Sunday night’s Beaconsfield biopic, whilst entertaining viewing, provides a reminder to the mining industry of just how important safety management is – and what’s at stake.
However there is some recent good news in decisions such as Kirwin v The Pilbara Infrastructure Pty Ltd which gives mining operators comfort in relation to the practical application of safety laws to contracting arrangements.
Following Cyclone George’s destruction of a railway camp in the East Pilbara in 2009 and resulting fatalities, the Western Australian Supreme Court considered the resulting safety prosecution against The Pilbara Infrastructure Pty Ltd (Pilbara Infrastructure).
The key issue was whether or not Pilbara Infrastructure had done everything reasonably practicable to ensure the railway camp dongas had been properly constructed and were a safe refuge in the event of a cyclone. It had engaged a contractor (NT Link) to build the camp, and had utilised another contractor (Spotless) to project manage.
The Supreme Court rejected an argument by the regulator that Pilbara Infrastructure had not done all that was reasonably practicable. The regulator had argued that that it should have engaged the services of an appropriately qualified engineer specifically to ensure that the dongas were built to relevant wind specifications (ie. engage a further expert to review the work of NT Link), but this was rejected.
The Pilbara Infrastructure had procured apparently well qualified experts to design and identify the specifications for the dongas, and found that whilst Pilbara Infrastructure could not contract out of or delegate its duties, it could perform those duties by ensuring that an appropriately experienced and qualified contractor was retained to deal with matters beyond its knowledge and ability.
This victory for common sense is also supported by the recent High Court decision in Baiada Poultry Pty Ltd v The Queen which confirms that absolute reliance on an expert contractor may be capable of discharging a principal’s duty, and the mere fact that the principal has the power to take a certain step does not make it reasonably practicable to have done so.