OHS: “reasonably practicable” & when reliance on others is sufficient

Kirwin v -v- The Pilbara Infrastructure Pty Ltd [2012] WASC 99

Issues: when is it reasonable to rely on someone else in performance of a duty owed by the principal?

Occupational Safety and Health Act 1984 (WA), s 3, s 19(1) and s 23(G) – ss 19 and 23(G) “…so far as is practicable” – s 3 “…practicable means reasonably practicable” – duty of principal to do all that was ‘reasonably practicable’ –

Discussion

Further to previous postings about the defence of “reasonably practicable” as of 1 January 2012 this decision is of assistance in providing guidance in considering the matters taken into account in circumstances of building construction (dongas), which were subsequently found not to have complied with the relevant wind-load and tie-down specifications resulting in death and injuries to workers during Cyclone George (2007).

In particular Hall J placed significant emphasis on the contractual document in the tender which shifted the onus to the builder to ensure that the relevant standards were complied with, together with the representations by that company via Mr Smith that they would so comply.

180.    The appellant’s argument assumes that the respondents’ duties could only be performed by the respondents directly ensuring that all safety requirements had been met.  That is not so.  Whilst the respondents could not delegate or contract out of their duties, they could perform them by ensuring that an appropriately experienced and qualified person was retained to deal with matters beyond their own knowledge and ability.  The magistrate’s findings were not merely that NT Link had undertaken obligations in respect of the design, but that the respondents had sought and received assurances regarding NT Link’s experience and ability in this regard, and that they had acted in accordance with those representations. 

181.      The question was whether this, in all of the surrounding circumstances, was sufficient in the performance of the duty they owed to their workers.  Those surrounding circumstances included that Spotless had prepared the RFT, that the Shire had approved the necessary plans, that NT Link had undertaken to ensure that all the work was completed to Australian Standards, that NT Link had indicated that engineering services would be utilised by them, that relevant plans were marked with a certification by a qualified engineer and that the respondents retained the services of Worley Parsons to assist them in project delivery. 

182.      The appellant’s argument also appears to assume that because the concept of reasonableness incorporates an objective standard it does not take into account the specific circumstances in which the respondents operated.  That cannot be correct.  Whilst the definition of ‘practicable’ refers to the objectively knowable risks and means for alleviating them, that does not mean that in determining whether there has been a breach of the duty the particular circumstances of the employer are ignored.  An employer has a duty to be pro‑active and to seek out information regarding possible risks and the means to alleviate them.  That does not mean that it is expected to be omniscient.  What it is practical and reasonable for an employer to know and to do must be determined by the context in which the employer operated at the relevant time.

 Brisbane Barrister – David Cormack

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