The dust finally settles after the wall collapsed

By Saul Harben.

Key Points:
All those within a workplace who either actually can control a particular action or hazard, or have a right to control it, must act to do so.

Almost six years after a concrete tilt-up panel collapsed on a Perth building site resulting in the death of a contractor, the prosecutions and appeals appear to have been finalised, with the Project Management company escaping liability, but the individual registered builder being fined $35,000 (Reilly v Devcon Australian Pty Ltd and Reilly v Tobiassen).

The building site and the accident

Glenpoint Nominees Pty Ltd was developing a set of commercial showrooms on land that it leased. Devcon Australia Pty Ltd was appointed as the project manager for the development. Devcon engaged Svien Tobiassen, a self-employed person, to be the independent registered builder (although it was debated whether he was an employee or independent contractor). Devcon engaged manner contractors to perform the building tasks, which were then under the direction of Tobiassen. One of the contractors was Kefo Steel Erection & Fabrication Pty Ltd who was engaged to erect the concrete panels and structural steel. Desmond Kelsh was the principal of Kefo and was the rigging supervisor.

The construction was a concrete tilt-up panel system. Broadly, concrete slabs (which become the walls) are cast and positioned around the floor slab. These are then lifted into position, temporary braces fixed and then structural steel rafters spanning between the concrete panels are fixed creating the room and stability for the building.

In September 2002, while Kelsh and another Kefo employee were sitting on the structural steel rafters fixing them about 10 metres off the ground, one of the rafters broke free from the top of the wall and fell to the floor causing some of the panel to collapse. Kelsh fell and was fatally injured. The other employee was not seriously injured.

Prosecutions and appeals

WorkSafe prosecuted:

• Glenpoint and Devcon as an "employer" of Kelsh (under the imposition of liability for principals of contractors over matters under their control as if they were the contractor's employer); and
• Tobiassen, as a:
• "self-employed person" for failing to ensure the safety of other non-employees as a result of the self-employed person's work and for failing to ensure the casting and manufacture of the tilt-up panels and the erection of the panels were done in accordance with the Regulations and Australian Standards;
• person constructing a building who failed to ensure it was constructed without exposing others to hazards; and
• person in control of a workplace who failed to take practicable steps to ensure persons were not exposed to risks.

Glenpoint was acquitted at the first instance. Devcon was acquitted at the first instance and this acquittal was upheld on appeal by the Supreme Court and again by the Court of Appeal.

The Court of Appeal held that Devcon did not have control over the erection of structural steel and concrete tilt-up panels. The Court of Appeal found that the intention of the legislation was not to impose general obligations to supervise the manner in which specialist contractors performed their specialised work. The Court of Appeal concluded that Devcon did not have any legal right to control that manner of Kefo's work and did not demonstrate actual control over the work.

Tobiassen was acquitted at first instance but this was overturned on appeal and a penalty of $35,000 imposed. Tobiassen was initially acquitted on the basis that he was not self-employed but an employee of Devcon and that he was not "constructing" the building at the site or responsible for the failure to comply with the Regulations or the Australian Standards. On appeal, the Supreme Court concluded from the evidence that Tobiassen was self-employed and was in control of the operations, the engagement of contractors and dictated what work was done and when.

Having determined that Tobiassen was self employed, it then concluded that he had extensive obligations and rights to control safety on the site. Although Kefo has specialised knowledge, as the registered builder Tobiassen should have known of the risks as this was known within the industry. The obligations imposed on the self-employed person did not rely on the same "capacity of control" element as in Reilly v Devcon case.

The Court also made it clear that the legislation can impose "control" and liability over more than one party in regard to a particular site or hazard.

Implications

The two decisions do not sit comfortably together but as the Court of Appeal said in Reilly v Devcon, the decisions are not apposite because of the different duties (and different sections under which the parties were charged).

These cases clearly indicate that all those within a workplace who either actually can control a particular action or hazard, or have a right to control it, must act to do so. Clearly, a process of simply appointing competent persons or competent contractors will not absolve a person with control of liability.

Employers and principals must ensure they:

• actually exercise their control;
• keep up to date with the "knowledge" within their industry in regard to hazards and practicable ways of eliminating or controlling those hazards;
• be thorough in the delegation of work and awarding of contracts to ensure that safe work practices are adhered to; and
• facilitate a co-operative approach to working with all contractors and sub-contractors engaged in any project to ensure that matters do not "fall through the gaps".

While the decision in Reilly v Devcon may give principals some comfort when they engage expert contractors, the two cases still clearly point out that significant care must be taken in regard to the structuring of contracts and the issues of managing hazards within areas which the principal may have any degree of control.

For further information, please contact Saul Harben.