In an important decision handed down by the WA Magistrates Court on Friday 18 February 2011, Fortescue Metals Group (FMG) and its wholly owned subsidiary, The Pilbara Infrastructure Pty Ltd (TPI), was acquitted of 18 alleged breaches of the Occupational Safety and Health Act 1984 (WA) (OSH Act). The alleged breaches stemmed from the tragic events on 9 March 2007, when Tropical Cyclone George struck a temporary accommodation village in the Pilbara region of WA, causing the deaths of two workers and serious harm to a number of others.

DLA Phillips Fox represented FMG and TPI and successfully argued on their behalf that they had reasonably relied upon the expertise of its contractor, Spunbrood Pty Ltd trading as NT Link (NT Link), which had been engaged to supply and install the temporary accommodation village, known as 'RV1'. RV1 was used by workers engaged in the construction of the railroad between Cloudbreak Mine and Port Hedland.

The result provides some reassurance to companies that they have likely reasonably discharged their duties under the OSH Act (or, by analogy, similar safety legislation) if they engage specialist contractors where:

  1. the task the contractor has been engaged to perform falls within the contractor's area of expertise and outside that of the principal company, and
  2. the task reasonably appears to the principal company to have been carefully and safely performed by the contractor.

In those circumstances it is unlikely to be apparent what other reasonably practicable measures could have been taken by the principal company to prevent an accident.

The successful outcome in this case for FMG and TPI highlights the importance of:

  1. having properly drafted conditions of contract which clearly set out the obligations of contractors in relation to matters concerning safety
  2. implementing an effective incident response plan to be used in the event of an incident
  3. obtaining legal advice as soon as possible after an incident to assist with the company's legal response to the incident and its interaction with the regulator (eg WorkSafe) during any investigation
  4. engaging appropriate experts at an early stage in response to an incident so that in the event prosecutions are instituted the company has a well-informed group of experts who can provide beneficial evidence.

© DLA Phillips Fox

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This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.