Article by Maria Saraceni and Lucy Bochenek
Construction sites can be filled with a variety of contractors undertaking many different tasks. Often, it is unclear who has control over the work at a site on any given day. For safety reasons, who has control of a workplace is of critical importance as persons with control, not just employers, can be held liable under the Occupational Safety and Health Act 1984 (WA). The recent decision of the WA Court of Appeal in Tobiassen v Reilly [2009] WASCA 26 has shed some light on the issue of control under the Act.
The case relates to a fatal accident that occurred at a construction site in WA in 2002, where a man died after a tilt-up concrete panel he was erecting collapsed on him. The construction site was owned by Glenpoint Nominees Pty Ltd who engaged Devcon Australia Pty Ltd as Project Manager. The deceased was a rigging subcontractor engaged by Devcon.
Mr Tobiassen was appointed by Devcon as the "registered builder" to manage and supervise the building work for the project in accordance with plans. WorkSafe alleged he breached his duty of care under the Act as a person with control of a workplace as well as breaching provisions of the Occupational Safety and Health Regulations 1996 (WA).
At first instance, all charges against Mr Tobiassen were dismissed as it was held that he did not have the requisite level of knowledge about tilt panel construction or the requisite level of control over the rigging subcontractor's work.
On appeal to the Supreme Court of Western Australia, Justice Heenan overturned this decision, finding that the terms of Mr Tobiassen's contract with Devcon and his actions on site were evidence of his control at the time of the incident, and that, as a person in control of the workplace, it was practicable for Mr Tobiassen to have educated himself on the risks involved in installing tilt-up panels, even though he had limited experience as a rigger. Mr Tobiassen was fined $35,000.
The Western Australian Court of Appeal overturned the convictions, considering that placing an obligation on Mr Tobiassen to take measures to ensure safety in respect of risks he could not reasonably be expected to know to be an "unreasonable burden". The Court of Appeal said:
However, the Court of Appeal did find that Mr Tobiassen had control of the workplace, even though he did not have control of the work relating to the tilt-up panels, as he had overall management over the building work on site. This affirms the long-standing position that control of a workplace under the Act does not rest with only one person at a fixed point in time.
This case is an important reminder that throughout Australia greater attention must be paid to managing contractors on construction sites at ground level, not just relying on contractual arrangements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.