Tobiassen v Reilly

(2009) 178 IR 213; [2009] WASCA 26

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Occupational Health and Safety
2. › Duties of employers and self-employed persons
3. › Meaning of 'practicable'
4. › State of knowledge about risk
5. › Whether objective knowledge within industry sufficient or whether knowledge must be reasonably expected of person in position of responsible person
6. › Reliance on specialist contractor
7. › Occupational Safety and Health Act 1984 (WA), ss 3, 21(1), 22(1)(a), 23(3a)(a)
1. Occupational Health and Safety
2. › Duties of self-employed persons
3. › Work in which self-employed person was engaged
4. › Whether specialist contractor's work was work in which registered builder was 'engaged'
5. › Occupational Safety and Health Act 1984 (WA), s 21(1)(b)
1. Occupational Health and Safety
2. › Duties of persons who have control of workplaces
3. › Meaning of 'control'
4. › Whether overall management and supervision constitutes control
5. › Concurrent and overlapping control
6. › Occupational Safety and Health Act 1984 (WA), s 22(1)(a)
1. Occupational Health and Safety
2. › Duties of constructors of buildings
3. › Application of s 23(3a)(a)
4. › Whether provision limited to buildings constructed elsewhere for use at a workplace
5. › Occupational Safety and Health Act 1984 (WA), s 23(3a)(a)

Quick Take

The 'state of knowledge' element in the definition of 'practicable' under the Occupational Safety and Health Act 1984 (WA) encompasses not only what is known about a risk and means of removing it, but also who might ordinarily be expected to have that knowledge. A responsible person is not required to acquaint themselves with all objective knowledge within the industry; where they have relied on a specialist contractor for work outside their expertise and the work reasonably appears to be safely performed, it will ordinarily not be practicable for them to have done more. The concept of 'control' under s 22(1) is broader than control of a specific 'matter' under s 19(4), and a person with overall management and supervision may have control of a workplace even if they cannot control the specific manner in which a specialist contractor works.