapse within the industry did in fact exist; and, that the need for lateral restraint for such rafters was known in the industry prior to the collapse.
The learned magistrate erred in fact and law in determining that the death of Mr Kelsh was not caused by a contravention by the respondent of s 21(1) of the Act. The evidence established that the collapse resulted from the failure to provide adequate lateral restraint to the rafters in Unit 3; and, that Mr Kelsh died as a result of that collapse. It therefore follows that the death of Mr Kelsh was caused by the failure of the respondent to perform the duty imposed by s 21(1) of the Act.

[43]

The learned magistrate erred in fact and law in determining that the respondent was not a person who was constructing a building within the meaning of s 23(3a)(a) of the Act. The evidence established that the respondent was the registered builder with responsibility for the project at the site, including the construction of Unit 3. It therefore followed that the respondent was a person who was constructing Unit 3 within the meaning of s 23(3a)(a) of the Act.
The learned magistrate erred in fact and law in determining that the provision of adequate lateral restraint to the rafters in Unit 3 was not part of 'the construction of the building' within the meaning of s 23(3a)(a) of the Act. The provision of lateral restraint to those rafters was a necessary step in the safe erection of the steel work in Unit 3; the erection of that steel work was part of the construction of Unit 3; and, any step forming part of the erection of the steel work, including the provision of adequate lateral restraint of that steel work, is therefore a part of the construction.
The learned magistrate erred in fact and law in determining that the Kefo employees at the site were not 'properly construct[ing]' the building within the meaning of s 23(3a)(a) of the Act at the relevant time. Section 23(3a) distinguishes between a person responsible for the construction of a building (the respondent) and those who in fact carry out the work which constitutes 'constructing' (the Kefo employees). The subsection places a duty on the 'constructor' to take practicable steps to ensure that the work of 'constructing' is safe. The 'constructor' is only absolved from liability where that which is made safe by his actions becomes unsafe as a result of those 'constructing' not 'properly' implementing that which is required by the 'constructor'. The evidence established that the respondent imposed no requirement on the Kefo employees to provide adequate lateral restraint to the rafters in Unit 3, so there was no basis for concluding that the Kefo employees were not 'properly' implementing the requirements of the respondent.
The learned magistrate erred in fact and law in determining that it would not have been 'practicable' within the meaning of the Act for the respondent to have ensured that 'the construction of the building' was such that the Kefo employees were not exposed to a hazard in the course of 'properly construct[ing]' the building. The evidence from the expert engineers (Messrs Wanke and Van Der Meer) established that there were practical solutions available to deal with the hazards produced by the torsional forces operating on the steel rafters. The state of knowledge then existing within the industry and the means of removing it should not have been confined to the actual knowledge possessed by the respondent or to any other narrowly-defined group of persons. The evidence established that the need for lateral restraint for the rafters being erected in Unit 3 was known in the industry prior to the collapse, as were the various means by which the risk of inadequate lateral restraint could be removed.
The learned magistrate erred in fact and law in determining that the death of Mr Kelsh was not caused by a contravention by the respondent of s 23(3a)(a) of the Act. The evidence established that Mr Kelsh died as a result of the collapse of the building; that this collapse resulted from the failure to provide adequate lateral restraint to the rafters in Unit 3; and, it therefore followed, that the death was caused by the failure of the respondent to perform the duty imposed on him by s 23(3a)(a).

[44]

The learned magistrate erred in fact and law in determining that the respondent was not a 'self-employed person' within the meaning of the Act. (The particulars, as described, repeat those already set out in ground 1 relating to the first charge.)
The learned magistrate erred in fact and law in determining that the respondent did not relevantly have 'control of [the] workplace' for the purposes of s 22(1) of the Act. The essential question was whether the respondent had control over the provision of adequate lateral restraint to the rafters in Unit 3. This required a determination of whether the respondent had the power to give directions and/or take other action which would have resulted in the provision of adequate lateral restraint. The existence of such a power was established, on the evidence, as a matter of inference from the other evidence which established a power to exercise control by the respondent in relation to other matters on the site - the learned magistrate erred in not drawing that inference. Further, and in particular, the learned magistrate erred by addressing the extent of the subjective knowledge and/or expertise of the respondent and/or the riggers in relation to the recognition of the need for lateral restraint.
The learned magistrate erred in fact and law in determining that it would not have been 'practicable' within the meaning of the Act for the respondent to have ensured that 'the workplace' was such that the Kefo employees were not exposed to a hazard. The subscribed particulars in support of this ground refer to the 'practicable' solutions agreed upon by the expert engineers (Messrs Wanke and Van Der Meer), the state of knowledge available in the industry at the time, and the knowledge of the means available to address the risk arising from inadequate lateral restraint as set out in the grounds of appeal to the preceding charges.
The learned magistrate erred in fact and law in determining that the death of Mr Kelsh was not caused by a contravention by the respondent of s 22(1)(a) of the Act. (These particulars subscribed to this ground repeat those set out under ground 5 for the second charge above.)

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REILLY -v- TOBIASSEN [2008] WASC 6 (18 January 2008)

Legislation Cited (9)

Cases Cited (16)