Reilly v Tobiassen involved the construction of industrial showrooms. The method of construction was concrete tilt-up panel construction which involved pre-cast concrete panels being erected to form the walls of a larger building with structural steel rafters fixed to the top of those panels. The rafters connected the panels and formed the roof of the building.
The developer, Glenpoint Nominess Pty Ltd, engaged Devcon Australia Pty Ltd (Devcon) as project manager. Devcon engaged Mr Svein Tobiassen (Tobiassen) as registered builder for the construction of the site. The agreement between Devcon and Tobiassen provided that Tobiassen would “personally manage and supervise all building works as requested by the company as required under” the Builders’ Registration Act 1939 (WA) (BR Act).
An accident at the site on 18 September 2002 caused the death of a rigger, Mr Desmond Kelsh (employed by Kefo Steel Erection & Fabrication Pty Ltd), when part of the construction collapsed.
Tobiassen was charged with five offences under the Occupational Safety and Health Act 1984 (WA) (OSHA) and Occupational Safety and Health Regulations 1996 (WA). One of the charges was that Tobiassen, as 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.
At first instance the Magistrate dismissed all five charges against Tobiassen. The Magistrate’s decision was appealed to the Supreme Court of Western Australia (WASC). Heenan J of the WASC considered all five charges against Tobiassen. This article will only consider Heenan J’s decision in relation to the issue of control and reasonable practicable measures.
At first instance, the Magistrate held that Tobiassen did not have the degree of control over the workplace necessary for section 22(1) OHSA.
Heenan J considered that the Magistrate wrongly confined the test for control (which is not defined in the OHSA) in concluding that Tobiassen was not in control of the workplace where persons not employed by Tobiassen were in control of the workplace.
Heenan J noted that the reasoning of the Magistrate proceeded incorrectly from the basis that there can only be one person in “control” of the workplace in the relevant sense, and for that control to exist it must contain an element of knowledge, skill and experience and the ability to recognise the need for corrective action and the power to enforce it.
Having regard to the purpose of the OSHA “to promote and improve standards for occupational safety and health”, Heenan J considered that the concept of control of a workplace should be approached so that all persons who share in the control of building operations or work at a worksite have the obligation to exercise that control by taking practical measures to ensure that the workplace does not expose other persons on site to hazards.
In Heenan J’s view, the word “control” within the meaning of section 22(1) OSHA means the ability of any person to whom the section applies to use the influence associated with that control to install, maintain and enforce appropriate safe working practices and to avoid ascertainable hazards so far as is practicable.
Heenan J said that the phrase “to any extent” in section 22(1) OSHA covers various degrees of control. Heenan J considered Tobiassen’s employment, powers and duties under the BR Act, and associated ability to give directions, and concluded that Tobiassen did have control of the workplace as a selfemployed person. He therefore had an obligation to ensure that all others working at the site, including subcontractors, complied with the terms of their contracts and the statutory and other duties to ensure that safe working measures and precautions were taken in the performance of their work.
The word “control” is not defined in any other current State or Territory occupational health and safety legislation (OHS legislation). The National Review into Model OHS Law - Second Report (Second Report) recommended that the model legislation should not define control and observed that the courts have been sufficiently consistent in their interpretation of the word “control” in the contexts in which it would be used in the model legislation for duty holders to have confidence in how it will be interpreted and applied.
The prosecution alleged it was practicable for Tobiassen to take the following precautionary measures:
- ensure that there was adequate lateral restraint of the steel beams (“rafters”) at the site during, and following, the erection of the rafters
- ensure that the concrete tilt-up panels to which the beams at the site were affixed were properly constructed, and
- ensure the bases of the tilt-up panels had been properly secured and braced.
The Magistrate concluded that Tobiassen did not fail, so far as was practicable, to ensure that the safety of persons was not adversely affected or that the other identified hazards were avoided.
According to Heenan J, the Magistrate’s approach to the allegations proceeded from an incorrect subdivision of the duties and responsibilities of the various persons and trades working on the site, particularly the separation of the construction of the concrete tilt-up panels from the risk of collapse of the steel rafters.
The Magistrate was satisfied that there was an objective standard of knowledge in the relevant industry, about the risks to safety identified in the particulars of the charge, and the means by which that risk could be removed or reduced. Heenan J said that the “essential error” which pervaded this aspect of the Magistrate’s decision was to associate the objective state of knowledge of Tobiassen with the scope of knowledge actually possessed or to be expected of such a builder.
In particular, the Magistrate concluded that Heenan J remarked that the statutory language lends no support to a view of practicability which is associated with a limited knowledge by some person within the industry who is oblivious to the existence of objective knowledge within the industry which identifies the risk and suggests means of addressing it.
In the National Review into Model OHS Law – First Report (First Report) the review panel recommended that a duty holder’s obligation to discharge their primary duty of care under the model OHS legislation be subject to a qualifier of reasonable practicability which is to be placed within the duty, rather than in a defence provision. The qualifier of reasonable practicability currently exists in the OHS legislation of Victoria, Western Australia, the Australian Capital Territory and the Northern Territory. The defence provision currently exists in the OHS legislation of New South Wales and Queensland. In the First Report, the review panel suggested a definition of the expression “reasonably practicable” be included in the model legislation.
Implications for employers
This decision demonstrates the importance of employers, project managers and contractors asking these important safety questions: am I in control and what reasonable measures can I take? This case also serves as an important reminder to all dutyholders under safety legislation to be acquainted with practicable measures existing in the industry for the maintenance of safety and avoidance of hazards.