User Name: Simon Di Rosso

Date and Time: Monday, 3 April 2023 6:17:00PM AEST

Job Number: 194024478

Document (1)

1. Kirwin v Pilbara Infrastructure Pty Ltd

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Simon Di Rosso
 Kirwin v Pilbara Infrastructure Pty Ltd
CaseBase
| (2012) 217 IR 203 | [2012] WASC 99 | BC201201523

Kirwin v Pilbara Infrastructure Pty Ltd

(2012) 217 IR 203; [2012] WASC 99; BC201201523

Court: WASC

Judges: Hall J

Judgment Date: 23/3/2012

Abstract

WorkSafe WA has lost its appeal against a Magistrates Court decision that Fortescue Metals Group did not fail to
provide a safe work environment at a railway camp during Cyclone George in 2007. Numerous workers were
injured and one killed when the storm tore pre-fabricated accommodation buildings away from their footings. It was
accepted at trial that the buildings did not meet relevant design standards. The court agreed with the magistrate's
conclusion that the nature of the hazard and the means to reduce any associated risk fell within the expertise of an
independent contractor, not Fortescue. Apart from seeking assurances that buildings had been built to an
appropriate standing, there was nothing more Fortescue could reasonably have been expected to do in the
circumstances.

Catchwords & Digest

Industrial law — Occupational health and safety — Duties of employers — Duty to do all that is reasonably
practicable to ensure safe working environment

Appeal against decision of Magistrates Court of Western Australia (WAMC).

Cyclone hit respondents' railway camp.

Workers took shelter in pre-fabricated accommodation buildings.

Winds caused buildings to pull away from footings and, as consequence, numerous workers injured and one killed.

Subsequent investigation revealed that buildings did not meet relevant design standards.

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Kirwin v Pilbara Infrastructure Pty Ltd

Respondents charged under (WA) Occupational Health and Safety Act 1984 with failing to provide and maintain
working environment which did not expose workers to hazards.

Claimed had no expertise in designing and building work camps and had contracted others to do work and had
relied on contractors to meet necessary standards.

WAMC not satisfied that respondents had failed to do all they reasonably could to protect workers from hazards and
dismissed charges.

Appellant WorkSafe claimed WAMC erred in finding that respondent reasonably relied on expertise of contractors.

Claimed WAMC erred in relying on respondents' reasonable assumptions.

Established issue of design and of ensuring that buildings were checked by appropriately qualified engineers were
matters that were taken into account when respondents engaged contractors.

Established fact that contractors did not do what respondents expected them to did not lead to conclusion that
respondents failed in their duty.

Established nature of hazard and means to reduce risk of harm fell within expertise of contractors.

Established, other than seek assurances that buildings had been built to appropriate standards, nothing more that
respondents could reasonably have been expected to do.

Established WAMC's conclusions were open on evidence.

Appeal dismissed.

Litigation History

Kirwin v Pilbara Infrastructure Pty Ltd 7/9/2012

WASC

[2012] WASC 99 (S); BC201208924

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Kirwin v Pilbara Infrastructure Pty Ltd

Related

Cases referring to this case

SafeWork NSW v Arkwood (Gloucester) Pty Ltd 30/3/2022

NSWDC

[2022] NSWDC 89; BC202240139

Cited

Safework Nsw v H D Projects Pty Ltd 17/12/2020

NSWDC

[2020] NSWDC 765; BC202041182

Cited

SafeWork NSW v Assign Blue Pty Ltd 7/12/2020

NSWDC

[2020] NSWDC 756; BC202041167

Cited

SafeWork NSW v McConnell Dowell 6/11/2020

NSWDC
Constructors (Aust) Pty Ltd (No 2)

[2020] NSWDC 668; BC202041041

Cited

D'Souza v Barclays Building Services (WA) Pty 19/6/2020

WADC
Ltd

[2020] WADC 87 at [572] ;

BC202040506at [572]
Cited

SafeWork NSW v BOC Ltd 30/4/2020

NSWDC

Simon Di Rosso
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Kirwin v Pilbara Infrastructure Pty Ltd

[2020] NSWDC 156; BC202040249

Cited

SafeWork NSW v Investa Asset Management Pty 25/3/2019

NSWDC
Ltd

[2019] NSWDC 76; BC201940139

Cited

Nash v Resource Pacific Pty Ltd (No 3) 2/2/2018

NSWSC

[2018] NSWSC 45; BC201800628

Considered

Tower v Wehrmann 24/2/2017

WASC

[2017] WASC 48; BC201701458

Considered

Publications referring to this case

Engaging Expert Contractors: The Work Health and Safety

Obligations of the Business or Undertaking (2014) 27 AJLL 57

Cases considered by this case

Laing O'Rourke (BMC) Pty Ltd v Kirwin 17/5/2011

WASCA

[2011] WASCA 117 at [31]-[32] ;

BC201103077at [31]-[32]
Considered

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Kirwin v Pilbara Infrastructure Pty Ltd

Tobiassen v Reilly 29/1/2009

WASCA

(2009) 178 IR 213 at [59], [61], [62] ;

[2009] WASCA 26at [59], [61], [62];

BC200900189at [59], [61], [62]

Considered

Reilly v Devcon Australia Pty Ltd 17/4/2008

WASCA

(2008) 36 WAR 492; (2008) 173 IR 307; [2008] WASCA 84; BC200802582
Considered

Reilly v Devcon Australia Pty Ltd 11/5/2007

WASC

[2007] WASC 106; BC200703629

Cited

Morrison v De Bono 9/12/2005

WASC

(2005) 147 IR 454 at [26]-[28] ;

[2005] WASC 271at [26]-[28];

BC200510588at [26]-[28]
Distinguished

Silent Vector Pty Ltd v Shepherd 15/12/2003

WASCA

[2003] WASCA 315 at [11]-[12], [23], [25] ;

BC200307881at [11]-[12], [23], [25]

Considered

Wylie v South Metropolitan College of TAFE 7/3/2003

WASCA

[2003] WASCA 34 at [45] ;

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Kirwin v Pilbara Infrastructure Pty Ltd

BC200300965at [45]
Cited

Shepherd v Co-operative Bulk Handling Ltd 14/12/2001

WASCA

[2001] WASCA 413 at [55] ;

BC200107984at [55]
Cited

Complete Scaffold Services Pty Ltd v Adelaide 18/6/2001

SASCFC
Brighton Cement Ltd

[2001] SASC 199; BC200103252

Cited

Hamersley Iron Pty Ltd v Robertson 2/10/1998

WASC

BC9805219
Considered

R v Associated Octel Co Ltd United Kingdom

19/7/1994
-
[1994] 4 All ER 1051; [1995] ICR 281 ; [1994] IRLR 540
Considered

Chugg v Pacific Dunlop Ltd 3/10/1990

HCA

(1990) 170 CLR 249; (1990) 95 ALR 481; (1990) 64 ALJR 599; (1990) 50 A Crim
R 85; (1990) 34 IR 412; [1990] HCA 41; BC9002934
Cited

Interstruct Pty Ltd v Wakelam 15/8/1990

WASC

(1990) 3 WAR 100 at [108]-[109]

Cited

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Kirwin v Pilbara Infrastructure Pty Ltd

Legislation considered by this case

Legislation Name & Jurisdiction Provisions

Occupational Safety and Health Act s 19(1), s 19A, s 23D, s 23G(2), s 23H(2), s 3, s 5
1984 (WA)

End of Document

Simon Di Rosso