Dear Colleagues;
For those interested in breach of statutory duty in the workplace, the recent decision of the NSW CA in Wynn Tresidder Management v Barkho [2009] NSWCA 149 (16 June 2009) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2009/149.html is interesting but a bit disappointing. A lady who was attempting to enter a shopping centre car park was injured when she slipped on a wet surface which had been created by rain coming in where renovations were happening. Her claim in negligence against the owners of the shopping centre (the occupiers) succeeded at trial and was upheld by the CA. But a claim in breach of statutory duty (BSD), which also (correctly in my view) succeeded at trial, was doubted by the appeal court. I will just comment on the BSD claim.
The claim was based on civil liability created by the Occupational Health and Safety Regulation 2001 (yes, in the singular, I don't like it either). I have discussed workplace BSD claims under the "new" (risk management) style of OHS legislation (in both Australia and the UK) in an article in (2006) 14 Tort Law Review 79-104 but to sum up the route to civil liability here briefly:
(1) The OHS Act 2000 (NSW) is the head legislation; it provides in s 32(1) that a breach of the "general duties" under the Act (which includes s 8(2) duties owed by an employer to non-employees at the place of work, and s 10 duties owed by those in control of workplaces) is not civilly actionable.
(2) But s 32(2) of the Act explicitly preserves the possibility that the regulations under the Act may create such liability.
(3) And in my view s 39A of the Act confirms this.
“39A Civil liability under regulations
The regulations may provide that nothing in a specified provision or provisions of the regulations is to be construed:
(a) as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of the provision or provisions, or
(b) as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings,
but the failure of the regulations to so provide in respect of a provision is not to be construed as conferring such a right of action or defence.”
To my mind this is a fairly straightforward provision so long as you know that it is well established at common law that industrial safety legislation usually is civilly actionable (in Australia, eg, see O'Connor v Bray (1936) 56 CLR 464). All it does it to specifically empower the regulations to exclude actionability from particular areas, against that background. (In fact the OHS Reg does now contain one such provision, in Chapter 6B which deals with "Major Hazard Facilities", clause 175E(2). But the option under s 39A has not elsewhere been exercised, so on general principles one would say that all other provisions of the Regs are arguably civilly actionable, unless there is some good reason to the contrary.) It is hence a bit odd to find McColl JA (who delivered the main judgement) at [82] calling s 39A "curious" and suggesting that it (rather than the general subject matter and history of the legislation) "confers an implied power" to make an actionable regulation.
At any rate, the provisions of the regulations relied on here were clauses 32 and 34, which impose obligations on the "controller of premises" to identify risks and eliminate or reduce them. McColl JA however made a number of comments where she expressed doubt that these provisions could be used for a civil action by someone who was not an "employee", but was rather a member of the public like Ms Barkho.
With respect, her Honour's comments are far from persuasive on this point. Whatever view might have been taken of the scope of older, "Factory Acts" legislation, it really seems beyond argument that the OHS Act 2000 and the OHS Reg 2001 do impose obligations to look out for the safety of members of the public who are present at a workplace. As her Honour conceded at [94] the wording of the regulations is more than adequate to cover members of the public; clearly the car park was a "place of work" as a cleaner, Mr Nagem, was working trying to soak up some of the water on the spot where Ms Barkho fell.
But at [95] we are told that "substantial policy reasons" favour the exclusion of members of the public from enjoying an ability to sue under the regulations! The policy reasons then identified, however, amount to the fact that the NSW Parliament has restricted the ability of "members of the public" generally to take civil actions for negligence; that arguably since BSD claims are often "absolute" (not involving proof of carelessness), Part 1A of the CLA would not apply to such claims (a proposition I would agree with); and hence that because members of the public injured in workplaces would be better off than those injured elsewhere, Parliament cannot have intended this result! Indeed, there is even the odd suggestion at [98] that the CLA has somehow "impliedly repealed" the bits of the OHS Reg which would allow such action...
Another reason for excluding the liability for harm to members of the public is seen in the decision in Booksan v Wehbe [2006] NSWCA 3 that the doctrine of contributory negligence applies to BSD claims. This last reason is just unfathomable. Booksan was a very specific decision exploring the precise terms of a number of pieces of legislation. But McColl JA seems to suggest that it implies some sort of general policy that where a case is "in substance, a claim for damages for harm resulting from negligence", then the same rules as those applicable to negligence claims ought to apply.
These arguments are highly unpersuasive. The long history of the BSD action for workplace injury shows that it has often been available where negligence might not be, and subject to different rules. There seems no real doubt that the operation of the relevant provisions of the Act and regs protects members of the public.
The only saving grace is that at [100] her Honour at least acknowledges that these remarks on the BSD action are obiter in that the claim succeeded in negligence. Since her remarks are intended, as she says, to not even be as high as "tentative", I venture to suggest that with full argument on the matter a properly guided court would see the issues more clearly. I also notice that Young JA agrees that the judgement of the court on these issues is not binding- [115]-[116].
In the UK I am aware that the question whether a member of the public is protected by regs was resolved in the negative in Donaldson v Hays Distribution Services Ltd [2005] ScotsCS CSIH 48, at least in relation to the particular regulation being dealt with there. But my recollection from reading the case a while ago was that at least the answer turned on the terms of the actual regulation; whereas here the result is openly reached contrary to the language of the statute!
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
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