Workplace health and safety law in Australia [2nd edition.] 9780409342833, 0409342831, 9780409342840, 040934284X

Table of contents :
Dedication
Full Title
Copyright
Foreword to the First Edition
Foreword to the Second Edition
Preface
Table of Cases
Table of Statutes
Table of Contents
Part 1 Introduction to the Australian Legal System
Chapter 1 Law, its Sources, and the Common Law
Chapter 2 Sources of Law: Statutes and How the Courts Read Them
Part 2 Workplace Safety and Civil Law
Chapter 3 Workplace Safety and the Contract of Employment
Chapter 4 Protection of Workplace Safety under Tort Law — Negligence: Duty of Care
Chapter 5 Protection of Workplace Safety under Tort Law — Negligence: Other Matters
Chapter 6 Protection of Workplace Safety under Tort Law: Breach of Statutory Duty
Part 3 Workplace Safety and Criminal Law
Chapter 7 Criminal WHS Law: General Introduction, Primary Duties
Chapter 8 Criminal WHS Law: Other Health and Safety Duties
Chapter 9 Criminal WHS Law: Other Duties and Enforcement
Chapter 10 Workplace Safety under Regulatory Criminal Law
Part 4 Workplace Safety and the General Law
Chapter 11 Workers’ Compensation under Statute
Chapter 12 Workplace Health and Safety and Anti-discrimination Law
Chapter 13 Workplace Safety and Litigation
Appendix 1 The Constitution (Table of Contents)
Appendix 2 The Constitution (Selected Extracts)
Appendix 3 Categories of Law
Appendix 4 Australian Hierarchy of Courts
Appendix 5 Outline of Federal Parliamentary Procedure: From a Bill to an Act
Appendix 6 The Parts of an Act of Parliament
Appendix 7 Comparison of OHSA 2000 (NSW) and WHSA 2011
Appendix 8 Selective Comparison between WCA 1987 (NSW) and other State Legislation
Recommended Further General Reading on WHS Law
Index

Citation preview

To Jenny; Rachel, Daniel, Sasha, Martyn, Silas and Anthea; James, Daphne, William and Eleanor; Claire, Andrew and Jack; and Miriam.

WORKPLACE HEALTH AND SAFETY LAW IN AUSTRALIA Second Edition Neil Foster

BA, LLB (UNSW), BTh (ACT), DipATh (Moore), LLM (UoN) Associate Professor, Newcastle Law School University of Newcastle, NSW

LexisNexis Butterworths Australia 2016

AUSTRALIA

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects:

Dewey Number:

Foster, Neil. Workplace health and safety law in Australia. 2nd edition. 9780409342833 (pbk). 9780409342840 (ebk). Includes index. Law — Australia. Criminal law — Australia. Civil law — Australia. Industrial safety — Law and legislation — Australia. Industrial hygiene — Law and legislation — Australia. Labor laws and legislation — Australia. 344.940465.

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. First Edition 2012. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in ITC Stone Sans and ITC Stone Serif. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

FOREWORD TO THE FIRST EDITION The Honourable Justice Roger Boland It is not surprising that at some point I would meet Neil Foster. As a judge of the Industrial Court of New South Wales, in the court’s criminal jurisdiction I deal regularly with the prosecution of offenders under the state’s workplace health and safety laws. Neil is an Associate Professor at the University of Newcastle in the Newcastle Law School. One of Neil’s main interests has been workplace health and safety and he has researched and written extensively on the subject. In my opinion, Neil is one of the country’s leading academics in the field of workplace health and safety. This common field of interest eventually drew us both together and we have from time to time conversed on the operation and effect of workplace health and safety laws. We have also participated jointly as speakers in seminars on the subject. What so impresses me about Neil is his deep and broad understanding of this area of the law, his ability to communicate that understanding in a clear and insightful way and the intellectual force of his critiques of judgments of the various courts and legislative provisions. This specialised field of law is, after all, complex; made even more so by recent changes instigated by the Commonwealth seeking to introduce a nationally harmonised set of laws across all Australian states and territories. This publication that Neil has written is a most timely addition to the texts on workplace health and safety law, especially given the move towards nationally uniform laws. Workplace health and

safety has developed into an important area of the law and is attracting far greater interest and attention than hitherto has been the case. Neil has sought to address the increase in demand for more information and explanation and has done so in a unique format. The book is much more than one simply focused on an area of new statute law, although it does that. The added attractiveness of the publication is that it discusses workplace health and safety law in the overall context of the Australian legal system and identifies its place in the scheme of criminal and civil laws that operate in this country; that is, how workplace health and safety laws interact with or relate to those other laws. A publication that simply addresses the black letter law of workplace health and safety may be quite useful for practitioners with a background in the general law. But it may be of limited assistance where that is not the case. This publication admirably fills the gap. The scope of the publication is impressive; written in plain language it addresses statutory interpretation and the rules to be applied, the law of employment, the law of negligence, breach of statutory duty, workers’ compensation law, discrimination law, statute law regulating workplace health and safety, including the new model Work Health and Safety Act 2011, and an overview of legal issues arising in the process of both civil and criminal litigation that may impact on court proceedings dealing with workplace safety breaches. It will be seen that the book is obviously the work of someone extremely well versed in the law generally. It is apparent from the style of the book it is primarily aimed at students, especially law students. But Neil’s treatment of case law, both domestic and overseas, and his explanation of various legislative provisions (especially the new provisions) I found to be a valuable reference source and quite useful for lawyers and even judges with an interest or role in respect of workplace health and safety law, as well as for employers and unions.

However, for anyone seeking the complete guide to workplace health and safety law in Australia I would commend Neil Foster’s book. I thank the author and the publisher for the honour of writing this foreword. Roger Boland Industrial Court of New South Wales President’s Chambers, Sydney April 2012

FOREWORD TO THE SECOND EDITION Emeritus Professor Ron McCallum AO I was delighted when Associate Professor Neil Foster asked me to pen this foreword to accompany the second edition of this splendid book. I first began teaching occupational health and safety law (as it was then styled) in 1985 at Monash University. Three decades ago it was a somewhat neglected area of labour relations law. Yet, its importance to the physical and mental health of workers cannot be over-emphasised. Since then, the legal academy has produced a sizable number of volumes and articles dissecting and critiquing our workplace health and safety laws. This scholarship, to which Neil Foster has ably contributed, has enriched the public discourse. In his foreword to the first edition, retired Justice Roger Boland has ably sketched the outline of this volume and I need not repeat his fulsome summary. It suffices to write that Associate Professor Neil Foster’s book goes way beyond analysing the model Work Health and Safety statute which has been enacted in seven of Australia’s nine jurisdictions, together with related safety statutes. Instead, this volume adopts a broad approach to our workplace safety laws by introducing and unpacking the ways in which the common law of contract and tort, together with a broad range of civil and criminal statutes impact upon workplace health and safety. Obviously, these statutes include the Work Health and Safety Acts and their attendant regulations, but this work also examines the statutes governing workers’ compensation, together

with relevant aspects of the anti-discrimination laws. This book is squarely aimed at tertiary students who are engaged in legal studies. However, legal practitioners, human resources managers and workplace health and safety personnel will gain much from Neil Foster’s many insights into the operation of these statutory provisions and the approaches of courts and tribunals to workplace health and safety issues. Of course, this foreword would not be complete without me commenting upon several of the matters discussed in this second edition. In the field of common law, developments in both vicarious liability and breach of statutory duty are discussed. Associate Professor Neil Foster has over the years written thoughtful pieces on breach of statutory duty and he brings this knowledge together to give readers a clear and comprehensive analysis of this area of law. As would be expected, there is a detailed and up-to-date analysis of the recent case law on the Model Workplace Health and Safety Statute. This case law also covers decisions on the personal liability of company directors, which is another field of expertise of Associate Professor Neil Foster’s. Finally, the recent changes to workers’ compensation law in New South Wales, which in my opinion have had an adverse impact on many injured workers, are unpacked. I most certainly commend this book to all those who wish to gain an understanding of this broad and growing field of workplace health and safety law. Emeritus Professor Ron McCallum AO Sydney April 2016

PREFACE When you build a new house, you shall make a parapet for your roof, that you may not bring the guilt of blood upon your house, if anyone should fall from it. (Deuteronomy 22:8, ESV)

Workplace health and safety law has had a bad reputation. Under its old name of ‘OHS’ or ‘Occupational Health and Safety’,1 it has been accused of ruining people’s enjoyment of life, turning us into a ‘Nanny State’, or just slowing down work through unnecessary bureaucracy. Of course people who are running the system can do all those things. But in essence the rationale for WHS law goes all the way back to the injunction above from the Hebrew Bible, thousands of years ago — when you are working, think about the consequences of what you are doing in case someone else might be hurt.2 The elaborate body of rules that make up what we call workplace health and safety law, the subject of this book, can seem daunting. But in my experience if you keep in mind the fundamental principles, much of the confusion is put into perspective. The law is aimed at one outcome: to try to make it more likely that when someone goes to work in the morning, they come home to their family in the same condition at the end of the day. The aim of this book is to introduce and outline the legal principles that will help to achieve that aim. For those who are not familiar with how law in Australia works, the first few chapters will provide an overview so that you can see how the rules are meant to operate. We then consider how the principles of what is called ‘private’ law, or ‘civil’ law, provide guidelines for the obligations people undertake when they employ others to do work, and the principles from the law of ‘torts’ that set out how we can enforce our rights not to be harmed in the workplace.

Against that essential background, we will then examine in detail the way that the criminal law operates. If civil law aims to provide compensation for harm, the criminal law is designed to head off the harm before it happens. In Australia we have made a move towards ‘harmonised’ criminal law on the topic that is now very similar in most jurisdictions, where it is usually called the Work Health and Safety Act 2011. We will be examining how this law operates around the country, though taking the New South Wales version as our primary starting point. We will also briefly look at the subsidiary regulations that are meant to support the main Acts. In the concluding part of the book, we will consider a range of other issues that are crucial to the modern response to workplace injury. We will discuss the statutory workers’ compensation legislation, the impact on workplace safety of the laws dealing with discrimination, and consider what you might need to know if you ever become involved in court proceedings dealing with WHS law. I hope that this book will be useful to students who are studying WHS law at a tertiary level. But I think it will also be accessible to anyone who is involved in managing others in the workplace, and who needs to get some idea of how our modern legal system tries to see that workers come home from work safely. In many ways this book is the culmination of 20 years of teaching this area at the University of Newcastle, both in ‘face to face’ classes and through distance education. I would like to thank all those students who have challenged me to make the material accessible and interesting, and whose insights along the way have helped me to clarify my own thinking. In particular my former student Sean O’Brien has been a regular correspondent on practical issues and new developments in the area. I would also like to thank my present and former colleagues in the Law School with whom I have been able to discuss ideas and share the teaching and marking load, especially Cheryl White, Bert Groen and Nola Ries. I have also been greatly helped and encouraged by

colleagues from the National Research Centre for Occupational Health and Safety Regulation at the Australian National University, and participants in their seminars. My friend and colleague Cameron Roles provided invaluable advice on the first edition of this work, which I would like to acknowledge now (better late than never!). I would also like to thank the Hon Roger Boland, former President of the New South Wales Industrial Court, for his kind foreword to the first edition, and my friend and mentor Emeritus Professor Ron McCallum AO for generously providing a foreword to this second edition. I also want to acknowledge the hard work put in by the talented LexisNexis Butterworths editorial team — among whom were Jocelyn Holmes, Carolyn Chamberlain, Kerry Paul, Emma Hutchinson, Annabel Adair and (for this second edition) Catherine Britton. Many thanks are also due to Tyler Fox, my research assistant on this project. I am grateful for the opportunity to present a second edition of this book, especially in light of the rapid pace of legislative change and the development of the common law through recent court decisions. In this edition I have been able to discuss important changes to the statutory workers’ compensation system in New South Wales which came into effect just after the publication of the first edition; to consider the way that the courts have been interpreting the WHS Act 2011 in its current context and in light of previous case law; and to take into account some important United Kingdom decisions on common law doctrines, such as vicarious liability and non-delegable duty, that may have a large impact in the future on the development of the law of Australia — to mention just a few of the updates to the previous work. Over many years my beloved family have put up with much late-night lecture preparation or time away at conferences and seminars. Thanks for all their love and care to my wife Jenny and children Rachel, James, Claire and Miriam. One of the joys of getting older is seeing some of them marry and start families of their own!

In the end this book, like my family and the rest of my life, is a gift from God, to whom I am eternally grateful. Soli Deo gloria! Neil Foster Newcastle Law School University of Newcastle, NSW April 2016 1.

Names for these things come and go with fashion. For many years ‘occupational health and safety’ (OH&S) was popular. With the introduction of the recent legislation we will be considering later, ‘workplace’ health and safety seems to have become more popular. This book will jump on the bandwagon of ‘WH&S’, though not without some slight misgivings: ‘workplace’ may signify to some people that the law does not apply outside a formal ‘office’ or ‘factory’ setting, and we will see that in fact the law is relevant whenever someone is undertaking work.

2.

For other modern principles supported by ancient Biblical wisdom, see Proverbs 14:15 (risk assessment) and Proverbs 15:22 (workplace consultation).

TABLE OF CASES References are to paragraph numbers A A, DC v Prince Alfred College Inc [2015] SASC 12 …. 3.122 — v — [2015] SASCFC 161 …. 3.122 ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; 172 A Crim R 269; [2007] VSCA 138 …. 13.7 Abdalla v Viewdaze Pty Ltd t/as Malta Travel [2003] AIRC 504 …. 3.25 Abela v Giew (1965) 65 SR (NSW) 485 …. 6.21 Accident Compensation Commission v McIntosh [1991] 2 VR 253 …. 11.28 ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146; [2013] FCAFC 3 …. 3.27 — v — [2013] HCATrans 190 …. 3.27 Adami v Maison de Luxe (1924) 35 CLR 143 …. 3.106 ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 …. 11.107 Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 …. 5.97, 5.98 ADI Ltd v Hawkesbury City Council [2000] NSWLEC 203 …. 10.3 Adonovski v Park-Tec Engineering Pty Ltd [2009] NSWCA 305 …. 3.40 AF Concrete Pty Ltd v Ryan [2014] NSWCA 346 …. 4.27 AFS Catering Pty Ltd v Stonehill [2005] NSWCA 183 …. 5.24 Agar v Hyde (2000) 201 CLR 552 …. 4.80 Aiello v Marrickville Council [2005] NSWCA 194 …. 1.74

Alcan Gove Pty Ltd v Zabic [2015] HCA 33 …. 5.63 Alcatel Australia Ltd v Griffiths (1998) 1 Aust Workers Comp Rev 233 …. 11.66 — v WorkCover Authority of New South Wales (1996) 70 IR 99 …. 9.47 Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 …. 6.4, 6.22 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 …. 4.39 Alec Finlayson Pty Ltd v Armidale City Council (1994) Aust Torts Reports ¶81-282 …. 4.79 Alexander, Estate of v Secretary, Department of Education and Communities [2015] NSWWCCPD 41 …. 11.63 Ali v Prestige Group (Australia) Pty Ltd (SC(NSW), Malpass M, 31 July 1997, unreported) …. 4.71 All State Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 …. 13.39 Allen v Western Metals Resources Ltd [2001] TASSC 1 …. 6.10 Allianz Australia Ltd v Sim; Workcover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (in liq) v Sim [2012] NSWCA 68 …. 5.63 Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264 …. 6.14, 6.24, 6.30, 6.44, 10.3, 10.10 Amaca Pty Ltd v Banton [2007] NSWCA 336 …. 5.69, 5.70 — v Booth; Amaba Pty Ltd v Booth [2011] HCA 53 …. 5.62, 5.63, 5.64 — v Ellis [2010] HCA 5 …. 5.63, 5.64, 6.10 Amaca Pty Ltd (formerly known as James Hardie & Co Pty Ltd) v New South Wales [2004] NSWCA 124 …. 4.81, 4.83, 4.84 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 …. 1.69, 1.72, 2.40, 2.42

American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 …. 2.60 AMP General Insurance Ltd v Roads & Traffic Authority (NSW) [2001] NSWCA 186 …. 5.47 Anchor Products Ltd v Hedges (1966) 115 CLR 493 …. 5.41 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 …. 3.105, 4.8, 4.87, 6.37, 6.38 Anderson v Enfield City Corporation (1983) 34 SASR 472 …. 4.73 Andonovski v Park-Tec Engineering Pty Ltd and Barbeques Galore Pty Ltd; Andonovski v East Realisations Pty Ltd (No 6) [2015] NSWSC 341 …. 3.40 Andreevski v Western Institute Student Union Inc [1994] IRCA 88 …. 3.52 Andrews v Rail Corporation NSW [2014] NSWWCCPD 7 …. 11.39 Ankucic v Rapid Packaging Services Pty Ltd (1995) AISHW ¶53-206 …. 8.12 Anns v Merton London Borough Council [1978] AC 728 …. 4.99 Anwar v Mondello Farms Pty Ltd [2015] SASCFC 109 …. 4.66 Anyco Pty Ltd v Kleeman [2008] WASCA 30 …. 4.25 Apache Energy Ltd v Alcoa of Australia Ltd (No 2) [2013] WASCA 213 …. 6.22 Application under MC (IP) Act, Re (2009) 24 VR 415 …. 13.82 Archer v George Weston Foods Ltd (SC(NSW), Dunford J, 24 November 1995, unreported) …. 10.3 — v Simon Transport Pty Ltd [2015] QDC 263 …. 7.39 Armour v Skeen [1977] Scots Law Times 71 …. 8.24 Armstrong v Hastings Valley Motorcycle Club Ltd [2005] NSWCA 207 …. 6.22 Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229 …. 11.104 Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615 …. 1.76

Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143 …. 12.78 Astley v Austrust Ltd [1999] HCA 6 …. 3.87, 5.81 Attorney-General (NSW) v Chan [2011] NSWSC 1315 …. 13.88 — v Perpetual Trustee Co Ltd (1952) 85 CLR 237; [1952] HCA 2 …. 3.78 — (NT) v Emmerson [2014] HCA 13 …. 1.63 — (SA) v Corporation of the City of Adelaide [2013] HCA 3 …. 2.32 — (Vic) v Andrews [2007] HCA 9 …. 2.17 Attorney-General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273 …. 3.120 Attorney-General’s Reference (No 2 of 1999) [2000] QB 796 …. 9.26, 13.77 Aufgang v Kozminsky Nominees Pty Ltd [2008] VSC 27 …. 3.15 Australia and New Zealand Banking Group Ltd v Mercer [2001] HCATrans 26 …. 11.89 — v Volmensky (SC(NSW), Common Law Div 92/15542, 14 December 1994, unreported) …. 3.77 Australia Meat Holdings Pty Ltd v Kazi [2003] QSC 225 …. 1.70, 3.62 — v — [2004] QCA 147 …. 3.62 Australian Air Express Pty Ltd v Langford (2005) 147 IR 240; [2005] NSWCA 96 …. 3.37, 3.39 Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 …. 3.100 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63 …. 2.22 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 …. 2.22 Australian Capital Territory Schools Authority v El Sheik (2000)

Aust Torts Rep ¶81-577 …. 5.21 Australian Communist Party v Commonwealth (1951) 83 CLR 1 …. 1.15 Australian Competition & Consumer Commission v Emerald Ocean Distributors Pty Ltd [2002] FCA 740 …. 13.50 — v Glendale Chemical Products Pty Ltd (1998) ATPR ¶41-632 …. 4.74 Australian Consolidated Press v Uren (1966) 117 CLR 185 …. 5.67 Australian Federation of Construction Contractors, Re; Ex parte Billing (1986) 68 ALR 416 …. 2.78 Australian Government Railways Commission v Australian Railways Union of Workers (WA Branch) [1986] AILR ¶418 …. 3.100 Australian Iron & Steel Ltd v Ryan (1957) 97 CLR 89 …. 6.37 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 …. 12.12, 12.19, 12.32 — v Luna (1969) 44 ALJR 52 …. 10.3 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 …. 3.25 Australian Nurses Federation v Minister Administering the Tasmanian State Service Act (1996) AISHW ¶53-212 …. 12.76 Australian Oil Refining Pty Ltd v Bourne (1980) 28 ALR 529; 54 ALJR 192 …. 9.12, 13.52 Australian Postal Corporation v Simon John Burch [1998] 944 FCA …. 11.27 — v Wooby [2013] HCASL 212 …. 4.23 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 …. 4.69 Australian Securities and Investments Commission (ASIC) v Edensor Nominees Pty Ltd [2001] HCA 1 …. 1.59 Australian Securities Commission v Marlborough Gold Mines Ltd

(1993) 177 CLR 485 …. 1.70 Australian Traineeship System and Colchester GR Pty Ltd (t/as Shell Service Station Waverley) v Wafta [2004] NSWCA 230 …. 5.26 Autoclenz Ltd v Belcher [2011] UKSC 41 …. 3.23 AV Jennings Ltd v Thomas [2004] NSWCA 309 …. 5.25 Ayoub v AMP Bank Ltd [2011] NSWCA 263 …. 11.39 B Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 …. 11.44, 11.63, 11.99, 11.101, 11.102 Baiada Poultry Pty Ltd v Inspector Glenister [2015] VSCA 344 …. 7.39 — v R [2012] HCA 14 …. 7.39, 8.52, 9.11, 13.7 Baker v Campbell (1983) 153 CLR 52 …. 13.19 — v Quantum Clothing Group Ltd [2011] UKSC 17 …. 6.35, 8.52 Balfour v Balfour [1919] 2 KB 571 …. 3.49 Ball v William Hunt & Sons Ltd [1912] AC 496 …. 11.104 Balmer v Country Producers Selling Co Ltd [1970] WCR 194 …. 11.47 Balog v Independent Commission Against Corruption (1990) 169 CLR 625 …. 2.56 Bank of New South Wales v Commonwealth (1948) 76 CLR 1 …. 5.63 Bank Voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 …. 3.12 Bankstown Foundry Pty Ltd v Braistina (1985) Aust Torts Reports ¶80-713 …. 4.8 — v — (1986) 160 CLR 301 …. 4.8, 5.3, 5.6, 5.80 Barber v Somerset County Council [2004] UKHL 13; [2004] 2 All ER 385 …. 4.52, 4.53

Barcock v Brighton Corporation [1949] 1 KB 339 …. 7.54 Barker v Corus (UK) plc [2006] UKHL 20 …. 5.61, 5.62, 5.63 — v Hobart City Council (TASSC, Slicer J, 6/05/93, unreported) …. 12.75 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 …. 5.43 — v Ministry of Defence [1995] 3 All ER 87 …. 5.26 Barton v Armstrong [1973] 2 NSWLR 598; [1976] AC 104 …. 3.67 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 …. 7.27 Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123 …. 3.46 Bazley v Curry [1999] 2 SCR 534 …. 3.12, 3.119 Beck v United Closures and Plastics plc [2001] SLT 1299 …. 8.9 Beckett v New South Wales [2013] HCA 17 …. 1.72 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 …. 5.46, 5.59, 5.60 Benic v State of New South Wales [2010] NSWSC 1039 …. 5.99 Bennett v Minister of Community Welfare (1992) 176 CLR 408 …. 5.49 Berger v Willowdale AMC (1983) 145 DLR (3d) 247 …. 4.85 Bernard v Attorney-General of Jamaica [2005] IRLR 398 …. 3.120 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 …. 5.91 BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2011] NSWSC 908 …. 6.22 Bhambra v Roet [2003] NSWCA 393 …. 6.14 Bhatia v State Rail Authority (NSW) (1997) 14 NSWCCR 568 …. 11.31 Bhinder v Canadian National Railway [1985] 2 SCR 561; (1986) 23 DLR (4th) 481 …. 12.60

BHP Biliton Ltd v Dunning [2015] NSWCA 55 …. 5.63 Bilal Kassem v ACN 075092232 Pty Ltd (in liq) (formerly known as ‘Australian Event Protection Pty Ltd’) [2009] NSWDC 262 …. 3.128 Bill Williams Pty Ltd v Williams (1972) 126 CLR 146 …. 3.125, 11.52 Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 …. 11.63 Birkett v Tubbo Estate Co Pty Ltd (1997) 14 NSWCCR 369 …. 3.48 Birkholz v RJ Gilbertson Pty Ltd (1985) 38 SASR 121 …. 5.58 Blacktown City Council v Smith (1996) 14 NSWCCR 132 …. 11.52 Blackwater v Plint (2005) 258 DLR (4th) 275 …. 3.5 Blake v J R Perry Nominees Pty Ltd [2010] VSC 272 …. 3.117 — v — [2012] VSCA 122 …. 3.117 Blomley v Ryan (1956) 99 CLR 362 …. 3.74 Bluescope Steel Ltd v Pitaroska [2014] NSWWCCPD 21 …. 11.85 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 …. 3.107 (Boles, Re) WorkCover Authority of New South Wales (Inspector Pile) v Fletcher International Exports Pty Ltd [2014] NSWDC 181 …. 7.57, 9.11 Bolton Metropolitan Borough Council v Malrod Insulations Ltd [1993] ICR 358 …. 7.42 Bolton, Re; Ex parte Bean (1987) 162 CLR 514 …. 2.78 Bond v R (2000) 169 ALR 607 …. 1.60 Bonnington Castings Ltd v Wardlaw [1956] AC 613 …. 5.60 Booksan Pty Ltd v Wehbe [2006] NSWCA 3 …. 6.6, 6.14, 6.15, 6.45 Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363 …. 13.67, 13.68 Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191 …. 4.11, 4.20, 5.33 Boral Resources (Qld) Pty Ltd v Pyke [1992] 2 Qd R 25 …. 3.103

Boral SGB Pty Ltd v White (SC(NSW) Court of Appeal, Clarke JA, Cole JA, Hunter AJA, 11 March 1996, unreported) …. 11.65 Boral Transport Ltd v Whitehead [2001] NSWCA 395 …. 5.23 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 …. 3.52 Boson v Sandford (1691) 2 Salk 440; 91 ER 382 …. 3.112 Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 …. 2.14 Bourhill v Young [1943] AC 92 …. 4.33 Bourk v Power Serve Pty Ltd [2008] QCA 225 …. 6.7, 6.9 — v — [2008] QSC 029 …. 6.9 Bourke v Hassett [1998] VSCA 24 …. 4.13 Bourne v Murphy (1996) 92 LGERA 329 …. 2.68 Bouzourou v The Ottoman Bank [1930] AC 271 …. 3.101 Boyded Industries Pty Ltd v Canuto [2004] NSWCA 256 …. 4.20 Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8 …. 11.12 Boyle v Kodak Ltd [1969] 2 All ER 439 …. 6.36, 6.37 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 …. 3.82, 3.84 Bradley v Bradley (1978) AILR ¶168 …. 3.51 Braham v J Lyons & Co Ltd [1962] 3 All ER 281 …. 6.29 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 127 ALR 1 …. 1.62, 12.20 Brejwo v Public Trustee [2002] NSWCA 115 …. 3.51 Bridgewater v Leahy [1998] HCA 66 …. 3.75 Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33 …. 5.91 Brink’s Global Services Inc v Igrox Ltd [2010] EWCA Civ 1207 …. 3.116, 3.124

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 …. 5.92 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 …. 13.25 British American Tobacco Exports BV v Trojan Trading Co Pty Ltd [2010] VSC 572 …. 6.3, 6.8 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 …. 4.80, 4.82, 4.83, 5.97, 6.21 Broken Hill Associated Smelters Pty Ltd v Stevenson (1991) 42 IR 130 …. 13.7 Broken Hill Pty Co Ltd v Federated Ironworkers Assocn of Australia (NSW) [1976] AILR ¶255 …. 3.101 Brook Street Bureau (UK) Ltd v Dacas [2004] EWCA (Civ) 217 …. 3.23 Brooker v Thomas Borthwick & Sons (Australasia) Ltd [1933] AC 669 …. 11.42 Bropho v Western Australia (1990) 171 CLR 1 …. 2.60, 2.65 Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292 …. 8.9 — v Inspector Ching [2006] NSWIRComm 287 …. 8.9 Brown v Maurice Blackburn Cashman [2013] VSCA 122 …. 4.61 — v Moore (SC(Qld), White J, 15 July 1996, unreported) …. 12.77 — v Robinson [2004] UKPC 56 …. 3.120 Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163; [1995] HCA 17 …. 1.71, 4.6, 4.88 Bugge v Brown (1919) 26 CLR 110 …. 3.115 Building Construction Employees and Builders’ Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372 …. 2.11 Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 99 ALR 735 …. 3.21, 3.22, 11.10

Bulga Coal Management Pty Ltd v Sager [2004] NSWCA 443 …. 11.37 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 …. 7.39, 9.40, 13.7, 13.71 Bullman v Debnam [2010] ACTSC 97 …. 13.39 Bunning v Cross (1978) 141 CLR 54 …. 13.63 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 …. 3.132, 3.135, 4.80 Burns v R [2012] HCA 35 …. 9.26 Butcher v Commissioner of Police, New South Wales [2010] NSWADT 169 …. 12.49 Butler v Dunn Monumental Masons Pty Ltd (Supreme Court of Tasmania, Underwood J, 6 August 1996, unreported) …. 3.104 Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056 …. 12.14, 12.25 Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2010] NSWSC 233 …. 8.35 — v — [2011] NSWCA 109 …. 8.33 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422; [1995] HCA 24 …. 3.78, 3.83, 3.84, 3.90, 3.147, 6.5, 6.8, 6.9, 6.22, 12.27 Byrnes v R (1999) 164 ALR 520 …. 1.60 C C v Commonwealth of Australia [2015] FCAFC 113 …. 5.84 C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400 …. 2.60 C L Green v I R Mabey t/as H Mabey & Co (SC(WA), Parker J, 7 December 1994, unreported) …. 9.46 Cahill v New South Wales (Dept of Community Services) (No 3) [2008] NSWIRComm 123 …. 2.43, 2.78, 7.12, 7.27, 7.56, 10.15, 13.70

Cairns v Visteon UK Ltd [2007] ICR 616 …. 3.5 CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47 …. 4.61, 4.96, 5.30 Callaghan v De Sandre (NSW CIMC, Miller CIM, No 90/491, 22 October 1991, unreported) …. 9.3 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 …. 4.69 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 …. 4.26, 4.97 Calvert v Mayne Nickless Ltd (No 1) [2005] QCA 263 …. 6.34 Campbell v Peter Gordon Joiners Ltd and Derek Forsyth [2015] ScotCS CSIH 11 …. 11.116 Canada (Human Rights Commission) v Canada (Armed Forces) [1994] 3 FC 188 …. 12.28 Canterbury Bankstown Rugby Football League Club Ltd v Rogers (1993) Aust Torts Rep 81-246 …. 3.125 Caparo Industries Plc v Dickman [1990] 2 AC 605 …. 4.90, 4.91, 4.99 Carey v Commissioner for Consumer Protection [2013] WASCA 195 …. 8.42 Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853 …. 4.74 Cargill Australia Ltd v Higginson [2002] NSWADTAP 20 …. 12.46 Carr v Botany Bay Council [2003] NSWADT 209 …. 12.17 — v Donnelly [1937] WCR 294 …. 11.46 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 …. 8.51, 13.71 Cartledge v E Jopling & Sons Ltd [1963] AC 758 …. 5.74 Casley-Smith v FS Evans & Sons Pty Ltd (No 1) (1988) 49 SASR 314 …. 13.41 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

…. 6.42 Catholic Child Welfare Society v Various Claimants [2012] UKSC 56; [2013] 1 All ER 670 …. 3.5, 3.6, 3.111, 3.122, 3.123 Caton v Richmond Club Ltd [2003] NSWADT 202 …. 12.78 Cattanach v Melchior (2003) 199 ALR 131; [2003] HCA 38 …. 5.95, 5.97 Central Coast Area Health Service v Evans [2004] NSW WCC PD 10 …. 11.46, 11.98 Central Darling Shire Council v Greeney [2015] NSWCA 51 …. 4.27 Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 …. 3.115 Cercone v Bull’s Transport Pty Ltd [2002] SADC 123 …. 12.25 CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 …. 8.35 CGU Workers Compensation v Panoy Pty Ltd [2012] NTSC 26 …. 6.6 Chapman v Hearse (1961) 106 CLR 112 …. 5.55 — v University of Southern Queensland Student Guild [2010] QDC 318 …. 6.9 Chappel v Hart (1998) 195 CLR 232 …. 5.43, 5.46 Chappell & Co Ltd v Nestle & Co Ltd [1960] AC 87 …. 1.38 Chester v Council of Municipality of Waverley (1939) 62 CLR 1 …. 4.33, 4.36 Chevalley v Industrial Court of New South Wales [2011] NSWCA 357 …. 1.63 — v Inspector Morrison [2012] HCATrans 31 …. 1.63 Chevron USA, Inc v Echazabal 122 S Ct 2045 (2002) …. 12.73 Chief Constable of Hampshire Police v Taylor [2013] EWCA Civ 496 …. 6.35, 6.39 Chivers v Queensland [2012] QCAT 166 …. 12.64

Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75 …. 9.29 Christos v Curtin University of Technology (No 2) [2015] WASC 72 …. 4.61 Chubb Security Aust Pty Ltd v Trevarrow [2004] NSWCA 344 …. 11.97 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 …. 6.34, 9.11, 9.12, 13.7 CI & D Manufacturing Pty Ltd v Registrar, Industrial Court of New South Wales (1996) 40 NSWLR 1 …. 2.3, 2.61 Civil & Civic Pty Ltd v Hughes (1996) 39 NSWLR 505 …. 11.77 Clarence Valley Council v Macpherson [2011] NSWCA 422 …. 4.27 Clark v Ryan (1960) 103 CLR 486 …. 13.41, 13.46 Clarke v W L Meinhardt and Partners Pty Ltd (Matter Nos 1212 & 1213 of 1990, 30 June 1992, unreported) …. 7.42 Clarke v Waylexson Pty Ltd [2009] NTSC 19 …. 11.55 Clinch v Commissioner of Police (1984) EOC ¶92-115 …. 12.38, 12.46 Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32 …. 3.11 Coal Operations Australia Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 346 …. 8.30 Coastwide Fabrication and Erection Pty Ltd v Honeysett [2009] NSWCA 134 …. 5.60 Coates & Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 …. 4.39 Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 …. 5.48 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 …. 12.27 Cofield v Waterloo Case Co Ltd (1924) 34 CLR 363 …. 10.3

Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29 …. 5.27 — v Whitfield (1988) 165 CLR 360 …. 2.23 Coleman v British Gas (QBD, 27 Feb 2002) …. 4.32 — v Commissioner of Police, New South Wales Police Service [2001] NSWADT 34 …. 12.34 Coles Myer Logistics Pty Ltd v Lee [2007] NSWWCCPD 141 …. 11.77, 11.81 Colliar v Bulley [2000] NSWCA 1 …. 11.34 Collier v Sunday Referee Publishing Co [1940] 2 KB 647 …. 3.94 Coloca v BP Australia Ltd [1992] 2 VR 441 …. 5.68 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australasia Ltd (1931) 46 CLR 41 …. 3.133, 3.134 Colour Quest Ltd v Total Downstream UK Plc (Rev 1) [2009] EWHC 540 (Comm) …. 3.5, 3.33, 6.13 Colquhoun v Australian Iron and Steel Pty Ltd (SC(NSW) Court of Appeal, No 40117 of 1993, BC9605422, Mahoney P, Handley and Powell JJA, 15 November 1996, unreported) …. 5.40 Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 …. 2.13 Comcare v Commonwealth of Australia [2007] FCA 662 …. 9.39 — v PVYW [2013] HCA 41 …. 11.57 — v Transpacific Industries Pty Ltd [2012] FCA 90 …. 9.39 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 …. 3.73, 3.74 Commissioner for Corporate Affairs v Bracht [1989] VR 821 …. 8.23, 8.25, 8.27, 8.29 Commissioner for Railways (NSW) v Collins [1961] NSWR 771 …. 11.51 — v Corben (1939) 39 SR (NSW) 155 …. 5.40 — v O’Brien (1958) 100 CLR 211 …. 4.8, 5.26

— v Ruprecht (1979) 142 CLR 563 …. 5.79 Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268 …. 12.45 Commissioner of Police v Burrows (SC(NSW), James J, No 30002 of 1995, 25 August 1995, unreported) …. 12.9 — v Estate of Russell [2002] NSWCA 272 …. 12.78 — v Minahan [2003] NSWCA 239 …. 11.36 — v Mooney (No 2) [EOD] [2003] NSWADTAP 67 …. 12.13 — v Zraika [2005] NSWADTAP 1 …. 12.30 Commissioner of State Revenue v Mortgage Force Australia Pty Ltd [2009] WASCA 24 …. 3.39 Commissioner of Taxation (Cth) v Ryan (2000) 201 CLR 109; [2000] HCA 4 …. 2.41, 2.43 Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55 …. 2.14 — v Cocks (1966) 115 CLR 413 …. 3.118 — v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191; 119 ALR 133 …. 12.57 — v Oliver (1962) 107 CLR 353 …. 11.51 — v Williams [2002] FCAFC 435 …. 12.9 Commonwealth Bank of Australia v Barker [2014] HCA 32 …. 3.78, 3.79, 3.81, 3.86, 3.97 Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 …. 4.24, 10.10 Conato Pty Ltd t/as Narrogin Furnishings v Green (Full Court (WA), 23 February 1996, FUL 109 of 1994, unreported) …. 13.64 Concut Pty Ltd v Worrell (2000) 176 ALR 693; 75 ALJR 312; [2000] HCA 64 …. 3.78, 3.85, 3.107 Connair Pty Ltd v Frederiksen (1979) 53 ALJR 505 …. 11.33 Construction, Forestry, Mining and Electrical Union v Leighton

Contractors Pty Ltd (2012) 225 IR 197 …. 12.55 Cook v Cook (1986) 162 CLR 376 …. 1.5, 1.69 — v Oberon City Council [2010] FMCA 624 …. 12.56 — v R & M Reurich Holdings Pty Ltd [2004] NSWCA 268 …. 4.46 Cooper v Ford Motor Co of Australia Ltd (1987) EOC ¶92-191 …. 12.40 — v Hobart (2001) 206 DLR (4th) 193 …. 4.99 — v Stuart (1889) 14 App Cas 286 …. 1.50 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 …. 2.42, 2.45, 2.48 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH (1976) (3) SA 352 …. 13.48 Coote v Forestry Tasmania [2006] HCA 26 …. 4.93 Corr v IBC Vehicles Ltd [2006] EWCA Civ 331 …. 5.47 — v IBC Vehicles Ltd [2008] UKHL 13 …. 5.47 Costello v Allstaff Industrial Personnel (SA) Pty Ltd & Bridgestone TG Australia Pty Ltd [2004] SAIRComm 13 …. 3.6 Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 …. 4.8 Cox v Ministry of Justice [2016] UKSC 10 …. 3.123 Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 …. 11.107 Cranston v Consolidated Meat Group Pty Ltd [2008] QSC 41 …. 4.48 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 …. 3.69 Criminal Proceeds Confiscation Act 2002 (Qld), Re [2003] QCA 249 …. 1.63 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1; 74 ALJR 1; [1999] HCA 59 …. 4.8, 4.80, 4.89, 4.92, 4.94 Crisp v Chapman (1994) 10 NSWCCR 492 …. 11.33

Crook v Derbyshire Stone Ltd [1956] 2 All ER 447 …. 3.118 Crowe v Trevor Roller Shutter Services Pty Ltd (No 2) [2011] VSC 28 …. 6.10 CSR Ltd v Wren (1997) 44 NSWLR 463 …. 4.15 Cubic Interiors Pty Ltd v Basic [2006] SWWCCPND 293 …. 11.81 Cutter v Powell (1795) 6 Term Rep 320; 101 ER 573 …. 3.143 Czatyrko v Edith Cowan University [2005] HCA 14 …. 4.8, 5.23, 5.32, 5.38, 5.80 D Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 …. 5.23 Da Ros v Qantas Airways Ltd [2009] NSWWCCPD 58 …. 11.56 — v Qantas Airways Ltd [2010] NSWCA 89 …. 11.56, 11.101, 11.102 Daghlian v Australian Postal Corporation [2003] FCA 759 …. 12.49 Dairy Farmers Co-operative Ltd v Azar (1990) 170 CLR 293 …. 6.27, 10.3 Dalzell v Ferguson [2009] NSWIRComm 81 …. 13.59 Damevski v Giudice [2003] FCAFC 252 …. 3.22, 3.30 Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 …. 13.60, 13.62 Dao v Australian Postal Commission (1987) 162 CLR 317 …. 12.6 Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482 …. 11.22 — v Long (1957) 97 CLR 36 …. 3.110, 6.10, 6.28 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 …. 13.46, 13.48, 13.50 Daubert v Merrel Dow Pharmaceuticals 61 USLW 4805 (1993) …. 13.45 Davern v Messell (1984) 155 CLR 21 …. 2.61

David Jones (Aust) Pty Ltd v P (SC(NSW), Abadee J, 29 August 1997, unreported) …. 12.40, 12.46 Davie v Magistrates of Edinburgh 1953 SC 34 …. 13.48 — v New Merton Board Mills Ltd [1959] AC 604 …. 3.86, 4.12, 4.13 Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10 …. 11.44 — v Nolras Pty Ltd [2005] NSWCA 379 …. 4.70 Daw v Intel Corp UK Ltd [2007] EWCA Civ 70 …. 4.61 Dawe v Twin Towns [2000] NSWCC 27 …. 11.36 Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 …. 3.6 Daykin v Neba International Couriers [2002] WASCA 213 …. 3.20 Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 …. 11.92 Deal v Kodakkathanath [2015] HCATrans 333 …. 6.4, 10.12 — v Kodakkathanath [2015] VSCA 191 …. 6.4, 6.10, 10.12 Dean v Hiesler [1942] 2 All ER 340 …. 8.32 Deatons Pty Ltd v Flew (1949) 79 CLR 370 …. 3.117, 3.119, 3.120, 3.122, 3.127, 3.138 Dee v Commissioner of Police, NSW Police (No 2) [2004] NSWADT 168 …. 12.78 Delahunt v Westlake & Westlake [1999] SASC 366 …. 4.16, 5.22 Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 …. 3.31 Department of Education and Training v Sinclair [2005] NSWCA 465 …. 11.37 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd [2001] NSWIRComm 130 …. 7.58 Department of Mineral Resources NSW v Blue Circle Southern Cement Ltd (1995) AISHW ¶53-206 …. 7.57 — v Kembla Coal & Coke Pty Ltd [1999] NSWIRComm 353 …. 7.47

Deputy Commissioner of Taxation v Austin (1998) 28 ACSR 565 …. 8.33 Dettmer v KJ McCracken Pty Ltd [2002] NSWCA 199 …. 4.19 Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194 …. 3.24, 3.30, 3.31, 3.35, 3.103, 3.113 Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 …. 11.63 Deyong v Shenburn [1946] KB 227 …. 4.28 DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 …. 4.12, 4.13, 4.14 Diemould Tooling Services Pty Ltd v Oaten; Santos Ltd v Markos [2008] SASC 197 …. 13.68 Dietrich v Dare (1980) 30 ALR 407 …. 3.51 — v R (1992) 177 CLR 292 …. 13.80 Digital Pulse Pty Ltd v Harris [2002] NSWSC 33 …. 3.108 Dimitrelos v 14 Martin Place Pty Ltd [2007] NSWCA 85 …. 5.41 Dingley v Chief Constable, Strathclyde Police 1998 SC 548 …. 13.48 Dinko Tuna Farmers Pty Ltd v Markos [2007] SASC 166 …. 9.15 Director of Public Prosecutions v Downer EDI Works Pty Ltd and Roads Corporation t/as VicRoads [2015] VSCA 287 …. 2.43, 2.78 — v Logan Park Investments Pty Ltd (1995) 132 ALR 449 …. 2.39, 2.60 — v Serratore (1995) 132 ALR 461 …. 2.67 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; [1984] HCA 48 …. 2.44 Director of Public Prosecutions (Ref No 1 of 1992) [1992] 2 VR 405 …. 7.50 Director of the Fair Work Building Industry Inspectorate v

Construction, Forestry, Mining and Energy Union [2015] FCA 1287 …. 9.37 Dismissal of Fitters by Broken Hill Pty Ltd, Re (1969) 69 AR (NSW) 399 …. 3.101 Djokic v Lloyd Sinclair and Central Queensland Meat Export Company (Aust) Pty Ltd (No H94/25, 24 August 1994, unreported) …. 12.75 Doherty v New South Wales [2010] NSWSC 450 …. 4.60 Dokoza v Stadkite Pty Ltd (1997) 42 NSWLR 544 …. 11.11 Dominguez v Sanchez Constructions Pty Ltd (2000) 20 NSWCCR 295; [2000] NSWCC 40 …. 11.44, 11.90 Donoghue v Stevenson [1932] AC 562 …. 1.44, 1.68, 1.76, 4.3, 4.67, 4.71, 4.96, 6.22 Donut King Australia Pty Ltd v Barber [1999] SASC 241 …. 3.133 Dorset Yacht Co Ltd v Home Office [1970] AC 1004 …. 4.91 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 …. 1.76 Douglas v Kinger, 2008 ONCA 452 …. 3.105 Doulis v State of Victoria [2014] VSC 395 …. 4.61 Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 …. 2.66, 2.67, 4.7, 6.33, 10.10 Drake v Mylar Pty Ltd [2011] NSWSC 1578 …. 4.75 Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432 …. 13.7 Drzyzga v G & B Silver Pty Ltd (1994) 10 NSWCCR 191 …. 3.48 Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 1 All ER 97 …. 3.120 Duffy v Tancred Bros Pty Ltd [1951] WCR 80 …. 11.54 Duma v Mader International Pty Ltd [2013] VSCA 23 …. 6.10, 6.39 Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176 …. 12.49 Dunkerley v Comcare [2012] FCAFC 132 …. 11.39

Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 …. 6.10 Dunn v Department of Education & Training (2000) 19 NSWCCR 475; [2000] NSWCC 11 …. 11.36 Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) [2012] VSC 99 …. 13.51 Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 340 …. 2.60 — v — (2001) 205 CLR 399; [2001] HCA 7 …. 1.21, 2.11, 2.60 E EB v Order of Oblates of Mary Immaculate in the Province of British Columbia 2005 SCC 60 …. 3.119 Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236 …. 5.88, 11.6, 11.13 Edwards v Dumbain Pty Ltd [2002] NSWCC 18 …. 11.90 — v National Coal Board [1949] 1 KB 704 …. 8.52, 9.12 — v West Herts Group Hospital Management Committee [1957] 1 All ER 541 …. 4.28 — v Woolworths Ltd [2009] ACTSC 4 …. 6.6, 6.15 Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 …. 5.26 Elliott v Nanda [2001] FCA 418 …. 12.77 Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v South Australia [2006] WASC 270 …. 6.10 Elms v Ansell Ltd [2007] NSWSC 618 …. 4.75 Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356 …. 4.27 Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 …. 5.98 English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415 ….

13.47 Entick v Carrington (1765) 19 St Tr 1030 …. 1.35 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 68 ALJR 127 …. 13.82, 13.83, 13.86 Epstein v WorkCover Corporation of South Australia [2003] SASC 231 …. 2.32 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 …. 3.53, 3.54, 3.55 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241 …. 4.68 Essential Energy v WorkCover Authority of New South Wales [2012] NSWIRComm 83 …. 7.28, 7.52 Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; [1999] HCA 67 …. 1.75, 13.19 Evans v New South Wales [2008] FCAFC 130 …. 2.22, 2.32, 2.61 Ewart v Caruso [2013] WASCA 266 …. 3.15 F F & D Normoyle Pty Ltd v Transfield Pty Ltd (t/as Transfield Bouygues Joint Venture) (2005) 63 NSWLR 502; [2005] NSWCA 193 …. 6.14, 6.30 Fadkhreddine v Neffati [2002] NSWCC 57 …. 11.91 FAI General Insurance v Lucre [2000] NSWCA 346 …. 4.45, 4.46, 4.50 Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 …. 3.6 — v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37 …. 3.9, 3.27 — v — [2015] HCA 45 …. 3.23, 3.27 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 …. 5.61, 5.62, 5.63

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 …. 1.67, 1.70 Fardon v Attorney-General (Qld) [2004] HCA 46 …. 1.63 Farmakis v WorkCover/Mercantile Mutual Insurance [2005] SAWCT 40 …. 3.37 Faucett v St George Bank Ltd [2003] NSWCA 43 …. 4.54 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] HCA 34 …. 11.31, 11.63, 11.97, 11.101 Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395 …. 3.12 Felk Industries Pty Ltd v Mallet [2005] NSWCA 111 …. 4.25 Fencott v Muller (1983) 152 CLR 570 …. 1.59 Fernando v Commissioner of Police (1995) 36 NSWLR 567 …. 1.70 Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 627; 56 ALJR 872 …. 4.8, 5.23 Ffrench v Sestili [2007] SASC 241 …. 3.129 Field v Department of Education and Communities [2014] NSWWCCPD 16 …. 11.63 Finance Sector Union v Commonwealth Bank of Australia [1997] HREOCA 12 …. 12.61 Fire & Rescue NSW v Hayman [2012] NSWWCCPD 66 …. 11.85 Fischetti v Classic Constructions (Aust) Pty Ltd and Vero Insurance Ltd [2013] ACTSC 210 …. 6.6, 6.15 Fisher v Harrods Ltd [1966] 1 Lloyd’s Rep 500 …. 4.71 Fitzgerald v FJ Leonhardt Pty Ltd (1997) 71 ALJR 653 …. 3.62 Flaherty v Girgis (1987) 162 CLR 574 …. 2.63 Flanagan v Murdoch Community Services Inc [2010] FCA 647 …. 12.14, 12.54 Flavel (dec’d), Re (1916) SALR 47 …. 2.74 Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 …. 12.52

Forrester v Harris Farm Pty Ltd (SC(ACT), 2 February 1996, unreported) …. 13.47 Forsayth Mining Services Pty Ltd v Jack (SC(WA), Full Court, 10 May 1995, unreported) …. 4.18 Fortescue (Junior) v Morrasey [2000] NSWCA 193 …. 5.3, 11.12 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10 …. 2.64 Fowler v Padget (1798) 7 TR 509 …. 1.44 Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23 …. 6.13 Francey v Hilton Hotels of Australia Ltd [1997] HREOCA 56 …. 12.61 Franklin v Kone Elevators Pty Ltd [2011] VSC 108 …. 6.10 Franks v Reuters Ltd [2003] EWCA (Civ) 417 …. 3.23 French v Sydney Turf Club Ltd (No 2) [1999] NSWCA 195 …. 12.32 — v — (No 2) [2002] NSWADT 98 …. 12.33 Fry v Keating [2013] WASCA 109 …. 8.47 Fuller v New South Wales Department of School Education and Training [2004] NSWCA 242 …. 5.23 Fullowka v Royal Oak Ventures Inc 2004 NWTSC 66; [2005] 5 WWR 420 …. 4.85 Fytche v Wincanton Logistics plc [2004] UKHL 31 …. 10.20, 10.24 G G, P, A & C, P v Down [2009] SASC 217 …. 5.53 Galashiels Gas Co v O’Donnell [1949] AC 275 …. 6.32 Galea v Bagtrans Pty Ltd [2010] NSWCA 350; [2011] Aust Torts Reports ¶82-078 …. 4.16 Galjaardt v The Trade Centre for Furniture & Rentals Pty Ltd [2002] ACTSC 69 …. 5.23 Gallagher Bassett Services Pty Ltd v Murdock (2013) 86 NSWLR 13;

[2013] NSWCA 386 …. 5.93 Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 …. 5.60 Gardiner v Victoria [1999] 2 VR 461; [1999] VSCA 100 …. 6.8 Gardner Bros Pty Ltd v McAuliffe (1986) 15 IR 477 …. 13.71 Garrard v A E Southey & Co and Standard Telephones and Cables Ltd [1952] 2 QB 174; [1952] 1 All ER 597; [1952] 1 TLR 630 …. 3.31 Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 …. 2.22 Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1970) 122 CLR 504 …. 2.63 Gett v Tabet [2009] NSWCA 76 …. 1.70, 1.72 Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33 …. 4.36, 4.37, 4.39, 4.40, 4.41, 4.63 Gilbert v R & D Panelform Pty Ltd [1997] NSWIRC 189 …. 8.9 Gillespie v Commonwealth of Australia (1993) Aust Torts Rep ¶81217 …. 5.51, 5.54 Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 …. 6.36, 6.37, 6.38 Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355 …. 5.49 Glass v Pioneer Rubber Works of Australia Ltd [1906] VLR 754 …. 3.85 Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203 …. 4.11, 5.93 Golden Plains Fodder Australia Pty Ltd v Millard [2007] SASC 391 …. 3.38 Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 …. 3.80 Gomes v Metroform Pty Ltd [2005] NSWCA 171 …. 5.23 Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29 ….

5.93 Gordon v James Hardie & Co Pty Ltd (No 2) (1987) Aust Torts Reports ¶80-133 …. 4.79 — v Tamworth Jockey Club Inc [2003] NSWCA 82 …. 3.126 Gorris v Scott (1874) LR 9 Exch 125 …. 6.25 Goryl v Greyhound Australia Pty Ltd (1994) 120 ALR 605 …. 2.23 Govic v Boral Australian Gypsum Ltd [2015] VSCA 130 …. 2.64, 6.10 GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 …. 7.39 Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47 …. 3.117 Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099 …. 4.80 — v — [2002] HCA 54 …. 4.80, 4.91 Gramotnev v Queensland University of Technology [2015] QCA 127 …. 3.80, 3.85 Grant v Downs (1976) 135 CLR 674 …. 13.19 Greatorex v Greatorex [2000] 1 WLR 1970 …. 4.49 Greek Orthodox Community of SA Inc v Ermogenous [2002] SASC 384 …. 3.54 Green v Conato Pty Ltd t/as Narrogin Furnishing (1994) 53 IR 276 …. 13.64 — v Department of Family and Community Services [2013] NSWADT 193 …. 12.31 Gregory v Philip Morris Ltd (1987) 77 ALR 79 …. 3.89 Grey v Pearson (1857) 6 HL Cas 61; 10 ER 1216 …. 2.44 Griffith v Kerkemeyer (1977) 139 CLR 161 …. 5.90 Griffiths v Alcatel Australia Ltd [1999] NSWCA 206 …. 11.66 — v Arch Engineering Co (Newport) Ltd [1968] 3 All ER 217 …. 4.71

— v Queensland [2010] QSC 290 …. 6.9 — v — [2011] QCA 57 …. 6.9, 6.18 Griggs v Australian Securities Commission (1999) 75 SASR 307 …. 8.29 — v Duke Power Co 401 US 424 (1971) …. 12.11 — v Noris Group of Companies (2006) 94 SASR 126 …. 3.85 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 …. 5.99, 5.100 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 …. 8.23 Groavac v Pearce McMaugh Homes Pty Ltd [1998] NSWSC 66 …. 3.28 Groves v Commonwealth of Australia (1982) 150 CLR 113; [1982] HCA 21 …. 5.84 H Ha v New South Wales (1997) 189 CLR 465; 71 ALJR 1080 …. 1.75, 1.76, 2.12 Haigh v Ireland (Charles W) Ltd [1973] 3 All ER 1137 …. 8.9 Hall v Victorian Amateur Football Association [1999] VCAT 627 …. 12.25 Hall (Inspector of Taxes) v Lorimer [1994] 1 All ER 250 …. 3.12 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 …. 4.7, 4.8, 5.12 Hampic Pty Ltd v Adams [1999] NSWCA 455 …. 4.73, 4.74 Hancock v Wallace [2001] QCA 227 …. 4.39, 4.51 Hanlon v Hanlon Enterprises Pty Ltd [2004] NSWSC 930 …. 6.14 Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 …. 4.61 Hargrave v Goldman (1963) 110 CLR 40 …. 4.3 Harris v Burrell & Family Pty Ltd (ACN 104 734 929) [2010] SASCFC 12 …. 3.55 — v Digital Pulse Pty Ltd [2003] NSWCA 10 …. 3.108

Harrison v Melhem [2008] NSWCA 67 …. 2.78 Hartley v Mayoh & Co [1954] 1 QB 383 …. 6.23 Haseldine v South Australia (2007) 96 SASR 530; [2007] SASC 39 …. 4.16 Hatton v Sutherland [2002] 2 All ER 1; [2002] EWCA Civ 76 …. 4.52, 4.53, 4.56 Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473 …. 11.55, 11.56, 11.57 Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298 …. 3.67 Hawkesbury City Council v Sammut [2002] NSWCA 18 …. 10.3 Hawkins v Clayton (1988) 164 CLR 539 …. 3.84, 4.89 — v M W & K F Hawkins Hotel Pty Ltd [2002] NSWCC 37 …. 11.74 Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18 …. 3.5 Haynes & Callaghan v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 …. 7.58 — v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 …. 9.42, 9.43 — v McNeil (1906) 8 WALR 186 …. 3.85 Hayward v Georges Ltd [1966] VR 202 …. 3.117 HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 …. 6.30, 6.38, 10.10 He Kaw Teh v R (1985) 157 CLR 523 …. 13.7, 13.71 Healey v Delta Electricity [2000] NSWCC 21 …. 11.90, 11.96 Health and Safety Executive v Thames Trains Ltd [2003] EWCA Civ 720 …. 4.84, 6.20 Health Insurance Commission v Van Reesch [1996] FCA 1118 …. 11.27 Heasmans v Clarity Cleaning Co [1987] ICR 949 …. 3.116 Heffernan and Comcare (Compensation) [2015] AATA 655 …. 2.56

Heil v Suncoast Fitness [2000] 2 Qd R 23 …. 6.11 Heli-Aust Pty Ltd v Cahill [2011] FCAFC 62 …. 2.18 Henry Walker Eltin Contracting Pty Ltd v Briggs [2002] WASCA 53 …. 7.55 Henthorn v Fraser [1892] 2 Ch 27 …. 3.45 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 …. 5.60 Her Majesty’s Commissioners of Customs and Excise v Barclays Bank plc [2006] UKHL 28 …. 4.68 Herbert v Harold Shaw Ltd [1959] 2 QB 138 …. 6.23 Herning v GWS Machinery Pty Ltd [2005] NSWCA 263 …. 5.33 Hetherington v Mirvac Pty Ltd [1999] NSWSC 443 …. 4.20, 6.30 Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 …. 11.74, 11.98 Heydon’s case, Re (1584) 3 Co Rep 7a; 76 ER 637 …. 2.46 HG v R (1999) 197 CLR 414; [1999] HCA 2 …. 13.48, 13.49 Higgins v Galibal Pty Ltd (t/as Hotel Nikko Darling Harbour) (1998) 45 NSWLR 45 …. 11.28, 11.82, 11.83 Higgon v O’Dea [1962] WAR 140 …. 2.40 Hill v Brambles Holdings Ltd (1987) AWCCD ¶73-833 …. 11.81 Hill (t/as RF Hill & Associates) v Van Erp (1997) 188 CLR 159 …. 4.89, 4.91 Hillman v Ferro Con (SA) Pty Ltd (in liq) [2013] SAIRC 22 …. 8.18 Hilton v Thomas Burton (Rhodes) Ltd [1961] 1 All ER 74 …. 3.116 Hislop v Lynx Express Parcels [2003] SLT 785 …. 6.32 HJ Heinz Co Aust Ltd v Turner (1998) 81 IR 421 …. 12.41, 12.42 HL v Canada (Attorney-General) [2005] 1 SCR 401 …. 3.119 Ho v Akai Pty Ltd (in liq) (2006) 24 ACLC 1526; [2006] FCAFC 159 …. 8.35 Hockey v Yelland (1984) 157 CLR 124 …. 11.22, 11.24 Hogan v Riley [2009] FMCA 269 …. 13.59

— v — [2010] FCAFC 30 …. 13.59 Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222 …. 11.104 Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629; 2 AWCR 400 …. 5.47, 11.85 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263; [2001] HCA 44 …. 3.3, 3.9, 3.12, 3.18, 3.19, 3.25, 3.26, 3.27, 3.30, 3.37, 3.110, 3.132, 11.8 — v Vabu Pty Ltd (t/as Crisis Couriers) [1999] NSWCA 334 …. 3.17 Homecare Direct Shopping Pty Ltd v Gray [2008] VSCA 111 …. 3.23, 3.85 Honeysett v R [2014] HCA 29 …. 13.39, 13.48 Hookham v R (1994) 181 CLR 450; [1994] HCA 52 …. 1.63 Hopper v Mt Isa Mines Ltd (1997) EOC ¶92-879 …. 12.76 Horne v Press Clough Joint Venture (1994) EOC ¶92-556 …. 12.75, 12.77 Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368 …. 8.18 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 …. 3.78 House v Forestry Tasmania & Attorney-General for Tasmania (1995) 5 Tas SR 169 …. 2.31 Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215 …. 4.93 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 …. 5.92 Hoyts Pty Ltd v Burns [2003] HCA 61 …. 4.70 Hubbard and Military Rehabilitation and Compensation Commission [2009] AATA 363 …. 11.29, 11.46 Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd (No 7) [2014] VSC 542 …. 6.10

Hughes v Western Australian Cricket Association (1986) ATPR ¶40725 …. 1.38 — v Winter [1955] SASR 238 …. 2.55 Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 …. 12.67, 12.71 Humberstone v Northern Timber Mills (1949) 79 CLR 389 …. 3.25 Hume Steel Ltd v Peart (1947) 75 CLR 242 …. 11.21 Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 …. 11.54 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 …. 5.60 Hunter v British Coal Corp [1998] 2 All ER 97 …. 4.51 Hunter Area Health Service v Presland [2005] NSWCA 33 …. 4.91 Hunter Quarries Pty Ltd v New South Wales (Dept of Trade & Investment) [2014] NSWSC 1580 …. 7.26, 9.34, 13.59 Hurd v Zomojo Pty Ltd [2015] FCAFC 148 …. 9.29 Hurling v Haynes (1987) Aust Torts Reports ¶80-103 …. 4.78 Hussein v Secretary DIMA (No 2) [2006] FCA 1263 …. 3.62 Hutton v Southern Pathology Services [2001] NSWCA 319 …. 5.26 HWE Mining Pty Ltd v Robertson [2015] WASCA 26 …. 9.11 Hydro-Québec v Syndicat des Employées de Techniques Professionelles et de Bureau d’Hydro-Québec, Section Local 2000 (SCFP-FTQ) 2008 SCC 43 …. 12.64 I ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 …. 11.55, 11.95 Illawarra Area Health Service v Dell [2005] NSWCA 381 …. 5.21 Illawarra Retirement Trust v Jesionkowski [2001] NSWCA 286 …. 5.14 Ilosfai v Excel Technik Pty Ltd [2003] QSC 275 …. 4.54 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 ….

6.28 Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 …. 3.71 Inco Europe Ltd v First Choice Distribution (a firm) [2000] 2 All ER 109; [2000] 1 WLR 586 …. 2.44 Independent Transport Safety & Reliability Regulator v Australian Rail Track Corporation [2010] NSWSC 697 …. 9.48 Inspector Aldred v Herbert [2007] NSWIRComm 170 …. 8.48 Inspector Atkins v Network Productions Personnel Pty Ltd [2004] NSWIRComm 71 …. 7.41 Inspector Belley v Freight Rail Corporation [2002] NSWIRComm 281 …. 2.64 Inspector Bultitude v Wideform Constructions Pty Ltd [2002] NSWCIMC 16 …. 13.38 Inspector Callaghan v Starr (1992) AIHSW ¶52-909 …. 9.3 Inspector Ching v Bros Bins Systems Pty Ltd [2003] NSWIRComm 386 …. 8.9 — v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73 …. 8.16 — v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213 …. 8.9, 8.16, 8.17 Inspector Clarke v W C Meinhardt and Partners Pty Ltd (Matter Nos 1212 and 1213 of 1990, Fisher CJ, 30 June 1992, unreported) …. 7.49 Inspector Constable v Willmott Forests Ltd [2005] NSWCIMC 120 …. 9.52 Inspector Dell v Teeling [2010] NSWIRComm 53 …. 9.52 Inspector Estreich v Zaccardelli [2012] NSWIRComm 47 …. 9.2 Inspector Fraser v Karabelas [2011] NSWIRComm 56 …. 13.68 — v Maples [2003] NSWCIMC 73 …. 8.6 Inspector Graeme Keith Aldred v Salamander Shores Hotel Pty Ltd [2008] NSWIRComm 102 …. 8.48 Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163

…. 8.48 Inspector James v Ryan [2009] NSWIRComm 215 …. 7.27, 8.32 — v — (No 3) [2010] NSWIRComm 127 …. 8.33 — v Sunny Ngai [2007] NSWIRComm 203 …. 8.47 Inspector Jones v Challita [2005] NSWIRComm 385 …. 9.3 — v — [2006] NSWIRComm 207 …. 9.3 Inspector Kumar v Ritchie [2006] NSWIRComm 323 …. 8.44 — v Rose [2006] NSWIRComm 325 …. 8.44 Inspector Lancaster v CKR Pty Ltd [2010] NSWIRComm 71 …. 8.6 Inspector Larkin v South Pacific Seeds Pty Ltd [2006] NSWIRComm 247 …. 7.8 Inspector MacKenzie v Fujifilm Australia Pty Ltd (formerly Hanimex Pty Ltd) [2006] NSWIRComm 74 …. 8.15 Inspector Mackintosh v Phillips (Chief Industrial Magistrate; Case No 91/491, 5 May 1992, unreported) …. 13.87 Inspector Mason v Graham Allen Chapman [2013] NSWIRComm 71 …. 8.8 Inspector Nguyen v Western Sydney Area Health Service [2003] NSWIRComm 268 …. 7.56 Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40 …. 8.47 Inspector Ochoa v East Sun Building Pty Ltd & Gao [2010] NSWIRComm 91 …. 7.27 Inspector Page v Metropolitan Demolitions Pty Ltd (CIM Miller, 94/1660, 30 May 1995, unreported) …. 9.19 Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 …. 10.16, 13.70 Inspector Rand v Corcoran [2013] NSWIRComm 88 …. 8.17 Inspector Reynolds v Ocean Parade Pty Ltd [2006] NSWIRComm 400 …. 13.37 Inspector Robinson v Lovells Springs Pty Ltd [2005] NSWIRComm

375 …. 9.6 Inspector Rowe v Stephensons Cranes Pty Ltd and Soltau [2010] NSWIRComm 68 …. 9.3, 13.8 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182 …. 9.52 Inspector Spence v Aleksic Carpentry Pty Ltd [2012] NSWIRComm 45 …. 8.8 Inspector Vierow v Linddales Pty Ltd [2007] NSWIRComm 255 …. 7.41 Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433 …. 3.73 International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49 …. 1.63 Irwin v Salvation Army (NSW) Property Trust [2007] NSWDC 266 …. 6.15 Iskra v Adar Electrics Pty Ltd (1986) 6 NSWLR 282 …. 10.10 ISS Property Services Pty Ltd v Milovanovic NS [2009] WWCCPD 27 …. 11.39 Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428 …. 13.7, 13.71 Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104 …. 5.92 IW v City of Perth (1997) 191 CLR 1; 146 ALR 696 …. 12.5, 12.32 Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 …. 5.93 J J Blackwood & Son v Skilled Engineering Ltd [2008] NSWCA 142 …. 4.23, 5.93 J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157 …. 4.25 J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 …. 12.45

J-Corp Pty Ltd v Coastal Hire Pty Ltd [2009] WASCA 36 …. 4.76 J Robins & Sons Group Ltd v Ly [2006] NSWWCCPD 162 …. 11.29 Jackson v Work Directions Australia Pty Ltd (1998) 17 NSWCCR 70; [1998] NSWCC 45 …. 11.31 Jacobsen v Rogers (1995) 127 ALR 159 …. 2.65 Jaensch v Coffey (1984) 155 CLR 549 …. 4.4, 4.32, 4.33, 4.49, 4.50, 4.63, 4.89, 4.96 James v Commonwealth (1936) 55 CLR 1 …. 2.23 — v London Borough of Greenwich [2008] EWCA (Civ) 35 …. 3.23 Jayne v National Coal Board [1963] 3 All ER 220 …. 9.13 Jebson v Ministry of Defence [2000] 1 WLR 2055 …. 5.29 Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 …. 11.38 Jeffs v Rio Tinto Ltd [2010] NSWSC 1046 …. 4.27 JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 …. 3.123 JK v State of New South Wales [2014] NSWSC 1084 …. 3.103 Joel v Morison (1834) 6 C & P 501 …. 3.116 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 …. 7.39, 13.67 — v Industrial Court of New South Wales [2011] HCATrans 95 …. 7.39, 13.67 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 …. 6.37 John Summers & Sons Ltd v Frost [1955] AC 740 …. 6.32 Johnson v Buttress (1936) 56 CLR 113 …. 3.72 — v Johnson [2000] HCA 48 …. 13.24 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] 3 All ER 135 …. 12.65 Jolley v London Borough of Sutton [2000] 2 Lloyd’s LR 65 …. 5.57 Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 …. 4.70, 4.72

— v Dunkel (1959) 101 CLR 298 …. 5.62, 9.12 — v Hart (1699) 2 Salk 441; 91 ER 382 …. 3.112 — v Persal & Co [1999] QDC 189 …. 3.87, 5.81 JR & DI Dunn Transport Pty Ltd v Wilkinson [2015] NSWWCCPD 38 …. 11.52 Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 …. 6.20 Junkovic v Neindorf [2004] SASC 325 …. 5.17 K K & S Lake City Freighters Proprietary Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 …. 2.43 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 …. 1.63 Kable v Director of Public Prosecutions (DPP) (NSW) (1996) 189 CLR 51; 138 ALR 577 …. 1.21, 1.63, 2.11 Kakavas v Crown Melbourne Ltd [2013] HCA 25 …. 3.74 Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22 …. 1.15 Kashemije Stud Pty Ltd v Hawkes [1978] 1 NSWLR 143 …. 12.27 Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181; 52 ALJR 189 …. 4.8, 5.3 Kavanagh v Akhtar (1998) 45 NSWLR 588 …. 5.46 Keating v Fry [2012] WASC 15 …. 8.47 Keeble v Murray [2014] NSWSC 151 …. 11.13 Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 …. 4.61 Keeling v Commonwealth of Australia [1994] NTSC 113 …. 5.22 Kelly v Secretary, Dept of Family and Community Services [2014] NSWCA 102 …. 11.102 Kennedy v Cordia (Services) LLP [2016] UKSC 6 …. 13.41, 13.44, 13.48, 13.51 Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286;

[2000] HCA 45 …. 1.72, 11.28 Kennelly v Incitec Ltd [1998] FCA 1470 …. 3.149 Keppel Bus Co v Sa’ad bin Ahmed [1974] 1 WLR 1082 …. 3.119 Kimberly-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264 …. 4.37 King v Milpurrurru (1996) 136 ALR 327 …. 4.85 — v Philcox [2015] HCA 19 …. 4.36, 4.64, 5.97 Kingshott v Goodyear Tyre & Rubber Co Aust Ltd (No 2) (1987) 8 NSWLR 707 …. 5.12, 6.34 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 …. 2.43, 2.49 Kirby v JKC Australia LNG Pty Ltd [2015] FCA 1070 …. 9.37 — v — (No 2) [2015] FCA 1113 …. 9.37 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 …. 1.55, 1.76, 7.37, 7.38, 7.39, 9.11, 13.8, 13.71, 13.80, 13.90 Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 86 …. 13.73 Kirkby v A & MI Hanson Pty Ltd (1994) 55 IR 40 …. 7.27, 7.48, 9.19 Kirwin v Pilbara Infrastructure Pty Ltd [2012] WASC 99 (S) …. 9.11 KLB v British Columbia [2003] 2 SCR 403 …. 3.119 Klein v Minister for Education [2007] HCA 2 …. 11.12 Klesteel Pty Ltd v Mantzouranis [2008] NSWSC 194 …. 3.116 Knight v Pedersen [1999] NSWCA 333 …. 4.39 — v State of New South Wales [2001] NSWSC 1096 …. 3.125 Kociolek v Alexandros Investments Pty Ltd (SC(ACT) Higgins J, SCA No 25 of 1991, 17 July 1991, unreported) …. 13.43 Koehler v Cerebos (Aust) Pty Ltd (2005) 222 CLR 44; [2005] HCA 15 …. 4.56, 4.57, 4.59 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 …. 4.21,

4.25, 6.14, 6.30 Kondis v State Transport Authority (1984) 154 CLR 672 …. 3.135, 3.136, 3.137, 4.8, 4.10, 4.13 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 …. 3.146 Kortegast v Williamson [2002] NSWSC 1134 …. 11.43, 11.47 Koufos v Czarnikow Ltd [1969] 1 AC 350 …. 5.6 Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 …. 5.80 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 …. 5.15 Kuru v New South Wales [2008] HCA 26 …. 13.57 L Lachley Meats Pty Ltd v Sinfield [2001] NSWCA 340 …. 5.79 Lai See Law bht Protective Commissioner of New South Wales v Yan Mo [2009] NSWSC 639 …. 3.72 Lamb v Cotogno (1987) 164 CLR 1 …. 4.8, 5.67 Lange v Australian Broadcasting Corporation (1997) 71 ALJR 818 …. 2.22 Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6 …. 6.39 Lanza v Codemo [2001] NSWSC 72 …. 4.75 Lapcevic v Collier [2002] NSWCA 300 …. 4.72 Larné-Jones v Human Synergistics Australia Ltd [2015] FCCA 968 …. 12.55 Larson v Commissioner of Police [2004] NSWCA 126 …. 11.40 Laugher v Pointer [1826] 5 B&C 547 …. 3.5 Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93 …. 12.34, 12.45 — v — (No 2) [2003] NSWADT 140 …. 12.45 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New

South Wales (Inspector Ch’ng) (1999) 90 IR 464 …. 9.39 Laws v GWS Machinery Pty Ltd [2007] NSWSC 316 …. 4.75 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 …. 12.35 Le Cornu Furniture and Carpet Centre Pty Ltd v Hammill (1998) 70 SASR 414 …. 4.20 Lee v Transpacific Industries Pty Ltd (2013) 62 AAR 63 …. 11.57 Leerdam v Noori [2009] NSWCA 90 …. 1.70 Leichhardt Municipal Council v Montgomery [2007] HCA 6 …. 3.135 Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 …. 4.26, 4.27, 4.95, 13.71 Lenz v Trustees of the Catholic Church [2005] NSWCA 446 …. 6.14, 6.24, 6.31, 6.39 Leorke v R [2011] VSCA 213 …. 8.19 Lepore v New South Wales [2001] NSWCA 112 …. 3.121, 3.125, 3.126, 3.127, 3.128, 3.129, 3.138 Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 …. 3.45 Li v Toyota Motor Corporation Australia Ltd [2010] VSC 458 …. 6.10 Liftronic Pty Ltd v Unver [2001] HCA 24 …. 1.39, 4.8 Lilley v Alpine Resorts Commission (1998) Aust Torts Rep ¶81-475 …. 5.52 Lindner v Wright (1976) 14 ALR 105 …. 2.44 Linfox Armaguard Pty Ltd v Farrell [2005] SASC 44 …. 10.18, 10.23 Linfox Resources Pty Ltd v R; Downer EDI Mining Pty Ltd v R; Thiess Pty Ltd v R [2010] VSCA 319 …. 8.39 Lipman Pty Ltd v McGregor [2004] NSWCA 6 …. 4.21 Lipovac v Hamilton Holdings Pty Ltd (SC(ACT), 13 September 1996, unreported) …. 13.52

Lister v Hesley Hall Ltd [2001] UKHL 22 …. 3.119, 3.120, 3.121, 3.122, 3.124 — v Romford Ice & Cold Storage Co Ltd [1957] AC 555 …. 3.102, 3.103, 3.105, 3.107, 3.112, 12.27 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 …. 13.39 Liverpool City Council v Irwin [1977] AC 239 …. 12.27 Lloyd v Grace, Smith & Co [1912] AC 716 …. 3.121 London Passenger Transport Board v Upson [1949] AC 155 …. 6.3, 6.22 Lord Mayor, Councillors and Citizens of The City of Melbourne v Commonwealth (1947) 74 CLR 31 …. 2.22 Lorelle Dippert v Cliff Luxford and Vrachnas Betabake Pty Ltd (HREOC, R Graycar, No H95/97, 18 July 1996, unreported) …. 12.77 Louth v Diprose (1992) 175 CLR 621 …. 3.73, 3.74, 3.75 Lovric v WorkCover Authority of New South Wales [2007] NSWSC 898 …. 4.84 — v — (No 2) [2008] NSWSC 376 …. 4.84 Luff v Oakley [1986] ACTSC 4 …. 3.131 Lynch v Grafton Sawmilling [2009] NSWADT 102 …. 12.55 M M v Dental Board of Queensland [2011] QCAT 373 …. 12.24 Mabo v Queensland (No 2) (1992) 175 CLR 1 …. 1.46, 1.50, 1.51, 1.74 Macdonald v Shinko Australia Pty Ltd [1998] QCA 53 …. 3.66 Macey v Macquarie Generation & HIS Engineering Pty Ltd [2007] NSWDC 242 …. 6.15 MacKinnon v Bluescope Steel (AIS) Pty Ltd [2007] NSWSC 774 …. 4.61

— v — (AIS) Pty Ltd [2009] NSWCA 94 …. 4.61 Maclenan v Segar [1917] 2 KB 325 …. 4.70 Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 …. 3.123 Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 …. 6.14, 6.30, 6.44 Magill v Boral Gas (Australia) Pty Ltd (1993) 53 IR 7 …. 13.71 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 …. 5.46, 5.65, 5.83 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239 …. 7.49, 10.16 Majrowski v Guys and St Thomas’ NHS Trust [2006] UKHL 34 …. 3.111, 6.28 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 …. 13.48, 13.49, 13.50 Malik v Bank of Credit & Commerce International SA (in liq); Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23; [1998] AC 20 …. 3.97, 3.107 Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 …. 5.92 Mambare Pty Ltd t/as Valley Homes v Bell [2006] NSWCA 332 …. 4.23 Mannall v New South Wales [2001] NSWCA 327 …. 4.43, 4.54 Manning v New South Wales Sugar Milling Co-operative Ltd [2003] NSWCA 230 …. 11.27 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 …. 5.44, 5.62, 5.78 Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 …. 4.23 Marks & Spencer plc v Palmer [2001] EWCA Civ 1528 …. 6.35

Markuse v Western Sydney Area Health Service (SC(NSW), Grove J, 30 July 1992, unreported) …. 10.3 Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39 …. 13.26 Marryat Westminster Bank Ltd, Re v Hebcroft (1948) 1 Ch 298 …. 4.16 Marshall v Holroyd Municipal Council (SC(NSW), Court of Appeal, Handley, Sheller and Powell JJA, CA 40504/92, 15 November 1996, unreported) …. 5.23 — v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168 …. 5.21 — v Watson (1972) 124 CLR 640; [1972] HCA 27 …. 2.44 Marshall v Whittaker’s Building Supply Company (1963) 109 CLR 210; [1963] HCA 26 …. 3.26 Martel Building Ltd v Canada [2000] SCC 60 …. 4.68 Martin v Teeling [2010] NSWSC 814 …. 4.38 Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438 …. 3.24 Matthew Bros Ltd, Re [1962] VR 262 …. 3.148 Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 2) [2011] VSC 168 …. 6.22 Mattis v Pollock [2003] EWCA Civ 887; [2003] 1 WLR 2158 …. 3.127, 3.130 Matton Developments Pty Ltd v CGU Insurance Ltd (No 2) [2015] QSC 072 …. 6.4 Mauger v Krcmar Engineering Pty Ltd (1993) 47 IR 359 …. 9.43 Maxwell v Murphy (1957) 96 CLR 261 …. 2.62 Mayhew v G & S Mayhew Pty Ltd (1995) 12 NSWCCR 398 …. 11.54 McCloy v New South Wales [2015] HCA 34 …. 2.22 McClure v Commonwealth [1999] NSWCA 392 …. 3.116 McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39 ….

3.11 McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906 …. 4.8, 4.11 McDonald v National Grid Electricity Transmission Plc [2014] UKSC 53 …. 6.3 McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297 …. 6.34 McDonalds Australia Ltd v Therma Truck Pty Ltd [2002] NSWCA 268 …. 5.83 McGee, Re: Inquiry into Elections for Office in Transport Workers’ Union [1992] FCA 107 …. 3.52 McGhee v National Coal Board [1972] 3 All ER 1008 …. 5.58, 5.59 McGill University Health Centre (Montreal General Hospital) v Syndicat des Employés de l’Hôpital Général de Montréal, [2007] 1 SCR 161, 2007 SCC 4 …. 12.64 McGrath v Fairfield Municipal Council (1985) 156 CLR 672 …. 3.103 McGraw v Commonwealth Bank of Australia Ltd [2002] NSWCC 56 …. 11.59 McKie v Al-Hasani and Kenoss Contractors Pty Ltd (in liq) [2015] ACTIC 1 …. 8.31, 8.43, 8.46 McLean v Kowald [1974] SASR 384 …. 2.57 — v Tedman (1984) 155 CLR 306 …. 4.7, 5.22, 5.23, 5.79 McMahon v Lagana [2004] NSWCA 164 …. 11.40 McManus v Scott-Charlton (1996) 140 ALR 625 …. 3.99 McMartin v Newcastle Wallsend Coal Co Pty Ltd [2004] NSWIRComm 202 …. 8.26, 8.27, 8.29, 9.16 McMillan, Brittan & Kell Pty Ltd v WorkCover (1999) 89 IR 464 …. 8.7 McWilliams v Sir Williams Arrol & Co [1962] 1 WLR 295 …. 5.43, 6.29

Mechanical Advantage Group Pty Ltd v George [2003] NSWCA 121 …. 11.69 Medina v Danbury Sales (1971) Ltd (1991) 30 ACWS (3rd) 770 …. 4.85 Melbourne Corporation v Barry (1992) 31 CLR 174 …. 2.63 Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 …. 3.106 Mercer v ANZ Banking Group Ltd (1998) 17 NSWCCR 264; [1998] NSWCC 55 …. 11.87 — v — (2000) 48 NSWLR 740; 2 AWCR 544; [2000] NSWCA 138 …. 11.40, 11.44, 11.87, 11.88, 11.89, 11.90, 11.93, 11.95, 11.96, 11.97, 11.99 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500; [1995] 3 All ER 918 …. 9.29, 13.76 Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 …. 3.31, 3.34 Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336 …. 6.3 MGH Plastic Industries Pty Ltd v Zickar (1994) 34 NSWLR 617 …. 11.23 Microsoft Corporation v Auschina Polaris Pty Ltd (1996) 71 FCR 231 …. 4.85 Midalco Pty Ltd v Rabenalt [1989] VR 461 …. 5.68 Middleton v Erwin [2009] NSWSC 108 …. 4.75 — v Fowler (1698) 1 Salk 282; 91 ER 247 …. 3.112 Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1 …. 4.8, 5.6, 5.12 Miletic v Capital Territory Health Commission (1995) 130 ALR 591 …. 5.11 Miljus v CSR Ltd [2010] NSWSC 569 …. 6.14 Miller v Commissioner of Police NSW [2004] NSWCA 356 …. 11.36

— v Minister of Pensions [1947] 2 All ER 372 …. 13.6 Millington v Wilkie t/as Max Wilkie Plumbing Services (2005) 62 NSWLR 322; [2005] NSWCA 45 …. 6.14, 6.38, 6.39 Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40 …. 2.44 Minogue v Rudd [2012] NSWSC 305 …. 6.13 Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 …. 11.63 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 …. 13.61 Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27 …. 2.11 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 …. 4.6, 4.70, 4.86 Mohammed Ali v Saad Bros Constructions Pty Ltd [2001] NSWCC 109 …. 11.11 Mohamud v WM Morrison Supermarkets plc [2014] EWCA Civ 116 — v — [2016] UKSC 11 …. 3.120, 3.130 Moltoni Corporation Pty Ltd v QBE Insurance Ltd [2001] HCA 73 …. 3.104 Monier Ltd (t/as Reliance Roof Tiles) v Szabo (1992) 28 NSWLR 53 …. 2.50, 2.72, 3.3 Monis v R [2013] HCA 4 …. 2.22 Montreal v Montreal Locomotive Works [1947] 1 DLR 161 …. 3.12 Moore v Fielders Steel Roofing Pty Ltd [2003] SAIRC 75 …. 3.7 Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152 …. 3.6 — v R (2011) 215 A Crim R 33; [2011] NSWCCA 257 …. 13.48 — v Tame [2000] NSWCA 121 …. 4.42, 4.47 Morris v C W Martin & Sons Ltd [1966] 1 QB 716 …. 3.121 — v Warman International Ltd (Industrial Relations Court of Aust,

Judicial Registrar Tomlinson, No 513/96, 11 October 1996, unreported) …. 12.58 — v Warman International Ltd [1996] IRCA 511 …. 3.100 Morrison v Bulga Coal Management Pty Ltd [2008] NSWIRComm 243 …. 13.60 — v Cahill [2007] NSWIRComm 114 …. 9.50 — v Gardner [2003] NSWIRComm 440 …. 9.3 — v GPR Engineering (Central Coast) Pty Ltd [2003] NSWIRComm 56 …. 7.41 — v Hams [2002] NSWIRComm 216 …. 7.51 — v Milner [2008] NSWIRComm 77 …. 13.89 — v — [2009] NSWIRComm 57 …. 7.27 — v Powercoal Pty Ltd [2003] NSWIRComm 416 …. 9.51 — v — [2004] NSWIRComm 297 …. 8.29 — v — (No 3) [2005] NSWIRComm 61 …. 8.29 — v Tecrete Industries Pty Ltd [2003] NSWIRComm 371 …. 7.41 Morrison Sports Ltd v Scottish Power [2009] ScotCS CSIH 92 …. 6.22 — v — [2010] UKSC 37 …. 6.22 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 …. 4.32, 4.35, 4.37, 4.42, 4.43, 4.51 Mulcahy v Minister for Defence [1996] 2 WLR 474 …. 5.84 Muldoon v R; Carter v R [2008] NSWCCA 315 …. 13.46 Muller v Lalic [2000] NSWCA 50 …. 5.46 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; [2005] HCA 63 …. 5.11, 5.37 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 …. 6.26, 6.27, 10.3, 10.5, 10.9 Municipal Association of Victoria, Re (1991) 31 AILR ¶163 …. 3.15 Murphy v Brentwood District Council [1991] 1 AC 398 …. 1.71

— v State of Queensland (Darling Downs Hospital and Health Service) [2015] QIRC 129 …. 3.46 Murray v Shillingsworth [2006] NSWCA 367 …. 11.88 Muscat v Woolworths Ltd [2000] NSWCC 16 …. 11.90, 11.96 Musumeci v GEM Engines Pty Ltd [2002] NSWCC 8 …. 11.60, 11.91 Mutton, Estate of v Howard Haulage Pty Ltd [2007] NSWCA 340 …. 6.15, 10.2, 10.6 N NA v Nottinghamshire County Council [2015] EWCA Civ 1139 …. 3.124, 3.139 Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 …. 5.56 Nagle v Rottnest Island Authority (1993) 177 CLR 423; 112 ALR 393; Aust Torts Rep ¶81-211 …. 5.36, 5.50 Nair-Smith v Perisher Blue Pty Ltd [2012] NSWSC 1070 …. 13.51 Najdovska v Australian Iron & Steel Pty Ltd (1985) EOC ¶92-140 …. 12.12 — v — [1986] EOC ¶92-176 …. 12.19 Najjar v Haines (1991) 11 BCL 315 …. 13.24 Namoi Cotton Co-Operative Ltd v Easterman (as administrator of the estate of Zara Lee Easterman) [2015] NSWWCCPD 29 …. 11.63 Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36 …. 13.62 — v Glennies Creek Coal Management Pty Ltd; Nash v Integra Coal Operations Pty Ltd (No 9) [2015] NSWIC 15 …. 9.48 National Hire Pty Ltd v Howard [2003] NSWIRComm 144 …. 8.14 National Westminster Bank plc v Spectrum Plus Ltd [2005] UKHL 41 …. 1.75, 1.76

Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377 …. 3.139, 4.58 — v Wills (1992) 177 CLR 1 …. 2.22 Nau v Kemp & Associates [2010] NSWCA 164 …. 5.83 Neale v Commonwealth Bank of Australia Ltd [2015] NSWCA 136 …. 13.26 Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 …. 5.12, 9.12 Neindorf v Junkovic [2005] HCA 75 …. 5.18 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 …. 5.12, 5.15 — v Nelson (1995) 184 CLR 538 …. 3.62 New South Wales v Coffey [2002] NSWCA 361 …. 4.54 — v Commonwealth (1990) 169 CLR 482 …. 2.20 — v Commonwealth of Australia [2006] HCA 52 …. 2.17, 2.20 — v Donnelley [2004] NSWCA 133 …. 5.92 — v Eade [2006] NSWSC 84 …. 3.103 — v Fahy [2007] HCA 20 …. 4.8, 4.52, 4.59, 4.60, 5.9, 5.11 — v Jeffery [2000] NSWCA 171 …. 4.43 — v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412; [2003] HCA 4 …. 3.12, 3.111, 3.121, 3.122, 3.126, 3.130 — v Mannall [2005] NSWCA 367 …. 4.57 — v Napier [2002] NSWCA 402 …. 4.54 — v Rattenbury [2015] NSWWCCPD 46 …. 11.19 — v Seedsman [2000] NSWCA 119 …. 4.42, 4.43 New South Wales (Dept of Education and Training and Dept of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33 …. 9.48 Newcastle City Council v GIO General Ltd (1997) 149 ALR 623 ….

2.67, 2.78 Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339 …. 8.29, 9.16, 9.50 Nguyen v Nguyen (1990) 169 CLR 245 …. 1.69, 1.72 Nicholls v Austin (Leyton) Ltd [1946] AC 493 …. 6.26 Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 …. 6.36, 6.37 Nield v Mathieson [2014] FCAFC 74 …. 3.55 Nonferral (NSW) Pty Ltd v Taufia [1998] NSWSC 49 …. 1.70 — v — (1998) 43 NSWLR 312 …. 3.62 Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 …. 11.39 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 71 ALJR 1428 …. 3.132, 4.24, 4.72, 6.8, 6.33 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 …. 5.92, 13.15 NSW Police Force v Hain [2015] NSWWCCPD 11 …. 11.102 Nunan v Cockatoo Docks & Engineering Co Pty Ltd (1941) 41 SR (NSW) 119 …. 11.42, 11.52 Nunin Holdings Pty Ltd v Tullamarine Estates Pty Ltd [1994] 1 VR 74 …. 3.45 Nydam v R [1977] VR 430 …. 9.26 O Oakley v Luff [1987] FCA 95 …. 3.131 Oaks Hotels and Resorts (Qld) Pty Ltd v Blackwood [2014] ICQ 23 …. 11.57 O’Brien v T F Woollam & Son Pty Ltd [2001] QSC 217 …. 6.11, 6.16 Oceanic Crest v Pilbara Harbour Services (1986) 160 CLR 626 …. 3.6

O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 …. 4.8 — v SP Bray Ltd (1937) 56 CLR 464 …. 6.9, 6.10 Official Trustee in Bankruptcy v Concut Pty Ltd [1999] QCA 3 …. 3.85 O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 …. 4.55 O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 …. 11.57 On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) (2011) 206 IR 252; [2011] FCA 366 …. 3.27 O’Neill v Burton Cables Pty Ltd (1986) EOC ¶92-159 …. 12.25 — v Lumbey (1987) 11 NSWLR 640 …. 11.23, 11.24, 11.64 Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371 …. 5.84 Orbit Drilling Pty Ltd v R; Smith v R [2012] VSCA 82 …. 8.19, 9.29, 9.32, 9.39 O’Reilly v Commonwealth Hostels Ltd [1964–5] NSWR 686 …. 10.3 — v Henson t/as Cavalier Foods [2002] QDC 70 …. 6.17, 6.18 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2) [1967] 1 AC 617 …. 5.6, 5.57 — v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1) [1961] AC 388 …. 5.57 P P & M Quality Smallgoods Pty Ltd v Seng [2013] NSWCA 167 …. 4.20 P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72 …. 13.77 PAB Security Pty Ltd v Mahina [2009] NSWCA 125 …. 5.48

Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406 …. 4.14, 4.26 Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108 …. 5.15 — v Tall Ships Sailing Cruises Australia Pty Ltd [2014] QSC 212 …. 5.15 Page v Smith [1996] AC 155 …. 4.32 Paige v Freight Hire (Tank Haulage) Ltd [1981] 1 All ER 394 …. 12.65 Panesar v Nestle Co Ltd [1980] ICR 144 …. 12.60 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 …. 4.25 Pape v Commissioner of Taxation [2009] HCA 23 …. 2.20 Paris v Stepney Borough Council [1951] AC 367 …. 4.6, 5.20 Park v Peach [1967] VR 558 …. 3.118 Parry v Woolworths Ltd [2009] QCA 26 …. 6.9 Parsons v JJ Richards & Sons Pty Ltd [2008] NSWCA 331 …. 5.14 Parsons Brinckerhoff Australia Pty Ltd v Vanceva [2011] NSWWCCPD 72 …. 11.75 Pasqualotto v Pasqualotto [2013] VSCA 21 …. 6.3, 6.10 Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275 …. 4.54 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 …. 5.34, 5.98 Pearce v BHP Steel (AWI) Pty Ltd (1998) 85 IR 305 …. 8.13 — v Florenca (1976) 135 CLR 507 …. 2.11 — v Foster (1886) 17 QBD 536 …. 3.107 Peckham v Moore [1975] 1 NSWLR 353 …. 3.60, 11.15 Peitsos v Hamandos (1984) Aust Torts Rep ¶80-524 …. 10.10

Penrith Rugby League Club Ltd t/as Cardiff Panthers v Elliot [2009] NSWCA 247 …. 5.13 Percy v Central Control Financial Services Pty Ltd [2001] QCA 226 …. 6.11 — v Church of Scotland Board of National Mission [2005] UKHL 73; [2006] 2 WLR 353 …. 3.54 Perilya Ltd v Nash [2015] NSWSC 706 …. 9.34 Perre v Apand Pty Ltd (1999) 198 CLR 180; 73 ALJR 1190; [1999] HCA 36 …. 4.90, 4.91, 4.92 Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253; [1998] NSWCC 14 …. 11.27 Personnel Contracting Pty Ltd v CFMEU [2004] WASCA 312 …. 3.36 Peters v H & B Investments Pty Ltd (1995) 11 NSWCCR 377 …. 10.3 Pham v Lawson (1997) 68 SASR 124 …. 4.39 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 …. 1.59 Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 …. 6.21, 6.22 Phoenix Society Inc v Cavenagh (1996) 25 MVR 143 …. 3.115 Piening v Wanless (1968) 117 CLR 498 …. 5.41 Pioneer Construction Material Pty Ltd v Millsom [2002] NSWCA 258 …. 5.51 Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 …. 11.44 — v — [2015] NSWCA 222 …. 11.57 Piro v W Foster & Co Ltd (1943) 68 CLR 313 …. 6.42 Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148 …. 3.136, 3.137 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 …. 1.19

Plexvon Pty Ltd (in liq) v Brophy [2006] NSWCA 304 …. 3.38 Police Association of New South Wales v Commissioner of Police, New South Wales Police Force [2010] NSWADT 56 …. 12.10 Police Service of New South Wales v Honeysett [2001] NSWCA 452 …. 3.103 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 …. 4.11, 4.14 Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49 …. 13.33 Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 …. 11.88 Port Macdonnell Professional Fishermens’ Association Inc v South Australia (1989) 168 CLR 340 …. 2.11 Power Serve Pty Ltd v Bourk [2009] HCASL 58 …. 6.7, 6.9 Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345 …. 1.63, 8.30, 8.31, 8.34 PQ v Australian Red Cross Society [1992] 1 VR 19 …. 13.47 Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 …. 13.61 President of the Methodist Conference v Preston [2013] UKSC 29 …. 3.54 Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 …. 9.29, 13.77 Prior v Sherwood (1906) 3 CLR 1054 …. 2.54 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 2.43 Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 …. 4.6 Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28 …. 13.70 Przibilla v Department of Education and Training (NSW) [2004] NSWCIMC 4 …. 9.52 PRP Architects v Reid [2006] EWCA Civ 1119 …. 8.9

Pupazzoni v Fremantle Fishermen’s Co-operative Society Ltd [1981] AILR ¶168 …. 3.96 Purvis v New South Wales (Dept of Education and Training) (2003) 217 CLR 92; [2003] HCA 62 …. 12.13, 12.14, 12.51, 12.52 Pyrenees Shire Council v Day (1998) 192 CLR 330; 72 ALJR 152 …. 4.3, 4.81, 4.89, 4.90, 6.20 Q Qantas Airways Ltd v Cameron (1996) 66 FCR 246 …. 5.52 — v Christie (1998) 152 ALR 365 …. 12.44 — v Da Ros [2010] HCATrans 257 …. 11.101 QBE Insurance (Aust) Ltd v Orcher [2013] NSWCA 478 …. 3.128 QBE Workers Compensation (NSW) Ltd v Simaru Pty Ltd [2005] NSWCA 464 …. 11.8 Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539 …. 3.25 Quilty v Bellambi Coal Co Pty Ltd (1966) 67 SR(NSW) 193 …. 6.23 R R v ACR Roofing Pty Ltd [2004] VSCA 215 …. 3.7 — v Associated Octel Co [1995] ICR 281 …. 7.50 — v — [1996] 4 All ER 846 …. 7.50, 13.7 — v Bata Industries Ltd (No 2) (1992) 70 CCC (3d) 394 …. 8.42, 8.43 — v Boal [1992] 2 WLR 890 …. 8.24 — v Board of Trustees of the Science Museum [1993] 3 All ER 853 …. 7.47 — v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23 …. 2.13 — v Chargot Ltd (t/as Contract Services) [2008] UKHL 73; [2009] 2 All ER 645 …. 7.35

— v Coleman (1990) 19 NSWLR 467 …. 9.29 — v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321; [2006] VSCA 181 …. 7.55, 13.7, 13.72 — v Cotswold Geotechnical Holdings Ltd [2011] EWCA Crim 1337; [2012] 1 Cr App R (S) 26 …. 13.78 — v Crabbe (1985) 156 CLR 464 …. 9.29, 9.30 — v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and O’Sullivan (1938) 60 CLR 601 …. 3.99 — v Denbo Pty Ltd (SC(Vic), Hempel J, 2 June 1994, unreported) …. 13.74 — v Do [2001] NSWCCA 19 …. 9.26 — v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249 …. 9.41 — v FRH Victoria Pty Ltd [2010] VSCA 18 …. 13.38 — v G [2003] UKHL 50 …. 9.29 — v Gateway Foodmarkets Ltd [1997] 3 All ER 78 …. 13.7 — v Harris (1836) 173 ER 198 …. 2.54 — v HM Coroner for East Kent; Ex parte Spooner (1989) 88 Cr App R 10 …. 13.77 — v Holder [1983] 3 NSWLR 245 …. 9.48, 13.68 — v Huggins (1730) 2 Ld Raym 1574; 92 ER 518 …. 3.131 — v Hughes (2000) 171 ALR 155 …. 1.60 — v Ireland (1970) 126 CLR 321 …. 13.63 — v Karger [2001] SASC 64 …. 13.45 — v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 …. 1.62, 1.63 — v Kirkby [2000] 2 Qd R 57 …. 13.88 — v Kite [1996] 2 Cr App R (S) 295 …. 9.26 — v Lavender [2005] HCA 37 …. 9.26 — v Mara (1987) 1 WLR 87 …. 7.50 — v MJR [2002] NSWCCA 129 …. 1.75

— v Moore [2015] NSWCCA 316 …. 4.87, 8.20, 9.26 — v Murray Wright Ltd [1970] NZLR 476 …. 13.77 — v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 331 …. 3.131 — v Northumbrian Water; Ex parte Newcastle and North Tyneside Health Authority [1999] Env LR 715 …. 8.18 — v O’Neill [1979] 2 NSWLR 582 …. 1.38 — v The Mayor, Councillors and Citizens of the City of Dandenong and Noel Bailey (County Court of Vic, Stott J, 8 November 1991, unreported) …. 7.50, 8.24 — v Thomson; R v Houlton [2000] NSWCCA 309 …. 9.47 — v Walker (1858) 27 LJ MC 207 …. 3.10 — v Wright [1980] VR 593 …. 13.41 Rabay v Bristow [2005] NSWCA 199 …. 4.23 Racing NSW v NSW Self Insurance Corp [2008] NSWSC 6 …. 11.13 RailPro Services Pty Ltd v Flavel [2015] FCA 504 …. 12.10 Raines v Bayebb Pty Ltd [2002] NSWCA 197 …. 11.65 Rainham Chemical Works Ltd (in liq) v Belvedere Fish Guano Co Ltd [1921] 2 AC 465 …. 4.85 Ramsey Butchering Services Pty Ltd v Blackadder [2003] FCAFC 20 …. 3.93 Rauk v Transtate Pty Ltd [2000] NSWSC 1020 …. 3.28, 3.31, 3.32, 4.18, 6.30, 10.10 Rawson Homes Pty Ltd v Donnelly [2005] NSWCA 211 …. 6.14, 6.35 Rech v FM Hire Pty Ltd (1998) 83 IR 293; [1998] NSWIRComm 463 …. 7.42 Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 …. 3.52 Reese Bros Plastics Ltd v Hamon-Sobelco Aust Pty Ltd (1988) 5 BPR 11,106 …. 3.44

Reid v Howard (1995) 184 CLR 1; [1995] HCA 40 …. 13.81 Reeves v New South Wales [2010] NSWSC 611 …. 11.39 Reference re Broome v Prince Edward Island 2010 SCC 11 …. 3.124 Reitano v Commissioner of Police [2004] NSWCA 99 …. 11.37 Residual Assco Group Ltd v Spalvins [2000] HCA 33 …. 1.75 Reynolds v Plaspak Pty Ltd (SC(NSW), CA, Mason P, Priestley JA, Grove AJA, 15 October 1997, unreported) …. 10.3 Rice v Sec of State for Trade and Industry [2007] EWCA Civ 289 …. 4.93 Rich v Queensland [2001] QCA 295 …. 3.121, 3.126 Richards v Hill & Hill [2010] NSWSC 949 …. 5.16 Richardson v Pitt-Stanley [1995] ICR 303 …. 11.116 Ridge v Baldwin [1964] AC 40 …. 5.11 Rhind v Westside Car Carrying Pty Ltd (SC(NSW), Hidden J, 27 March 1997, unreported) …. 3.16 Roads and Traffic Authority v Royal [2008] HCA 19 …. 5.62 Roads and Traffic Authority of New South Wales v Palmer [2003] NSWCA 58 …. 4.80 Robb v Salamis (M & I) Ltd [2006] UKHL 56 …. 6.35 Roberts v White [1999] NSWCA 12 …. 1.75 Robson v Sykes [1938] 2 All ER 612 …. 3.101 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 …. 4.21, 4.26 Roe v Sheffield City Council [2004] QB 653 …. 6.22 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 …. 5.36 Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177 …. 3.80 Rookes v Barnard [1964] AC 1129 …. 5.67 Rosenberg v Percival [2001] HCA 18 …. 5.53 Ross v WGE Pty Ltd (1998) 44 NSWLR 510 …. 10.3

Rowell v Alexander Mackie College of Advanced Education (1988) Aust Torts Rep ¶80-183 …. 3.105 Rowland v Wright [1909] 1 KB 963 …. 11.50 Roy Morgan Research Pty Ltd v Commissioner of Taxation [2009] AATA 702 …. 3.40 Ryan v Ann St Holdings Pty Ltd [2006] QCA 217 …. 3.128 S S Kidman & Co v Lowndes CM and Director of Public Prosecutions (DPP) [2016] NTSC 3 …. 7.39 Safe Work New South Wales v Austral Hydroponics Pty Ltd; Safe Work New South Wales v Eang Lam [2015] NSWDC 295 …. 7.58 — v Waycon Bulk Pty Ltd [2015] NSWDC 254 …. 7.57, 9.34, 9.39, 9.51 Salido v Nominal Defendant (1993) 32 NSWLR 524 …. 5.92 Salomon v A Salomon & Co Ltd [1897] AC 22 …. 4.85 Samad v District Court of New South Wales (2002) 209 CLR 140; [2002] HCA 24 …. 2.68 San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 …. 4.6 Sarkis v Summitt Broadway Pty Ltd t/as Sydney City Mitsubishi [2006] NSWCA 358 …. 5.47 Savage v Dangan Pty Ltd [2012] QSC 375 …. 6.9 Scally v Southern Health and Social Services Board [1992] 1 AC 294 …. 3.107 Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365 …. 11.56, 11.70, 11.78, 11.79, 11.83, 11.84 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 …. 4.8, 5.41 Schiliro v Peppercorn Child Care Centres Pty Ltd [2000] QCA 18 …. 6.9, 6.11

School Board of Nassau County v Arline 480 US 273 (1987) …. 12.28 Schulz v Schmauser [2000] QCA 17 …. 6.9 Schultz v Tamworth City Council (1995) 58 IR 221 …. 7.54, 9.49 Scott v Davis (2000) 74 ALJR 1410 …. 3.19 — v London and St Katherine’s Docks Co (1865) 3 H & C 596 …. 5.40 — v S & E Visser Pty Ltd [2000] NSWSC 265 …. 10.10 Sea Coatings (Australia) Pty Ltd v Pascoe [2008] NSWCA 54 …. 5.92 Seage v New South Wales [2008] NSWCA 328 …. 5.8 Secretary, Department of Foreign Affairs and Trade v Styles (1989) 25 FCR 251 …. 12.57 Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29 …. 5.62, 5.64 — v McNeill [2006] NSWCA 158 …. 13.39 Shafron v Australian Securities and Investments Commission [2012] HCA 18 …. 8.31 Shahid v Australasian College of Dermatologists [2007] FCA 693 …. 3.55 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 …. 9.13, 9.17 Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 …. 11.12, 11.13 — v Thomas [2010] NSWCA 169 …. 5.99 Shell UK Ltd v Total UK Ltd [2010] EWCA Civ 180 …. 3.33 Sheridan v Borgmeyer [2006] NSWCA 201 …. 5.16 Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580 …. 6.36 Shinkwin v Quin-Con Ltd [2000] IESC 27; [2001] 1 IR 514 …. 4.85 Shire of Brookton v Water Corp (2003) WASCA 240 …. 6.27

Shire of Gingin v Coombe [2009] WASCA 92 …. 5.39 Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 …. 12.27 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 …. 5.6 Shorey v PT Ltd [2003] HCA 27 …. 4.32 Shroder v Matheny Management Services Pty Ltd [2001] NSWCC 114 …. 11.90 Siagian v Sanel Pty Ltd (1994) 122 ALR 333 …. 3.147 Sibraa v Brown [2012] NSWCA 328 …. 5.99 Sienkiewicz v Greif (UK) Ltd [2011] 2 All ER 857; [2011] 2 WLR 523 …. 5.61 Sijuk v Ilvariy Pty Ltd [2010] NSWSC 354 …. 6.15 Sim v Powell (1997) 22 Fam LR 243 …. 13.46 Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342 …. 11.64, 11.85 Simmons v British Steel Plc [2004] SLT 595; [2004] UKHL 20 …. 4.32 Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 …. 8.17 Sinanian v EKS Carpentry Pty Ltd (1998) 1 Aust Workers Comp Rev 125 …. 11.118 Singh v Rowntree MacKintosh Ltd [1979] ICR 554 …. 12.60 — v Taj (Sydney) Pty Ltd [2006] NSWCA 330 …. 3.62 Sirikci v Hewlett Packard Australia Pty Ltd [2015] NSWWCCPD 45 …. 11.19 Skeate v Beale (1841) 113 ER 688 …. 3.67 Skulander v Willoughby City Council [2007] NSWCA 116 …. 5.39 Slazengers (Aust) Pty Ltd v Burnett [1951] AC 13 …. 11.22 Slivak v Lurgi (Aust) Pty Ltd (2001) 75 ALJR 481; 103 IR 52; [2001] HCA 6 …. 4.86, 5.12, 6.6, 6.10, 6.34, 9.13 Smiggins (Koscuisko) Ltd v Hume (SC(NSW) CA, 19 May 1983,

unreported) …. 11.81 Smith v ANL Ltd [2000] HCA 58 …. 4.9 — v Australian Woollen Mills Ltd (1933) 50 CLR 504 …. 11.42 — v Baker and Sons [1891] AC 325 …. 5.84 — v Broken Hill Pty Co Ltd (1957) 97 CLR 337 …. 5.23, 5.37 — v Cheeky Monkeys Restaurant [2009] NSWDC 257 …. 3.128 — v Commissioner of Police (No 2) (2000) 20 NSWCCR 27; [2000] NSWCC 35 …. 11.85 — v Leech Brain & Co Ltd [1962] 2 QB 405 …. 5.56 — v Ministry of Defence [2013] UKSC 41 …. 5.84 — v Northamptonshire County Council [2009] UKHL 27 …. 6.35 — v Olga’s Fine Foods Pty Ltd [2014] SAIRC 39 …. 10.9 — v R [2001] HCA 50 …. 13.34 — v St John Ambulance Australia — South Australia Inc (1991) EOC ¶92-383 …. 12.25 Sneddon v New South Wales [2012] NSWCA 351 …. 4.16 — v Speaker of the Legislative Assembly [2011] NSWSC 508 …. 4.16 South Australia v Tanner (1989) 166 CLR 161; 83 ALR 631 …. 2.31 — v Totani [2010] HCA 39 …. 1.63 South Sydney Junior Rugby League Club Ltd v WorkCover Authority of New South Wales (Inspector Bestre) [2005] NSWIRComm 116 …. 7.56, 7.58 South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205 …. 5.27 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 …. 6.5, 6.20, 6.37, 10.2, 10.3 Spencer-Franks v Kellogg Brown and Root Ltd [2008] UKHL 46 …. 6.35 Sprod bnf Sprod v Public Relations Oriented Security Pty Ltd

[2007] NSWCA 319 …. 3.128 St George Club Ltd v Hines (1961) 35 ALJR 106 …. 5.59 St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 39 …. 9.11, 9.14, 9.18, 9.19 St John’s College School, Cambridge v Secretary of State for Social Security [2001] ELR 103 …. 3.12 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 …. 1.59 Standard Chartered Bank of Australia Ltd v Antico (No 2) (1995) 38 NSWLR 290; 13 ACLC 1381 …. 8.35 Stanley v Advantage Personnel Pty Ltd [2003] NSWSC 911 …. 6.14 Stark v Post Office [2000] ICR 1013 …. 6.32 Starks v RSM Security Pty Ltd [2004] NSWCA 351 …. 3.127 State of New South Wales v McMaster [2015] NSWCA 228 …. 4.41, 5.97 State of South Australia v Ellis [2008] WASCA 200 …. 6.10 State Rail Authority of New South Wales v Barnes [2001] NSWCA 133 …. 6.14, 10.3 — v Chu [2008] NSWCA 14 …. 5.49 — v Watkins [2001] NSWCA 405 …. 4.19 — v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218; [2000] NSWIRComm 261 …. 9.47 State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 …. 11.19 Stenner v Taff-Ely Borough Council (United Kingdom Court of Appeal, Civil Division, 15 May 1987, unreported) …. 3.118 Stephens v West Australian Newspapers Ltd (1994) 68 ALJR 765 …. 2.22 Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 …. 5.56 Stergiou v NA Noulikas Holdings Pty Ltd [1994] ACTSC 113 …. 6.27 Sterling Engineering Co Ltd v Patchett [1955] AC 534 …. 3.107

Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 …. 4.93 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513; [1986] HCA 1 …. 1.37, 1.38, 3.9, 3.12, 3.13, 3.15, 3.19, 3.20, 3.25, 3.26, 3.27, 3.39, 3.140, 3.149, 4.17, 4.19, 4.21, 4.23, 4.25, 4.89, 11.8 Stevenson v A Lukin Nominees Pty Ltd [1996] SAIRC 25 …. 13.38 — v ATCO-APM Drilling Pty Ltd (1992) 45 IR 421 …. 8.12 — v Hardy (1994) 63 SASR 86 …. 2.17 Stevenson Jordan & Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101 …. 3.12 Stewart v NSW Police Service (1998) 17 NSWCCR 202 …. 11.87 Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165 …. 3.125, 11.53 Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 …. 4.8, 4.53 Stovin v Wise [1996] AC 923 …. 4.84 Street v Queensland Bar Association (1989) 168 CLR 461 …. 2.23 Strong v Woolworths Ltd [2012] HCA 5 …. 5.41, 5.60 Stuart v Kirkland-Veenstra [2009] HCA 15 …. 6.3, 6.10, 6.19 Sturt v Farran, Bishop of Newcastle [2012] NSWSC 400 …. 3.54 Subramanian v Public Prosecutor [1956] 1 WLR 965 …. 13.35 Sullivan v Moody (2001) 207 CLR 562; 75 ALJR 1570; [2001] HCA 59 …. 4.59, 4.89, 4.90, 4.91, 4.96, 4.99 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 …. 5.79 Supair Pty Ltd v Sweeney [2000] NSWCA 319 …. 11.94 Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202 …. 5.23 Surmon v Herald and Weekly Times (Ruling No 2) [2011] VSC 607 …. 6.10 Sutherland Shire Council v Heyman (1985) 157 CLR 424 …. 4.77,

4.79, 5.26 Swain v Waverley Municipal Council [2005] HCA 4 …. 5.31, 5.37, 5.39 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 80 ALJR 900; [2006] HCA 19 …. 3.12, 3.27, 3.112, 3.123, 3.133, 3.134 Swick Nominees Pty Ltd v Leroi International Inc [No 2] [2015] WASCA 35 …. 5.41 Swift Placements Pty Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 9 …. 7.41 Sydney South West Area Health Service v MD [2009] NSWCA 343 …. 13.15 Sydney Water Corp v Abramovic [2007] NSWCA 248 …. 4.26, 4.94, 4.98, 4.100 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 …. 13.50 Szajna v Australian Postal Corporation [2014] FCA 1136 …. 11.29, 11.30 T Tabet v Gett [2010] HCA 12 …. 1.70 Tabulo v Bowen Shire Council [2004] QSC 38 …. 6.9 Tajjour v New South Wales [2014] HCA 35 …. 2.22 Takacs v The Uniting Church [2007] NSWSC 175 …. 6.14, 6.30 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 …. 4.31, 4.34, 4.35, 4.39, 4.40, 4.41, 4.43, 4.48, 4.51, 4.54, 4.59, 4.63, 4.66, 5.9 Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217 …. 12.9, 12.48, 12.62 Tattsbet Ltd v Morrow [2015] FCAFC 62 …. 3.27 Taylor v Caldwell (1863) 122 ER 309 …. 3.145 — v Haileybury [2013] VSC 58 …. 4.61

— v Johnson (1983) 151 CLR 422 …. 3.66 — v Rover Co Ltd [1966] 2 All ER 781 …. 4.71 — v The Owners — Strata Plan No 11564 [2014] HCA 9 …. 2.44, 8.5 TC v New South Wales [1999] NSWSC 31 …. 4.90 Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254 …. 5.92 Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197 …. 3.48, 3.52 Telfer v Berkeley Challenge Pty Ltd [2000] NSWCA 24 …. 5.12, 5.26 Telstra Corp Ltd v Bowden [2012] FCA 576 …. 11.42 — v Smith (1998) Aust Torts Rep ¶81-487 …. 4.32 — v Worthing (1997) 42 NSWLR 655 …. 2.18 — v — (1999)197 CLR 61; [1999] HCA 12 …. 2.18 Tenix Defence Pty Ltd v Maccarron [2003] WASCA 165 …. 9.15 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 …. 8.31, 9.29, 13.7, 13.75, 13.76 Thatcher v Commissioner of Police [2002] NSWCC 26 …. 11.36, 11.90 The Siboen and The Sibotre [1976] 1 Lloyd’s Rep 293 …. 3.67 Theophanous v Herald & Weekly Times Ltd (1994) 68 ALJR 713 …. 2.22 Thomas v Sydney Training & Employment Ltd [2002] NSWSC 970 …. 4.10, 4.20 Thompson v Cooee Point Abattoirs Pty Ltd [2002] TASSC 41 …. 3.28 — v Mastertouch TV Service Pty Ltd (No 3) (1978–9) 38 FLR 397 …. 2.61 — v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 …. 4.22, 4.70, 5.20, 5.39 Thornton v Sweeney [2011] NSWCA 244 …. 5.98

— v Wollondilly Mobile Engineering [2012] NSWSC 621 …. 4.20 Threlfall v Hull City Council [2010] EWCA Civ 1147 …. 6.35 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 …. 11.92 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 …. 5.39 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 …. 4.10, 4.17, 4.20, 4.70 — v Horne (1995) 38 NSWLR 630 …. 11.110 TNT Management Pty Ltd v Brown (1996) 23 MVR 240 …. 4.18 Todorovic v Moussa (2005) 147 IR 263; [2005] NSWCA 100 …. 6.14 — v Waller (1981) 150 CLR 402 …. 5.71 Tolhurst v Cleary Bros (Bombo) Pty Ltd …. 4.26 Toll Transport Pty Ltd v Haskins [2008] NSWCA 244 …. 4.23 Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28 …. 3.7 Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35 …. 3.149 Tooth & Co Ltd t/as Mona Vale Hotel v Injac (1994) 10 NSWCCR 437 …. 11.72 Totalizator Agency Board v TAB Agents’ Association of New South Wales (1995) 36 NSWLR 594 …. 2.57, 2.63 Transco plc v Her Majesty’s Advocate [2005] BCC 296 …. 13.77 Transfield Construction v Peers [2008] NSWCA 215 …. 6.45 Transfield Pty Ltd v Fallavolita (1984) 154 CLR 531 …. 10.10 Transtate Pty Ltd v Rauk [2002] NSWCA 222 …. 3.29, 3.30 Trend Management Pty Ltd v Borg (1996) 72 IR 16 …. 5.69, 5.70 Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle v Barrett [2010] NSWWCCPD 62 …. 11.64 Turberville v Stampe (1698) 1 Ld Raym 264; 91 ER 1072 …. 3.112

Turner v South Australia (1982) 42 ALR 669 …. 9.17 Tyler v Sydney Electricity (1993) 47 IR 1 …. 7.54 U Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 …. 2.11 Unions New South Wales v New South Wales [2013] HCA 58 …. 2.22 United Autoworkers v Johnson Controls 499 US 187 (1991) …. 12.66, 12.68 United Construction Pty Ltd v Birighitti [2003] WASCA 24 …. 3.18, 3.36, 3.85 Uniting Church v Takacs [2008] NSWCA 141 …. 6.30 Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360 …. 8.42 University of Tasmania v Cain (1994) Tas R 156 …. 11.87 University of Wollongong v Metwally (1984) 158 CLR 447 …. 12.6 Urane v Whipper [2001] NSWSC 796 …. 3.71, 3.76 Urie v Cadbury Schweppes Pty Ltd (1986) EOC ¶92-180 …. 12.25 V Vabu Pty Ltd v Commissioner of Taxation (1996) 96 ATC 4898; 33 ATR 537 …. 3.15, 3.16, 3.17, 3.18, 3.20 Vairy v Wyong Shire Council [2005] HCA 62 …. 5.37, 5.38, 5.39 Valmas v Nyman (SC(NSW), James J, 12 November 1996, unreported) …. 10.10 Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214 …. 11.102 Vance v State Rail Authority [2004] FMCA 240 …. 12.78 Varas v Fairfield City Council [2009] FCA 689 …. 12.54 Various Claimants, Catholic Child Welfare Society v The Institute

of the Brothers of the Christian Schools [2010] EWCA Civ 1106 …. 3.5 Vaughan v Ministry of Defence [2015] EWHC 1404 …. 4.9 Veljanovska v Verduci [2014] VSCA 15 …. 6.3 Verryt v Schoupp [2015] NSWCA 128 …. 13.48 Vetter v Lake Macquarie City Council [2001] HCA 12 …. 11.67 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151; [2005] 4 All ER 1181 …. 3.5 Vibixa Ltd v Komori UK Ltd; Polestar Jowetts Ltd v Komori UK Ltd [2006] EWCA Civ 536 …. 6.27 Victoria v Commonwealth (1937) 58 CLR 618 …. 2.18 Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 …. 4.31, 4.33 Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 …. 2.29 Victorian Workcover Authority v Australian Steel Company (Operations) Pty Ltd [2015] VSC 58 …. 4.27 — v Game [2007] VSCA 86 …. 3.38 — v Stoddart (Vic) Pty Ltd [2015] VSC 149 …. 10.11 Vinidex Pty Ltd v Campbell [2012] NSWWCCPD 6 …. 11.84 Viskauskus v Niland (1983) 153 CLR 280 …. 12.6 Visy Paper Pty Ltd v Glass Granulates Pty Ltd [2014] NSWSC 1387 …. 2.55 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 …. 5.12 W Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140 …. 4.27, 5.100 Wainohu v New South Wales [2011] HCA 24 …. 1.63 Wakim, Re; Ex parte McNally (1999) 163 ALR 270; [1999] HCA 27 …. 1.59, 1.60

Walker v Northumberland County Council [1995] 1 All ER 737 …. 4.42, 5.54 — v Victoria [2012] FCAFC 38 …. 12.14 Walsh v Tattersall (1996) 139 ALR 27 …. 13.67 Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos [2012] NSWCA 107 …. 3.45 Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664 …. 12.53 Warren v Henleys Ltd [1948] 2 All ER 935 …. 3.119 Waters v Commissioner of Police for the Metropolis [2000] UKHL 50 …. 3.99, 4.42, 12.75 — v Public Transport Corp (1991) 173 CLR 349; 103 ALR 513 …. 12.11, 12.32, 12.38, 12.45, 12.61 — v Trojan Tyres (NSW) Pty Ltd [2003] NSWCA 246 …. 6.14 Watson v George (1953) 89 CLR 409 …. 4.70 — v Qantas Airways Ltd [2009] NSWCA 322 …. 11.56 Watts v Australian Postal Corporation [2014] FCA 370 …. 12.14, 12.37 Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195 …. 2.66, 13.43 Waverley Municipal Council v Swain [2003] NSWCA 61 …. 5.31 Weal v Bottom (1966) 40 ALJR 436 …. 13.46 Webb v Chapman (1997) 42 NSWLR 721 …. 11.10 Weber v Deakin University (Human Rights) [2014] VCAT 1440 …. 12.14 Websdale v Collins [2009] NSWDC 30 …. 6.15 Wesfarmers Federation Insurance Ltd v Wells t/as Wells Plumbing [2008] NSWCA 186 …. 3.26 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 …. 3.77 Western Australia v Commonwealth (1995) 128 ALR 1 …. 1.44, 1.51 Western Bank Ltd v Schindler [1977] Ch 1 …. 2.44

Westminster City Council v Select Managements Ltd [1985] 1 All ER 897 …. 8.4 Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30 …. 11.47, 11.52 Westrupp v BIS Industries Ltd [2015] FCAFC 173 …. 11.57 Wheeler v South Australia [2012] SASCFC 111 …. 11.63 White v Canberra Furniture Manufacturing Pty Ltd [1999] ACTSC 53 …. 4.74, 10.10 — v Chief Constable of South Yorkshire Police [1999] 2 AC 455; [1999] 1 All ER 1 …. 4.44, 4.51 — v Malco Engineering Pty Ltd [1999] NSWSC 1055 …. 3.31, 4.10, 4.20 Whitehouse v Jordan [1981] 1 WLR 246 …. 13.54 Whittaker v Delmina Pty Ltd (1998) 87 IR 268 …. 7.49 Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 …. 11.51 Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22 …. 4.46, 4.62, 4.64, 4.66 Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129 …. 1.51, 2.60 Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135 …. 4.19 Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 …. 5.50 Wilkinson v BP Australia Pty Ltd [2008] QSC 171 …. 6.11 — v Downton (1897) 66 LJQB 493; [1897] 2 QB 57 …. 4.58 Williams v Commonwealth of Australia [2002] FMCA 89 …. 12.9 — v — (2012) 248 CLR 156; [2012] HCA 23 …. 2.20 Williams v Dunn’s Assignee (1908) 6 CLR 425 …. 2.63 Williams v Grain Handling Authority of NSW (SC(NSW), Allen J, 21 October 1986, unreported) …. 10.3

Williamson v Suncorp Metway Insurance Ltd [2008] QSC 244 …. 3.51 Willis v State Rail Authority (NSW) (No 2) (1992) EOC ¶92-455 …. 12.9, 12.39 Wilsher v Essex Area Health Authority [1988] AC 1074 …. 5.59 Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 …. 3.86, 4.9, 4.12 Wilton & Cumberland v Coal & Allied Operations Pty Ltd [2007] FCA 725 …. 3.25 Wodrow v Commonwealth of Australia (1993) 45 FCR 52 …. 5.21, 5.54 Wolper v Poole (1972) 2 SASR 419 …. 13.44 Wooby v Australian Postal Corporation [2013] NSWCA 183 …. 4.23 Wood v Ansett Transport Industries Operation Pty Ltd (SC(NSW) Common Law Division, Howie AJ, 15 December 1997, unreported) …. 10.3 Woodhouse v Walsall Metropolitan Borough Council [1994] Env LR 30 …. 8.24 Woodland v Essex County Council [2013] UKSC 66, [2014] 1 AC 537 …. 3.139 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9 …. 5.23, 5.31, 5.37, 5.38 Woollahra Corp v Sved (1996) 40 NSWLR 101; Aust Torts Rep ¶81398 …. 4.77 Woolmington v Director of Public Prosecutions [1935] AC 462 …. 13.6 WorkCover v Visy Paper Pty Ltd [2015] NSWDC 284 …. 9.52 WorkCover Authority of New South Wales v 4 Lift N Pty Ltd [2015] NSWDC 150 …. 9.5, 9.34, 9.39, 9.52 — v Acimall Aust Pty Ltd [1998] NSWIRComm 41 …. 8.12

— v Air Liquide Aust Ltd [1998] NSWIRComm 98 …. 7.27 — v Anywhere Tower Cranes Pty Ltd [2007] NSWIRComm 44 …. 8.49 — v Australian Winch & Haulage Co Pty Ltd [2000] NSWIRComm 214 …. 13.86, 13.88, 13.89 — v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565 …. 3.25 — v Burn [2005] NSWIRComm 206 …. 8.49 — v C P Pre-cast Pty Ltd [2005] NSWCIMC 139 …. 10.5 — v Chubb Security Australia Pty Ltd [2005] NSWIRComm 263 …. 7.49 — v Construere Projects Pty Ltd [2014] NSWDC 310 …. 7.58, 9.39, 9.51 — v Customised Gas Australia Group Pty Ltd and Flynn [2014] NSWDC 361 …. 8.50, 9.39 — v Drayton & Sons Pty Ltd [2014] NSWDC 180 …. 9.48 — v Eastern Basin Pty Ltd [2015] NSWDC 92 …. 7.39, 7.51, 9.11 — v El-Hayek [2014] NSWDC 362 …. 7.58, 9.39, 9.51 — v Forgacs Engineering Pty Ltd (Ind Rel Comm of NSW in Ct Sess, Fisher P, 18 February 1998, unreported) …. 7.41 — v Grigor (No 2) [1997] NSWIRComm 62 …. 13.87 — v Hitchcock [2003] NSWIRComm 148 …. 13.38 — v JML Tree Services Pty Ltd [2015] NSWDC 253 …. 7.31, 9.39, 9.43, 9.47, 9.51 — v JMW Developments Pty Ltd [2015] NSWDC 259 …. 9.39, 9.40 — v McMillan Britton & Kell Pty Ltd [1998] NSWIRComm 93 …. 8.7 — v Moweno [1996] NSWIRC 45 …. 8.7 — v Plumbwizard Pty Ltd and Georges [2015] NSWDC 266 …. 7.58, 9.39, 9.51 — v Profab Industries Pty Ltd (2000) 100 IR 64 …. 9.50

— v R (1995) AISHW ¶53-206 …. 7.58 — v Rowson [1994] NSWIRC 76 …. 8.7 — v Roads & Traffic Authority of New South Wales [1994] NSWIRC 109; (1995) AISHW ¶53-206 …. 7.47 — v Sarjame Storage Pty Ltd [2015] NSWDC 151 …. 9.39, 9.51 — v Seccombe (1998) 43 NSWLR 390 …. 13.83, 13.86, 13.89 — v Steel [2005] NSWIRComm 215 …. 8.49 — v Vibro-Pile (Aust) Pty Ltd [1997] NSWIRComm 73 …. 9.3, 9.38 — v Wallis [1994] NSWIRC 163 …. 9.3 — v Walsh [2004] NSWCA 186 …. 11.51, 11.85, 11.98 — v Waugh (1995) 59 IR 89 …. 9.38, 9.51 WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd (t/as Drake Industrial) [2000] NSWIRComm 1134 …. 7.41 WorkCover Authority of New South Wales (Inspector Belly) v Akerman-Apache (Joint Venture) Pty Ltd [2006] NSWIRComm 370 …. 8.48 WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd [2002] NSWIRComm 20 …. 9.13, 9.14 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 …. 9.13 WorkCover Authority of New South Wales (Inspector Campbell) v Howle (1998) 86 IR 297 …. 9.49 — v Hydraulics Hot Line Pty Ltd (1998) 87 IR 39 …. 9.43 WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) [2001] NSWIRComm 33 …. 7.48 WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78 …. 7.51 — v — (No 2) [2002] NSWIRComm 70 …. 7.51

WorkCover Authority of New South Wales (Inspector De LeonStacey) v Sydney Diagnostic Services (NSW) Pty Ltd [2005] NSWCIMC 179 …. 10.16 WorkCover Authority of New South Wales (Inspector Dell) v Fitzpatrick [2003] NSWIRComm 69 …. 9.43 WorkCover Authority of New South Wales (Inspector Dowling) v Barry John Coster [1997] NSWIRComm 154 …. 8.43 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 …. 10.16 WorkCover Authority of New South Wales (Inspector Gilbert) v Energy Australia (formerly Sydney Electricity) (1998) 85 IR 99 …. 2.54, 2.64 WorkCover Authority of New South Wales (Inspector Glassington) v Graffica Pty Ltd [2012] NSWDC 311 …. 8.17 WorkCover Authority of New South Wales (Inspector Hart) v Idofan Pty Ltd t/as Kingsland Transport (1995) 59 IR 295 …. 9.43, 9.46 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) NSWLR 700 …. 9.39 WorkCover Australia of New South Wales (Inspector Keelty) v Crown in Right of State of New South Wales (Police Service of New South Wales) (2000) 102 IR 252 …. 13.83 — v — (No 3) [2002] NSWIRComm 1 …. 7.58 WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corp (Aust) Pty Ltd [2004] NSWIRComm 349 …. 8.43 WorkCover Authority of New South Wales (Inspector Mason) v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350 …. 9.51 WorkCover Authority of New South Wales (Inspector May) v Swift Placements Pty Ltd [1999] NSWIRComm 113; (1999) 88 IR 53 …. 7.41

WorkCover Authority of New South Wales (Inspector Mayell) v Claude Van Den Bruggen t/as Dolphin Antenna Service [2007] NSWIRComm 193 …. 7.51 WorkCover Authority of New South Wales (Inspector MayoRamsay) v Maitland City Council (1998) 83 IR 362 …. 9.13 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50 …. 8.14 WorkCover Authority of New South Wales (Inspector Nicholson) v Waco Kwikform Ltd [2009] NSWIRComm 123 …. 13.62 WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald’s Australia Ltd [2000] NSWIRComm 277 …. 8.8 WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Pty Ltd [2000] NSWIRComm 165 …. 13.37 WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd (No 1) [2001] NSWIRComm 223 …. 7.41 WorkCover Authority of New South Wales (Inspector Sharon Warner) v Premier Steel Technologies Pty Ltd [2006] NSWCIMC 71 …. 10.5 WorkCover Authority of New South Wales (Inspector Short) v Crown in Right of State of New South Wales (NSW Police) [2007] NSWIRComm 138 …. 9.52 Workcover Authority of New South Wales (Inspector Simpson) v CNH Australia Pty Ltd [2006] NSWIRComm 220 …. 13.38, 13.46, 13.52 — v Paul McLaughlin Group [2006] NSWCIMC 80 …. 9.6 WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469 …. 9.3 WorkCover Authority of New South Wales (Inspector Tyler) v P & D Coachworks Pty Ltd [2000] NSWIRComm 80 …. 8.14

— v Workforce Link Pty Ltd [2001] NSWIRComm 24 …. 7.41 WorkCover Authority of New South Wales (Inspector Viesis) v Thiess Contractors Pty Ltd (1996) 85 IR 12 …. 9.51 WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Ltd and Sassall Glass & Joinery Pty Ltd [2008] NSWIRComm 153 …. 13.70 WorkCover Corporation (San Remo Macaroni Co Pty Ltd) v Da Ping [1994] SASC 4466 …. 3.62 WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108 …. 9.29 Workers Compensation Nominal Insurer v Brasnovic [2013] NSWDC 131 …. 11.117 Worksafe Victoria v Orbit Drilling Pty Ltd (County Court Vic, Hampel J, 28 April 2010, unreported) …. 9.32 Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260 …. 4.15 Worrell v Longworth (2000) 20 NSWCCR 400; [2000] NSWCC 42 …. 11.55, 11.91 Wright v Dunlop Rubber Co Ltd (1972) 13 KIR 255 …. 4.71 — v New South Wales [2006] NSWCA 152 …. 5.7 — v Optus Administration Pty Ltd [2015] NSWSC 160 …. 4.6, 4.15, 4.66, 4.70, 5.99 — v TNT Management Pty Ltd (1989) 85 ALR 442 …. 3.86 Wylie v South Metropolitan College of TAFE [2003] WASCA 34 …. 4.54 — v The ANI Corporation Ltd [2000] QCA 314 …. 3.87 Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149; [2009] Aust Torts Reports ¶82-016 …. 6.15, 10.8 Wyong Shire Council v Shirt (1980) 146 CLR 40 …. 4.48, 4.99, 5.4, 5.5, 5.9, 5.10, 5.17, 12.28 — v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA

247 …. 5.36, 5.84 X X v Commonwealth of Australia (1999) 167 ALR 529 …. 12.9, 12.29 XL Petroleum (Aust) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 …. 5.67 Y Y v Human Rights & Equal Opportunity Commission [2004] FCA 184 …. 12.52 Yi v The Service Arena Pty Ltd [2001] NSWCA 400 …. 3.48 Yuille v B & B Fisheries (Leigh) Ltd & Bates (The Radiant) [1958] 2 Lloyd’s Rep 596 …. 4.85 Z Zahner v Andreas Pty Ltd & Boral Building Services Pty Ltd [2001] NSWCA 352 …. 6.14, 6.30 Zarb v Visyboard Pty Ltd (SC(NSW), James J, 13 July 1995, unreported) …. 10.3 Zaronias v Papaiani [2002] NSWCA 207 …. 3.48 Zauner Constructions Pty Ltd v Harvey [2004] NSWCA 8 …. 6.14 Ziberoski v R & J Hill Investments Pty Ltd [1995] IRCA 203 …. 3.51 Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; 71 ALJR 32 …. 1.72, 2.63, 11.21, 11.23, 11.24, 11.27, 11.28, 11.29, 11.61, 11.75 Zmak v TCB Trans Pty Ltd [2013] VSC 310 …. 13.62 Zraika v Commissioner of Police, NSW Police [2004] NSWADT 67 …. 12.29, 12.30 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 …. 3.11, 3.25 Zurich Insurance PLC UK Branch v International Energy Group Ltd [2015] UKSC 33 …. 5.61

TABLE OF STATUTES References are to paragraph numbers Commonwealth Acts Interpretation Act 1901 …. 2.49, 2.69, 2.77, 2.78 s 2C …. 2.73 s 3A …. 2.70 s 13 …. 2.58 s 15AA …. 2.49 s 15AA(1) …. 2.49 s 15AB …. 2.77 s 23 …. 2.71 Acts Interpretation Amendment Act 2011 …. 2.49 Age Discrimination Act 2004 …. 12.3 s 12 …. 12.6 s 18 …. 12.3 Australia Act 1986 s 1 …. 1.49 Australian Consumer Law see Competition and Consumer Act 2010 Australian Human Rights Commission Act 1986 …. 12.20 s 46PS …. 12.20 Bankruptcy Act 1966 s 126 …. 3.59 Civil Aviation Act 1988 …. 2.18 Competition and Consumer Act 2010 s 87ZE …. 5.70

s 236 …. 6.6 Sch 2 …. 3.68, 4.75, 4.77, 6.6 Pts 3–5 …. 4.76, 4.77 s 18 …. 4.75 s 50 …. 3.68 s 55 …. 3.88 s 87E …. 5.70 s 138 …. 4.76, 4.77 s 146 …. 4.77 Constitution …. 1.15, 1.19, 1.22, 1.23, 1.24, 1.25, 1.26, 1.30, 1.35, 1.55, 1.56, 1.62, 1.63, 1.75, 1.76, 2.12, 2.19, 2.21, 2.22 Ch I …. 1.25 Ch II …. 1.25, 1.76 Ch III …. 1.25, 1.59, 1.63 Ch IV …. 1.25 Ch V …. 1.25, 1.76 Ch VI …. 1.25 Ch VII …. 1.25 Ch VIII …. 1.25 ss 1–128 …. 1.24 s 51 …. 1.26, 1.27, 1.76, 2.20, 2.21, 2.29 ss 51–52 …. 1.76 s 51(ii) …. 2.21 s 51(xx) …. 2.20 s 51(xxvi) …. 1.51 s 51(xxxvii) …. 1.27, 1.60 s 52 …. 1.26, 1.76, 2.12, 2.15 s 53 …. 2.6 s 57 …. 2.7

s 64 …. 1.25 s 73 …. 1.56 s 73(ii) …. 1.55 s 75 …. 1.56 s 75(i) …. 1.56 s 75(ii) …. 1.56 s 75(iii) …. 1.56, 1.59 s 75(iv) …. 1.56 s 76 …. 1.56 s 76(i) …. 1.56 s 76(ii) …. 1.56 s 76(iii) …. 1.56 s 76(iv) …. 1.56 s 77 …. 1.56 s 90 …. 1.26, 2.12 s 92 …. 2.23 s 99 …. 2.21 s 100 …. 2.21 s 107 …. 1.26, 1.76, 2.12 s 109 …. 1.26, 1.76, 2.12, 2.17, 2.18, 12.6 s 111 …. 2.12 s 114 …. 2.12, 2.21 s 115 …. 2.12 s 116 …. 1.35, 2.21 s 117 …. 2.23 s 128 …. 1.25 Corporations Act 2001 …. 1.60, 8.23, 8.25, 8.31, 8.32, 8.34, 8.37 s 9 …. 8.23, 8.31, 8.32, 8.33, 8.34 s 9(b)(i) …. 8.31

s 124 …. 3.61 s 201B(1) …. 8.35 Criminal Code Act 1995 …. 2.22, 13.70, 13.77 Pt 2.5 s 12.3 …. 13.77 s 12.3(2)(c) …. 13.77 Sch 1 s 5.4(2) …. 9.29 Disability Discrimination Act 1992 …. 12.3, 12.9, 12.14, 12.36, 12.37, 12.51 s 5(2) …. 12.14 s 5(3) …. 12.14 s 10 …. 12.10 s 11 …. 12.14 s 13 …. 12.6 s 15 …. 12.3, 12.29, 12.37, 12.43 s 15(2)(a) …. 12.37 s 15(2)(b) …. 12.37 s 15(2)(d) …. 12.37 s 15(4) …. 12.29, 12.43 s 15(4)(a) …. 12.29 s 15(4)(b) …. 12.29 s 21A …. 12.29, 12.36 s 21A(4) …. 12.37 s 21A(4)(a) …. 12.36 s 22(4) …. 12.51 Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 …. 12.14 Electronic Transactions Act 1999 s 14A …. 3.46 Evidence Act 1995 …. 13.31, 13.32, 13.36, 13.38, 13.39, 13.80

s 17(2) …. 13.80 s 55(1) …. 13.32 s 56 …. 13.32 s 59 …. 13.36 s 60 …. 13.38 s 65 …. 13.37 s 66 …. 13.38 s 67 …. 13.37 s 76 …. 13.34, 13.39, 13.40 s 79 …. 13.40, 13.46, 13.48 s 79(1) …. 13.48, 13.51 s 80 …. 13.52, 13.53 s 80(a) …. 13.53 s 81 …. 13.38 s 84 …. 13.38 s 85 …. 13.38 s 90 …. 13.83 s 91 …. 13.88, 13.90 s 91(1) …. 13.88 s 128 …. 13.82 s 135(a) …. 13.33 s 138(1) …. 13.63 s 178 …. 13.88, 13.90 s 178(3) …. 13.88 s 187 …. 13.86 s 190 …. 13.80 Dictionary Pt 2 cl 4 …. 13.37 Fair Work Act 2009 …. 2.20, 3.3, 3.23, 3.90, 3.149 Pt 2 …. 3.90

Pt 3-1 Div 6 …. 3.23 Pt 4 …. 3.90 s 11 …. 3.3 s 12 …. 3.3, 12.55 s 14 …. 2.20 s 26 …. 3.77 s 323 …. 3.92 s 340 …. 12.55 s 341 …. 12.55 s 357(1) …. 3.23 s 360 …. 12.10 s 387(a) …. 3.149 s 543 …. 3.90 s 545(3) …. 3.90 Fair Work Regulations 2009 reg 1.14(c) …. 3.77 Family Law Act 1975 …. 1.58 s 46(1) …. 1.58 Federal Court of Australia Act 1976 …. 3.94 Human Rights Legislation Amendment Act 1995 …. 12.20 Income Tax Assessment Act 1936 …. 2.41, 2.43, 2.44, 2.45, 2.48 s 170 …. 2.41 s 170(3) …. 2.41, 2.43 s 204 …. 2.41 Independent Contractors Act 2006 Pt 2 …. 3.77 Industrial Relations Act 1988 …. 3.83, 3.100, 12.59 s 170DF(1) …. 12.44

s 170DF(2) …. 12.44 Insurance Contracts Act 1984 …. 3.103, 3.104 s 9 …. 3.104 s 9(1)(e) …. 3.104 s 9(1)(e)(i) …. 3.104 s 66 …. 3.104 Judiciary Act 1903 s 23 …. 2.22 Legislation Act 2003 …. 2.35 Ch 3 Pt 4 …. 2.36 s 8 …. 2.35 s 10 …. 2.35 s 17 …. 2.35 s 19 …. 2.35 s 50 …. 2.36 Marriage Act 1961 …. 2.14 Migration Act 1987 …. 3.62 Military Rehabilitation and Compensation Act 2004 …. 5.84, 11.2 National Occupational Health and Safety Commission Act 1985 s 38 …. 12.67 Native Title Act 1993 …. 1.51, 1.74, 2.52 Occupational Health and Safety Act 1991 …. 2.16, 7.13, 7.17 s 4 …. 2.17 s 4(1) …. 2.16 s 5 …. 2.16 Occupational Health and Safety (Commonwealth Employment) Act 1991 …. 2.15 s 4 …. 2.15 OHS and SRC Legislation Amendment Act 2006 …. 2.16

Racial Discrimination Act 1975 …. 12.3, 12.6, 12.20 s 6A …. 12.6 s 9 …. 12.7 s 15 …. 12.3 Safety, Rehabilitation and Compensation Act 1988 …. 2.18, 3.37, 5.84, 11.2, 11.29 s 4 …. 3.99 s 5A …. 11.29 s 5A(1) …. 11.39 s 5B …. 11.29 s 5C …. 11.29 s 45 …. 5.86 s 52 …. 2.18 s 118 …. 2.18 Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 …. 11.29 Sch 2 Pt 1 …. 11.29 Seafarers Rehabilitation and Compensation Act 1992 …. 11.2 Sex Discrimination Act 1984 …. 2.13, 3.99, 12.3, 12.16, 12.67, 12.74 Pt 2 Div 3 …. 12.74 s 5 …. 12.72 s 5(1) …. 12.57 s 5(2) …. 12.57 s 5(2)(a) …. 12.57 s 5(2)(b) …. 12.57 s 5(2)(c) …. 12.57 s 11(3) …. 12.6 s 14 …. 2.13, 12.3

s 14(1)(b) …. 12.70 s 14(1)(c) …. 12.70 s 14(3) …. 12.70 s 15(24) …. 12.70 s 15(27) …. 12.70 s 28A …. 12.74 s 40(1) …. 12.16 s 44 …. 12.16, 12.68 s 106 …. 12.77 Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 …. 12.3 Social Security Act 1991 …. 11.113 Superannuation Guarantee (Administration) Act 1992 …. 3.17 Sydney 2000 Games (Indicia and Images) Protection Act 1996 …. 2.12 Trade Practices Act 1974 …. 4.77, 11.92 Pt VA …. 4.76, 4.77 s 52 …. 4.75 s 75AD …. 4.76 s 75AI …. 4.77 Veterans’ Entitlements Act 1986 …. 5.84 Work Health and Safety Act 2011 …. 2.16, 7.17, 8.40 s 12B …. 7.17 ss 12C–12E …. 7.17 s 12F(2) …. 13.70 Work Health and Safety (Transitional and Consequential Provisions) Act 2011 Sch 1 …. 2.16 Workplace Relations Act 1996 …. 3.94, 3.149

Pt VIA Div 3 …. 3.149 s 170CH(3) …. 3.94 s 170CP(1)(c) …. 3.149 Workplace Relations Amendment (Work Choices) Act 2005 …. 2.20 Workplace Relations and Other Legislation Amendment Act 1996 …. 1.57 Workplace Relations Regulations 1989 reg 30CA …. 3.149 Australian Capital Territory Crimes Act 1900 …. 13.77 Pt 2A …. 9.27, 13.77 s 49C …. 13.77 Crimes (Industrial Manslaughter) Amendment Act 2003 …. 9.27, 13.77 Evidence Act 2011 …. 13.31 Legislation Act 2001 Ch 5 …. 2.35 s 28 …. 2.70 s 73 …. 2.70 s 74 …. 2.74 s 104 …. 6.6 s 139 …. 2.49 ss 141–143 …. 2.77 s 145 …. 2.71 s 160 …. 2.73 Occupational Health and Safety Act 1989 …. 6.6, 6.15 s 9 …. 6.9 s 223 …. 6.6

Scaffolding and Lifts Regulation 1950 cl 73(1)(c) …. 6.3 Work Health and Safety Act 2011 …. 7.17, 8.43 Work Safety Act 2008 …. 7.13 Workers Compensation Act 1951 …. 11.2 New South Wales Administrative Decisions Tribunal Act 1997 …. 12.19 Anti-Discrimination Act 1977 …. 12.4, 12.5, 12.6, 12.7, 12.19, 12.35, 12.37, 12.38, 12.46, 12.59, 12.78 Pt 2 …. 12.4 Pt 3 …. 12.4 Pt 3A …. 12.4 Pt 4 …. 12.4 Pt 4A …. 12.4 Pt 4B …. 12.4 Pt 4C …. 12.4 Pt 4G …. 12.4 Pt 4E …. 12.4 Pt 9 …. 12.19 s 3(a) …. 12.5 s 4A …. 12.10 s 8 …. 12.4, 12.62 s 20D …. 12.19 s 25 …. 12.4 s 38C …. 12.4 s 38T …. 12.19 s 40 …. 12.4 s 49B …. 12.8, 12.58

s 49B(1) …. 12.32 s 49B(1)(a) …. 12.9, 12.32 s 49B(1)(b) …. 12.11, 12.32, 12.58, 12.61 s 49B(2) …. 12.13 s 49C …. 12.29 s 49D …. 12.4, 12.10, 12.15, 12.32, 12.58 s 49D(1) …. 12.15, 12.32 s 49D(1)(b) …. 12.32 s 49D(2) …. 12.15 s 49D(2)(a) …. 12.32 s 49D(2)(b) …. 12.32 s 49D(2)(c) …. 12.32 s 49D(2)(d) …. 12.32 s 49D(3) …. 12.15 s 49D(4) …. 12.15, 12.27, 12.29, 12.30, 12.32, 12.34, 12.35, 12.49 s 49D(4)(a) …. 12.32 s 49D(4)(b) …. 12.29, 12.32 s 49PA …. 12.17 s 49V …. 12.4 s 49ZH …. 12.4 s 49ZYB …. 12.4 s 49ZTA …. 12.19 s 49ZXC …. 12.19 s 53 …. 12.78 s 53(3) …. 12.78 s 54 …. 12.17, 12.33, 12.38, 12.40, 12.45, 12.46, 12.47, 12.48, 12.49, 12.59, 12.65 s 54(1)(a) …. 12.45

s 54(1)(d) …. 12.47 s 89A …. 12.19 s 89B …. 12.19 s 89C …. 12.19 s 91A …. 12.19 s 95 …. 12.19 s 108 …. 12.19 s 111A …. 12.19 Anti-Discrimination Amendment (Drug Addiction) Act 2002 …. 12.17 Anti-Discrimination Amendment (Offender Compensation) Act 2007 …. 12.19 Associations Incorporation Act 2009 …. 3.61, 8.37, 11.15 s 19 …. 3.61 Building and Construction Industry Security of Payment Act 1999 …. 3.143 Children and Young Persons (Care and Protection) Act 1998 Ch 13 s 221 …. 3.57 Civil Liability Act 2002 …. 1.44, 2.62, 4.29, 4.30, 4.41, 4.46, 4.62, 4.64, 4.65, 4.66, 4.68, 5.8, 5.9, 5.15, 5.34, 5.71, 5.88, 5.94, 5.95, 5.96, 5.97, 5.99, 5.100, 6.46 Pt 1A …. 5.97, 5.98, 6.46 Pt 1A Div 2 …. 5.97, 5.98 Pt 2 …. 5.97, 6.46 Pt 2A …. 5.97 Pt 3 …. 4.62, 4.63, 5.97 Pt 5 …. 5.97 Pts 6–10 …. 5.97 Pt 8 …. 4.3 Pt 8A …. 5.95

Pt 11 …. 5.95, 5.97 Pt 12 …. 5.97 s 3B …. 5.97 s 3B(1)(a) …. 4.41 s 3B(1)(f) …. 4.41, 5.96, 6.46 s 5 …. 6.46 s 5A …. 6.46 s 5B …. 4.63, 5.97, 5.98, 5.99, 5.100 s 5B(1) …. 5.97 s 5B(1)(b) …. 5.99 s 5B(2) …. 5.100 s 5B(2)(d) …. 5.99 s 5C …. 5.98, 5.100 s 5C(c) …. 5.15 s 5D(3)(b) …. 5.97 s 5H(1) …. 5.97 s 5L(1) …. 5.97 s 5O(1) …. 5.97 s 5Q …. 5.97 s 5S …. 5.97 s 11A …. 6.46 s 12 …. 5.97 s 15 …. 5.97 s 16 …. 5.97 s 21 …. 5.66, 5.70, 5.97 s 22 …. 5.97 s 27 …. 4.37, 4.63 s 30 …. 4.41, 4.65, 4.67, 5.97

s 30(2) …. 4.66 s 31 …. 4.64 s 32 …., 4.67, 4.68 s 32(1) …. 4.63, 4.67, 4.68 s 32(2) …. 4.68 s 32(2)(a) …. 4.67 s 32(4) …. 4.68 s 43 …. 6.20 s 45 …. 5.97 Sch 1[4] …. 5.95 Sch 1 s 11 …. 4.41, 5.97 Civil Liability Amendment Act 2003 …. 5.95 Civil Liability Amendment (Food Donations) Act 2005 …. 5.95 Civil Liability Amendment (Offender Damages) Act 2004 …. 5.95 Pt 2A …. 5.95 Civil Liability Amendment (Offender Damages) Act 2005 …. 5.95 Civil Liability Amendment (Offender Damages) Act 2007 …. 5.95 Civil Liability Amendment (Personal Responsibility) Act 2002 …. 5.75, 5.95, 6.45 Pt 4 …. 5.95 Div 7 …. 5.95 s 5N …. 5.95 Sch 3 …. 4.41, 6.45 Civil Procedure Act 2005 …. 13.10 Coal Mines Regulation Act 1982 s 41 …. 8.28 Coal Mines Regulation (Survey and Plan) Regulation 1984 cl 8 …. 8.28 Constitution Act 1902 …. 1.21, 2.11

s 5 …. 2.11 s 7A …. 2.11 Construction Safety Act 1912 …. 6.30, 10.10 Construction Safety Act 1950 …. 10.2 Construction Safety Regulations 1950 …. 6.14, 6.30, 10.10 reg 6(1)(i) …. 6.38 reg 73 …. 6.24, 6.31, 10.10 reg 73(5) …. 6.35 reg 74 …. 6.24, 6.31, 10.10 reg 80(6) …. 6.38 reg 84(5) …. 10.10 Contracts Review Act 1980 …. 3.77 s 7 …. 3.77 s 7(1) …. 3.77 s 9 …. 3.77 Conveyancing Act 1919 s 38(1) …. 3.47 s 54A(1) …. 3.64 Corporations (Commonwealth Powers) Act 2001 …. 1.60 Crimes Act 1900 …. 9.49, 9.51 s 556A …. 9.49, 9.51 Crimes (Sentencing Procedure) Act 1999 …. 9.49 s 3A …. 9.40 s 10 …. 8.29, 8.45, 9.49, 9.50, 9.51 s 10A …. 9.43 s 21A …. 9.40, 9.48, 9.51 s 21A(2)(d) …. 9.40 s 27(2) …. 9.52 s 27(2A) …. 9.52

s 27(3) …. 9.52 s 50(1) …. 9.50 Criminal Appeal Act 1912 s 5ABA …. 1.55 s 5AG …. 1.55 Dangerous Goods Regulation 1978 …. 6.34 Defamation Act 1974 s 8A …. 3.52 District Court Act 1973 s 4 …. 1.53 s 44(1) …. 1.53 s 44(1)(d) …. 1.53 s 44(1)(d1) …. 1.53 s 51(2) …. 1.53 Dust Diseases Tribunal Act 1989 …. 11.18 s 3(1) …. 11.18 Electronic Transactions Act 2000 s 13A …. 3.46 Employees’ Liability Act 1991 …. 3.103, 3.105, 3.113, 5.83 s 3 …. 3.103 s 3(1) …. 3.103 s 3(1)(b) …. 3.103 s 5 …. 3.103 s 5(a) …. 3.103 s 5(b) …. 3.103 Employee’s Liability (Indemnification of Employers) Act 1982 …. 3.103 Environmental Planning & Assessment Act 1979 …. 4.81 Evidence Act 1995 …. 13.31, 13.32, 13.36, 13.38, 13.39, 13.80

s 17(2) …. 13.80 s 55(1) …. 13.32 s 56 …. 13.32 s 59 …. 13.36 s 60 …. 13.38 s 65 …. 13.37 s 66 …. 13.38 s 67 …. 13.37 s 76 …. 13.34, 13.39, 13.40 s 79 …. 13.40, 13.46, 13.48 s 79(1) …. 13.48, 13.51 s 80 …. 13.52, 13.53 s 80(a) …. 13.53 s 81 …. 13.38 s 84 …. 13.38 s 85 …. 13.38 s 90 …. 13.83 s 91 …. 13.88, 13.90 s 91(1) …. 13.88 s 118 …. 13.19, 13.62 s 119 …. 13.19, 13.62 s 128 …. 13.81, 13.82 s 131A …. 13.62, 13.81 s 135(a) …. 13.33 s 138(1) …. 13.63 s 170 …. 13.63 s 178 …. 13.88, 13.90 s 178(3) …. 13.88

s 187 …. 13.86 s 190 …. 13.80 Dictionary Pt 2 cl 4 …. 13.37 Factories and Shops Act 1896 …. 7.10 Factories (Health and Safety Hearing Conservation) Regulation 1979 cl 5 …. 12.39 cl 15 …. 12.39 Factories, Shops and Industries Act 1962 …. 4.80, 6.24, 7.10, 10.2, 10.3, 10.4, 10.10, 12.22, 12.59 Pt 3 …. 10.3 s 4(1) …. 10.3 s 9 …. 10.3 s 27 …. 6.14, 10.2, 10.3, 10.4, 10.5, 10.8 s 27(1) …. 10.4 s 27(2) …. 6.32 s 34 …. 6.14 s 36 …. 2.13, 12.12, 12.22 s 40 …. 6.14, 6.24, 10.3, 10.8, 10.9 s 40(2) …. 6.24 s 70 …. 10.3 Fair Trading Act 1987 s 42 …. 4.75 Fines Act 1996 …. 7.17, 8.49, 9.51 s 6 …. 9.43, 9.51 Foundry Regulations 1954 reg 12(3) …. 12.59 Gunpowder and Explosive Consolidated Act 1876 …. 7.10 Imperial Acts Application Act 1969 …. 2.24

Industrial Relations Act 1991 …. 1.54 Industrial Relations Act 1996 …. 1.54 s 106 …. 3.77 s 151A …. 1.38, 1.54 s 179 …. 1.55 s 197A …. 2.3, 2.61 Industrial Relations Amendment Act 2005 Sch 1 item [4] …. 1.54 Interpretation Act 1987 …. 2.50 s 8 …. 2.71 s 21(1) …. 2.73, 3.4, 8.20 s 23 …. 2.70 s 24 …. 2.74 s 33 …. 2.49, 8.31 s 34 …. 2.77 s 34(1) …. 2.78 Law Reform (Miscellaneous Provisions) Act 1944 …. 4.38, 5.97 Pt 3 …. 4.41 s 4 …. 4.40, 4.41, 5.97 s 4(1) …. 4.40 Law Reform (Miscellaneous Provisions) Act 1946 …. 3.103 Pt 3 …. 3.103, 5.82 Law Reform (Miscellaneous Provisions) Act 1965 …. 5.81, 6.43 Pt 3 …. 3.87 Pt 3 s 9 …. 5.78 s 7 …. 6.43, 6.45 s 8(b) …. 3.87 Law Reform (Miscellaneous Provisions) Amendment Act 2000 …. 3.87, 5.81

Law Reform (Vicarious Liability) Act 1983 s 7 …. 6.28 s 8 …. 3.125 Legislation Review Act 1987 …. 2.34 s 9(1)(b) …. 2.34 Limitation Act 1969 …. 5.73, 5.75, 5.91 Pt 2 Div 6 …. 5.75, 5.76 s 18A …. 5.75 s 50C …. 5.76 s 62A …. 5.76 Local Court Act 2007 s 29 …. 1.53 s 29(2) …. 1.53 s 30 …. 1.53 Local Government Act 1919 …. 4.84 Local Government Act 1993 …. 2.52 Mines Inspection Act 1901 …. 4.81, 7.57 Minors (Property and Contracts) Act 1970 …. 3.57 Occupational Health and Safety Act 1983 …. 1.54, 1.76, 2.3, 2.61, 6.6, 6.12, 6.14, 7.14, 7.27, 7.37, 7.38, 7.39, 7.42, 7.48, 8.6, 8.13, 8.24, 8.31, 8.43, 9.11, 9.13, 9.17, 9.43, 10.2, 12.39, 12.46, 12.59, 13.68, 13.71, 13.83, 13.86, 13.87, 13.88 Pt 6 s 49 …. 7.38 s 5 …. 7.27 s 15 …. 7.38, 7.42, 7.57, 8.26, 9.11, 12.33, 12.39, 12.40, 12.46, 13.67, 13.71, 13.86 s 15(1) …. 13.67 s 15(2) …. 13.67 s 15(2)(a) …. 7.54

s 15(2)(b) …. 7.57 s 15(2)(c) …. 7.58 s 15(4) …. 7.38 s 16 …. 6.6, 7.38, 8.26, 9.11 s 16(1) …. 7.49 s 16(2) …. 7.51 s 16(3) …. 7.38 s 17 …. 8.6, 8.7, 8.8 s 17(1) …. 8.7 s 17(2) …. 8.7 s 18 …. 8.12, 8.13, 8.14, 8.15 s 19 …. 9.3 s 22(1) …. 6.6 s 22(1)(c) …. 6.12, 10.2 s 22(1)(d) …. 6.12 s 31M …. 13.83, 13.86 s 31M(2) …. 13.86 s 31M(3) …. 13.86, 13.89, 13.90 s 31N(d) …. 13.83 s 49(2) …. 8.13 s 50 …. 8.6, 8.23, 8.24, 8.26, 8.27, 8.28, 8.29, 8.31, 9.43, 13.86, 13.87, 13.88 s 50(1) …. 8.27, 8.31, 13.88 s 50(1)(a) …. 8.27 s 50(1)(b) …. 8.27 s 50(1)(c) …. 8.27 s 50(2) …. 13.88 s 53 …. 7.27, 7.38, 8.26, 9.11, 9.19, 13.71 s 53(a) …. 9.13, 9.16, 9.17

s 53(b) …. 9.17, 9.19 Occupational Health and Safety Act 2000 …. 1.54, 1.63, 1.76, 2.3, 2.15, 2.18, 2.32, 2.36, 2.43, 2.62, 2.64, 3.3, 4.97, 6.6, 6.13, 6.14, 7.10, 7.13, 7.14, 7.22, 7.24, 7.29, 7.33, 7.36, 7.37, 7.41, 7.47, 7.50, 8.8, 8.9, 8.12, 8.19, 8.20, 8.30, 8.31, 8.32, 8.44, 9.2, 9.9, 9.11, 9.14, 9.18, 9.22, 9.27, 9.39, 9.49, 9.51, 9.52, 10.1, 10.2, 10.7, 10.12, 10.15, 10.16, 12.45, 12.48, 13.7, 13.8, 13.60, 13.62, 13.69, 13.70, 13.71, 13.89 Pt 2 …. 10.16 Pt 2 Div 1 …. 7.47, 9.52, 10.16 Pt 2 Div 3 …. 9.5 Pt 7 Div 3 …. 9.52 s 3(c) …. 7.28 s 4 …. 3.4, 8.9 s 6 …. 7.41 s 7A …. 7.36, 13.7 s 8 …. 2.78, 7.35, 7.36, 9.22, 10.5, 13.67, 13.69, 13.70, 13.71 s 8(1) …. 3.3, 7.40, 7.53, 7.58, 12.48 s 8(1)(b) …. 7.57 s 8(1)(c) …. 7.54 s 8(1)(d) …. 7.58 s 8(2) …. 3.3, 7.40, 7.47, 7.49, 7.50, 8.16 s 9 …. 7.40, 7.47, 7.49, 7.50 s 10 …. 8.3, 8.5, 8.6 s 10(2) …. 8.9 s 11 …. 8.12, 8.16, 8.17 s 12 …. 7.38 s 12(d) …. 9.22 s 13 …. 7.36, 9.6 s 20 …. 7.33, 7.34, 8.31, 9.2, 9.3, 9.22

s 21 …. 9.5 s 22 …. 7.36, 9.5 s 23 …. 8.17, 9.5, 12.55 s 26 …. 1.63, 2.62, 8.19, 8.20, 8.22, 8.23, 8.27, 8.28, 8.31, 8.33, 8.44, 8.47, 8.49, 8.52, 9.22, 9.23, 9.50, 13.84, 13.85, 13.87 s 26(1) …. 9.22 s 26(1)(b) …. 8.44 s 26(4) …. 8.40 s 26(7) …. 8.40 s 26(a) …. 8.28 s 26(b) …. 8.28 s 28 …. 7.36, 7.47, 9.9, 9.11, 9.12, 9.14, 9.17, 9.19, 13.71 s 28(a) …. 9.18, 9.19 s 28(b) …. 9.17, 9.18, 9.19 s 29(2) …. 10.16 s 31 …. 9.28, 9.29, 13.67 s 32 …. 6.7, 10.12 s 32(1) …. 6.6 s 32(2) …. 6.12 s 32A …. 1.55, 9.23, 9.27, 9.29, 9.30, 9.31, 9.32, 13.77 s 32A(1) …. 9.28 s 39A …. 6.13 s 65 …. 13.82, 13.85 s 65(2) …. 13.85 s 86 …. 7.36 s 87 …. 7.36, 9.5 s 105 …. 1.53 s 107(2) …. 8.13 s 108 …. 10.7

s 110 …. 9.30 s 115 …. 9.52 s 116 …. 9.52 s 123 …. 2.54, 2.64 s 123(2) …. 2.64 s 136 …. 7.36, 13.59 Sch 2.4[1] …. 10.3 Occupational Health and Safety Amendment Act 2011 …. 7.36, 8.19 Occupational Health and Safety Amendment (Major Hazard Facilities) Regulations 2008 cl 2 …. 6.13 Occupational Health and Safety Amendment (Workplace Deaths) Act 2005 …. 2.3 Occupational Health and Safety (Floors, Passageway and Stairs) Regulation 1990 …. 6.14 Occupational Health and Safety (Manual Handling) Regulation 1991 …. 12.22 Occupational Health and Safety Regulation 2001 …. 2.36, 6.14, 6.15, 6.24, 7.10, 7.23, 7.29, 10.2, 10.4, 10.5, 10.7, 10.8, 10.10, 10.13, 10.14, 10.15, 10.16 Ch 2 …. 10.13, 10.14 Ch 4 …. 10.10 Ch 8 cll 209–264 …. 10.10 Pt 4 …. 10.8 Pt 4.4 cll 79–81 …. 12.22 Pt 5 …. 10.4 Pt 5.4 …. 10.4 Pt 6B …. 6.13 Pt 7 …. 10.4

Pt 7.1 …. 10.4 reg 10 …. 10.15 cl 3(1) …. 10.14 cl 5 …. 10.17, 10.23 cl 9 …. 10.14 cll 9–11 …. 10.20 cl 9(1)(b) …. 6.24 cl 9(2) …. 10.14 cl 9(3) …. 10.14 cl 10 …. 10.15, 10.16 cl 11 …. 10.7, 10.17 cl 11(1) …. 10.7 cl 12 …. 10.20 cl 13 …. 10.20 cl 14 …. 10.20 cl 15 …. 10.20 cl 15(1)(d) …. 10.20 cl 16 …. 10.20 cl 17 …. 10.20 cl 34 …. 10.8 cl 34(1) …. 10.8 cl 39 …. 10.8 cl 45 …. 10.7 cl 45(a) …. 6.15, 10.6 cll 56–61 …. 10.10 cl 78 …. 10.15 cl 90 …. 10.5 cl 90(2) …. 10.5 cl 90(3) …. 10.5

cl 136 …. 10.2, 10.4, 10.5 cl 136A …. 10.2, 10.4, 10.5, 10.6, 10.7 cl 136A(1)(d) …. 10.4 cl 136A(3)(d) …. 10.6, 10.7 cl 136A(3)(e) …. 10.5 cl 137 …. 10.4 cl 168 …. 10.15 cl 175E(1) …. 6.13 cl 175E(2) …. 6.13 cl 207 …. 10.15 cl 353 …. 10.7 Sch 2 …. 10.7 Partnership Act 1892 s 1 …. 3.11 Police Act 1990 …. 4.60 Rules of the Supreme Court of New South Wales 1970 …. 13.54 Sch K …. 13.54 Sale of Goods Act 1923 s 19 …. 3.88 Scaffolding and Lifts Act 1912 …. 10.10 Scaffolding and Lifts (Amendment) Act 1978 …. 10.10 Shop Trading Act 2008 s 24 …. 7.10, 10.3 Shops and Industries Act 1962 see Factories Shops and Industries Act 1962 State Insurance and Care Governance Act 2015 …. 5.90, 7.25 Sch 14 …. 13.3 Statute Law (Miscellaneous Provisions) Act 2010 Sch 1.27[3] …. 2.36

Statutory Duties (Contributory Negligence) Act 1945 …. 6.42, 6.44, 6.45 s 2 …. 6.42 Subordinate Legislation Act 1989 Pt 2 …. 2.35 Pt 3 …. 2.36 s 5 …. 2.35 s 10 …. 2.36 s 10A(2) …. 2.36 s 11 …. 2.36 Supreme Court Act 1970 s 85 …. 13.26 s 85(2)(b) …. 13.26 Uniform Civil Procedure Rules 2005 …. 13.10, 13.55 Pt 31 Div 3 …. 13.55 Pt 36 r 13C(2) …. 13.54 rr 6.2–6.4 …. 13.10 Sch 7 …. 13.54 Sch 7 cl 2 …. 13.54 Work Health and Safety Act 2011 …. 1.4, 1.27, 1.40, 1.53, 1.54, 1.55, 1.76, 2.26, 2.36, 2.73, 2.78, 3.1, 3.3, 3.4, 3.85, 3.101, 3.131, 4.53, 6.6, 6.7, 6.10, 6.12, 6.14, 6.15, 6.16, 6.24, 7.1, 7.3, 7.12, 7.15, 7.17, 7.19, 7.20, 7.21, 7.22, 7.23, 7.24, 7.26, 7.27, 7.28, 7.29, 7.30, 7.31, 7.32, 7.34, 7.36, 7.39, 7.40, 7.44, 7.45, 7.47, 7.49, 7.58, 7.60, 8.6, 8.10, 8.11, 8.18, 8.19, 8.20, 8.23, 8.30, 8.31, 8.32, 8.34, 8.36, 8.37, 8.38, 8.39, 8.40, 8.47, 8.50, 8.51, 9.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.12, 9.14, 9.17, 9.19, 9.20, 9.21, 9.22, 9.23, 9.24, 9.25, 9.29, 9.30, 9.33, 9.34, 9.36, 9.37, 9.39, 9.40, 9.43, 9.48, 9.51, 9.52, 10.12, 10.21, 10.22, 13.3, 13.7, 13.8, 13.56, 13.58, 13.60, 13.63, 13.66, 13.68, 13.72, 13.82, 13.83, 13.84, 13.85, 13.89, 13.90

Pt 1 …. 7.24 Pt 2 …. 7.24, 7.30, 7.60, 8.52, 9.8, 10.21 Pt 2 Div 2 …. 8.1, 9.1, 9.21, 9.24, 9.28 Pt 2 Divs 2–4 …. 9.24 Pt 2 Div 3 …. 7.33, 8.1, 8.2, 9.1, 9.21, 9.24, 9.28 Pt 2 Div 4 …. 7.44, 8.1, 8.18, 9.1, 9.21, 9.24, 9.28 Pt 2 Div 5 …. 9.7, 9.21, 9.22, 9.24, 9.25 Pt 3 …. 7.24, 9.5 Pt 4 …. 7.24 Pt 5 …. 7.25, 7.29, 7.60, 9.6 Pt 5 Div 3 …. 7.29 Pt 5 Div 4 …. 7.29 Pt 5 Div 5 …. 7.29 Pt 5 Div 6 …. 7.29 Pt 5 Div 7 …. 7.29 Pt 6 …. 6.6, 7.25, 9.5 Pt 6 s 112 …. 6.6 Pt 7 …. 6.6, 7.25, 7.26, 9.37 Pt 7 Div 6 …. 7.29 Pt 7 Div 7 …. 6.6, 7.26 Pt 8 …. 7.25, 9.34 Pt 9 …. 7.25, 9.34, 13.58, 13.90 Pt 9 Div 3 …. 9.34, 13.58 Pt 9 Subdiv 4 …. 13.59 Pt 10 …. 7.25, 9.34 Pt 10 Div 3 …. 9.52 Pt 10 Div 5 …. 9.34, 9.52 Pt 10 Div 6 …. 9.52 Pt 11 …. 7.26, 9.52

Pt 12 …. 7.26 Pt 13 …. 7.26 Pt 13 Div 3 …. 9.34 Pt 13 Div 7 …. 6.6, 9.37 Pt 13 Div 8 …. 7.26 Pt 14 …. 2.78, 7.26 s 3 …. 7.27 s 3(1) …. 7.24, 7.27, 7.28 s 3(1)(a) …. 7.28 s 4 …. 2.52, 2.78, 4.53, 8.10, 8.22, 8.23, 8.36, 8.40, 9.33, 10.25 s 5 …. 7.30, 7.32, 8.4 s 5(1)(a) …. 7.32 s 5(1)(b) …. 7.32 s 5(2) …. 7.32, 8.23, 8.39, 9.7 s 5(3) …. 7.32, 8.23 s 5(4) …. 8.6 s 5(5) …. 8.40 s 5(6) …. 8.4 s 5(7) …. 8.37, 9.7, 9.8 s 5(8) …. 8.37 s 7 …. 3.3, 7.30, 7.33, 7.40, 8.39 s 7(1) …. 3.4 s 7(1)(a) …. 7.41 s 7(1)(b) …. 7.52 s 7(1)(c) …. 7.52 s 7(1)(h) …. 9.7 s 7(3) …. 3.4 s 8 …. 7.34, 8.4

s 8(1) …. 7.44 s 9 …. 7.47 s 10 …. 2.65, 8.3 s 12(4)–(7) …. 7.17 s 12A …. 13.70, 13.72 s 15 …. 7.30, 7.33 s 16 …. 9.3 s 17 …. 8.6, 8.51, 8.52, 10.21, 10.23 s 18 …. 8.52, 9.10 s 18(c) …. 13.72 s 18(e) …. 8.52, 9.19 s 19 …. 7.1, 7.31, 7.33, 7.36, 7.39, 7.41, 7.43, 7.46, 7.47, 7.53, 7.57, 7.60, 8.1, 8.2, 8.52, 9.9, 10.21, 12.38, 12.47, 13.7, 13.68, 13.72, 13.73, 13.90 ss 19–26 …. 7.34, 13.70 s 19(1) …. 3.3, 7.30, 7.34, 7.42, 7.43, 7.44, 7.47, 7.52, 7.58, 9.7, 13.68 s 19(1)(a) …. 7.41 s 19(2) …. 7.30, 7.39, 7.40, 7.43, 7.45, 7.47, 7.49, 7.50, 7.51, 7.52, 7.58, 13.68 s 19(3) …. 7.53, 13.68 s 19(3)(c) …. 7.54, 10.22 s 19(3)(d) …. 7.57 s 19(3)(f) …. 7.57 s 19(3)(g) …. 7.59 s 19(4) …. 7.30 s 19(5) …. 7.30, 7.45 s 20 …. 7.33, 7.44, 8.3, 8.4, 8.5, 8.6, 8.8, 10.21, 13.68 ss 20–26 …. 7.46, 8.3, 9.9

ss 20–27 …. 7.1 s 20(1) …. 8.5, 8.7 s 20(1)(a) …. 8.3, 8.5 s 20(2) …. 7.30, 7.40, 8.8 s 21 …. 6.24, 7.33, 8.3, 8.7, 8.8, 8.10, 10.9, 10.21 s 21(2) …. 6.24, 7.30, 8.10 s 22 …. 7.33, 8.11 ss 22–26 …. 8.11 s 22(2) …. 7.30 s 22(2)(f) …. 7.30 s 22(3) …. 7.30 s 22(4) …. 7.30 s 22(5) …. 7.30 s 23 …. 7.33, 8.11 s 23(2) …. 7.30, 8.15 s 23(2)(f) …. 7.30 s 23(3) …. 7.30 s 23(4) …. 7.30 s 23(5) …. 7.30 s 24 …. 7.33, 8.11, 8.17 s 24(2) …. 7.30 s 24(2)(f) …. 7.30 s 24(3) …. 7.30 s 24(4) …. 7.30 s 24(5) …. 7.30 s 25 …. 7.33, 8.11 s 25(2) …. 7.30 s 25(2)(f) …. 7.30 s 25(3) …. 7.30

s 25(4) …. 7.30 s 25(5) …. 7.30 s 26 …. 7.33, 8.11 s 26(2) …. 7.30, 8.17 s 27 …. 7.30, 7.32, 7.33, 8.1, 8.6, 8.18, 8.19, 8.21, 8.22, 8.23, 8.31, 8.32, 8.34, 8.35, 8.36, 8.37, 8.38, 8.39, 8.41, 8.46, 8.47, 8.51, 8.52, 9.28, 9.31, 13.73, 13.84, 13.85, 13.87, 13.88, 13.90 s 27(1) …. 9.28 s 27(2) …. 9.24 s 27(3) …. 9.24 s 27(4) …. 7.30 s 27(5) …. 7.30, 8.46, 8.50 s 27(5)(c) …. 8.46 s 27(5)(e) …. 8.46, 8.50 s 27(5)(f) …. 8.46 s 28 …. 3.131, 7.30, 7.33, 7.34, 7.35, 8.38, 8.39, 8.46, 9.3, 9.7, 9.30 s 28(a) …. 9.2 s 28(b) …. 9.2 s 29 …. 7.30, 7.34, 7.43, 8.38, 8.39, 9.4, 9.5, 9.7 s 30 …. 9.24, 9.28, 9.31 s 30(1)(a) …. 6.16 s 31 …. 9.21, 9.22, 9.23, 9.25, 9.27, 9.28, 9.31, 9.32, 13.66, 13.77 s 31(1)(b) …. 9.28 s 31(2) …. 9.28, 9.31 s 32 …. 9.21, 9.22, 9.51, 13.66 s 32(c) …. 9.33

s 33 …. 9.21, 9.22, 9.24, 9.33, 13.66 s 34 …. 8.36, 8.38, 9.8 s 34(1) …. 8.39, 9.7 s 34(2) …. 8.39 s 35 …. 9.5 s 38 …. 9.5, 9.34 s 38(1) …. 13.70 s 38(7) …. 9.34, 13.72 s 39(1) …. 1.5, 9.5 s 42 …. 9.8, 9.24 s 46 …. 9.6 s 47 …. 7.29, 9.6 s 48 …. 7.29 s 49 …. 7.29 s 84 …. 3.101 ss 104–106 …. 12.55 s 117 …. 9.37 ss 117–118 …. 9.37 s 119(1) …. 9.37 s 128 …. 13.82 s 141 …. 7.29 s 144 …. 9.32 s 155 …. 9.34, 13.59 s 156 …. 9.34 s 163 …. 9.34, 13.58 s 164 …. 13.58 s 167 …. 13.58 s 170(a) …. 13.58 s 170(b) …. 13.58

s 170(c) …. 13.58 s 171 …. 9.34, 13.58 s 171(1) …. 13.59 s 171(6) …. 13.59, 13.83 s 172 …. 13.82, 13.83, 13.85 s 172(1) …. 13.82 s 172(2) …. 13.82, 13.90 s 173(1)(b) …. 13.83 s 173(1)(c) …. 13.83 s 173(1)(d) …. 13.83 s 175 …. 13.58 ss 175–181 …. 13.59 s 188 …. 13.59 s 191 …. 7.52 s 213 …. 9.52 s 229B …. 13.66 s 229B(1) …. 9.33, 10.12, 13.66 s 229B(1)(b) …. 1.53 s 229B(2) …. 10.12, 13.66 s 229B(2)(b) …. 1.54, 9.33 s 229B(3) …. 9.31, 10.12 s 229B(4) …. 9.33 s 229B(6) …. 13.66 s 230(1)(c) …. 7.17, 9.36 s 230(3) …. 9.36 s 230(6) …. 7.17, 9.36 s 231 …. 7.17, 9.36 s 232(1)(a) …. 8.13

s 236 …. 9.52 s 238 …. 9.52 s 243 …. 9.34 s 243(5) …. 9.34 s 244(2) …. 9.29 s 247 …. 8.40 s 248(6)(b)(ii) …. 2.54, 9.52 s 252 …. 8.40 s 254 …. 7.26 s 254(1) …. 7.26 s 254(2) …. 7.26 s 267 …. 6.6, 6.10, 6.12, 6.15, 7.26 s 267(a) …. 6.6, 6.7, 6.24 s 267(b) …. 6.6 s 267(c) …. 6.7, 6.12, 6.15, 7.26 s 267C …. 2.36 s 269 …. 9.35, 13.60, 13.83 s 273 …. 9.5 ss 274–275 …. 7.60 s 276(1) …. 1.5 s 276C …. 7.23 Sch 2 cl 1(2) …. 7.25, 13.3 Work Health and Safety Legislation Amendment Act 2011 Sch 1 …. 2.62 Sch 4.13[4] …. 2.3 Work Health and Safety (Mines and Petroleum Sites) Act 2013 …. 7.40, 10.12, 10.21 s 3 …. 7.40 s 4 …. 10.21

Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 …. 10.12, 10.21 cl 9(1) …. 10.21 cl 28 …. 10.21 cl 31 …. 10.21 cl 32 …. 10.21 cl 38 …. 10.21 cl 43 …. 10.21 cl 44 …. 10.21 cl 44A …. 10.21 cl 44B …. 10.21 cl 50 …. 10.21 cl 66 …. 10.21 cl 67 …. 10.21 cl 68 …. 10.21 cl 69 …. 10.21 cl 70 …. 10.21 Work Health and Safety Regulation 2011 …. 2.36, 6.12, 6.13, 6.16, 6.24, 7.21, 7.23, 7.26, 9.34, 10.1, 10.9, 10.11, 10.12, 10.13, 10.20, 10.21, 10.24, 10.26, 12.71 Ch 1 …. 10.12 Ch 2 …. 10.12 Ch 3 …. 10.9, 10.12, 10.13, 10.21 Ch 3.1 …. 10.9, 10.21 Ch 4 …. 10.11, 10.12 Ch 5 …. 10.9, 10.12, 10.25 Ch 6 …. 10.11, 10.12 Ch 7 …. 7.57, 10.12 Ch 8 …. 10.12

Ch 9 …. 10.12 Ch 10 …. 10.12 Ch 11 …. 10.12 Pt 3.1 …. 6.24, 10.13, 10.21, 10.22, 10.23 Pt 4.2 …. 10.12 Pt 4.4 cll 78–80 …. 10.11 Pt 4.5 …. 10.12 Pt 5.1 …. 10.9 Pt 6.3 …. 10.11 Pt 7.2 …. 12.71 reg 36 …. 10.17 cl 5 …. 10.12 cl 5(1) …. 10.9, 12.22 cl 7 …. 8.5 cl 7(3) …. 8.37 cl 9 …. 10.21 cl 32 …. 10.21, 10.22 cl 34 …. 10.23, 10.25 cl 35 …. 6.24, 10.23, 10.25 cl 36 …. 10.9, 10.23, 10.25, 10.26 cl 36(3) …. 10.23 cl 36(4) …. 10.23 cl 36(5) …. 10.23, 10.26 cl 37 …. 10.23 cl 38 …. 10.23 cl 44 …. 10.26 cl 44(3)(a)(i) …. 10.26 cl 48 …. 10.21 cl 51 …. 10.21

cl 52 …. 10.21 cl 54 …. 10.21 cl 57 …. 10.21 cl 60 …. 10.21, 12.22 cl 60(2)(g) …. 12.22 cl 66 …. 10.21 cl 78 …. 10.9, 10.21 cl 78(2) …. 10.9 cl 78(4) …. 10.9 cl 147 …. 10.21 cl 176 …. 10.21 cl 189 …. 10.9 cl 194 …. 10.9 cl 203 …. 6.24, 10.9, 10.21, 10.22, 10.25 cl 208 …. 6.24, 10.9 cl 208(1) …. 10.9 cl 208(2) …. 10.9 cl 208(3)(b) …. 10.9 cl 208(4) …. 10.9 cl 214 …. 10.21 cl 291(a) …. 10.11 cl 297 …. 10.21 cl 299 …. 10.11 cl 300 …. 10.11 cl 305 …. 10.11 cl 315 …. 10.21 cl 330 …. 1.24 cl 351 …. 10.21

cl 389 …. 10.21, 10.22 cl 391 …. 10.21 cl 394 …. 12.71 cl 415 …. 12.71 cl 431 …. 10.21 cl 566 …. 6.13 Sch 3 …. 10.12 Sch 18A …. 9.34 Sch 18B …. 10.12 Sch 18B cl 2 …. 10.12 Sch 18B cl 3 …. 10.12 Sch 18B item 4 …. 2.62 Work Health and Safety (Savings and Transitional) Regulation 2011 cl 6 …. 2.62 WorkCover Legislation Amendment Act 1995 Sch 1 s 3 …. 2.50 WorkCover Legislation Amendment Act 1996 …. 11.86 Sch 1.2 …. 11.86 Sch 1.2 items [2]–[7] …. 11.36 Sch 1.3 …. 11.64 Sch 2.4 …. 2.61 Workers’ Compensation Act 1926 …. 2.50, 11.1 s 6(3A) …. 2.50 s 65(1) …. 4.9 Workers Compensation Act 1987 …. 2.18, 2.50, 3.28, 3.38, 4.37, 4.38, 4.77, 4.88, 5.47, 5.66, 5.70, 5.87, 5.91, 5.92, 5.93, 5.94, 5.97, 6.44, 6.46, 11.1, 11.2, 11.5, 11.6, 11.7, 11.9, 11.10, 11.11, 11.12, 11.13, 11.19, 11.31, 11.47, 11.58, 11.61, 11.67, 11.76,

11.83, 11.87, 11.109, 11.112, 11.114, 11.115, 11.116, 11.117, 11.118, 11.120, 11.121 Pt 3 Div 2 …. 11.104 Pt 3 Div 3 s 60 …. 11.111 Pt 3 Div 4 …. 11.108 Pt 3 Div 5 …. 11.112 Pt 3 Div 6 …. 11.114 Pt 3 Div 9 …. 11.113 Pt 4 Div 6 …. 11.3, 11.116 Pt 5 …. 3.32, 5.88, 11.11, 11.13, 11.120 Pt 5 Div 3 …. 5.93, 5.96, 6.46 Pt 5 Div 3 s 151E(1) …. 5.88, 11.13 Pt 6 …. 11.121 Pt 7 …. 11.115 s 2A …. 11.6, 11.10, 11.13, 11.19 s 4 …. 11.17, 11.25, 11.40, 11.76, 11.85, 11.97, 11.99 s 4(a) …. 11.19, 11.20, 11.31, 11.41, 11.101 s 4(b) …. 11.19, 11.20, 11.25 s 4(b)(i) …. 11.19, 11.40 s 4(b)(ii) …. 11.19, 11.40 s 4A …. 11.118 s 9 …. 11.14 s 9(1) …. 11.7 s 9A …. 11.19, 11.40, 11.44, 11.56, 11.58, 11.59, 11.60, 11.63, 11.64, 11.74, 11.75, 11.84, 11.86, 11.87, 11.88, 11.89, 11.90, 11.91, 11.94, 11.95, 11.96, 11.97, 11.99, 11.100, 11.102 s 9A(1) …. 11.59, 11.86, 11.93, 11.101 s 9A(2) …. 11.86, 11.94 s 9A(2)(d) …. 11.94

s 9A(2)(e) …. 11.98 s 9A(3) …. 11.40, 11.86 s 9A(3)(a) …. 11.86, 11.96 s 9A(4) …. 11.58, 11.59 s 9B …. 11.30, 11.61 s 9B(2) …. 11.30 s 10 …. 11.23, 11.58, 11.59, 11.60, 11.61, 11.63, 11.64, 11.67, 11.70, 11.74, 11.75, 11.79, 11.86, 11.91 ss 10–12 …. 11.58 s 10(1)(b) …. 11.63 s 10(1A) …. 11.64, 11.65, 11.67, 11.68, 11.70 s 10(1B) …. 11.64, 11.66, 11.70, 11.79, 11.81 s 10(1C) …. 11.65 s 10(1D) …. 11.23, 11.59, 11.64 s 10(2) …. 11.64, 11.68, 11.69 s 10(3) …. 11.49, 11.62 s 10(3)(a) …. 11.62 s 10(3)(b) …. 11.62 s 10(3)(c) …. 11.62 s 10(3)(d) …. 11.62 s 10(3)(e) …. 11.62 s 10(3)(f) …. 11.62 s 10(3)(g) …. 11.62 s 10(3A) …. 11.63, 11.64 s 10(5) …. 11.63 s 10(6) …. 11.64 s 11 …. 11.58, 11.71, 11.74, 11.75, 11.86 s 11(b) …. 11.73 s 11A …. 11.36, 11.37, 11.39, 11.76

s 11A(3) …. 11.31 s 12 …. 11.58, 11.77, 11.86 s 14 …. 11.51, 11.70, 11.78 s 14(1) …. 11.79 s 14(2) …. 11.80, 11.82, 11.83, 11.84, 11.85 s 14(3) …. 11.85 s 15 …. 11.32, 11.33, 11.35 s 15(1)(a) …. 11.32 s 15(1)(b) …. 11.32 s 16 …. 11.32, 11.34, 11.35 s 17 …. 11.35 s 19 …. 11.35 s 20 …. 11.11, 11.12 s 22 …. 11.34 s 25 …. 11.109, 11.114 ss 25–27 …. 11.103 s 25(1)(b) …. 11.87 s 25(2) …. 11.109 s 25(4)(a) …. 11.114 s 29(7) …. 11.109 s 33 …. 11.103, 11.105 s 35 …. 5.90, 11.114 s 36 …. 11.105 s 37 …. 11.105, 11.114 s 38 …. 11.103 s 40 …. 11.114 s 40(4) …. 11.11 s 43 …. 11.121 s 43(1)(e) …. 11.10

s 45 …. 11.121 s 51 …. 11.113 s 59 …. 11.111 s 59(f) …. 11.111 s 59(g) …. 11.111 s 60 …. 11.103, 11.111 s 60AA …. 5.90 s 60A …. 11.111 s 61 …. 11.111 s 65A …. 11.31 s 65A(3) …. 11.109 s 66 …. 11.103, 11.107, 11.108, 11.109, 11.110 s 66(1) …. 11.108, 11.109 s 67 …. 11.103, 11.109, 11.120 s 74 …. 11.112 ss 74–78 …. 11.112 s 75 …. 11.112 s 79 …. 11.114 s 80 …. 11.114 s 140 …. 11.116, 11.117 s 140(1) …. 11.116 s 140(1)(a) …. 11.116 s 140(1)(b) …. 11.116 s 145A …. 11.117 s 145A(4) …. 11.117 s 145A(5) …. 11.117 s 151AA …. 4.9 s 151AD …. 4.37, 4.38

s 151AD(1) …. 4.37 s 151C …. 5.91 ss 151C–151D …. 5.75 s 151D …. 5.92 s 151D(2) …. 5.91, 5.92 s 151D(3) …. 5.75, 5.91 s 151E …. 4.88, 6.46 s 151E(1) …. 6.44 s 151E(3) …. 5.88 s 151F …. 11.13 s 151G …. 5.90 s 151G(1) …. 5.89 s 151H …. 5.90 s 151I …. 5.90 s 151K …. 5.90 s 151N …. 6.44 s 151N(2) …. 5.81 s 151N(3) …. 5.92 s 151O …. 5.85 s 151P …. 4.37 s 151R …. 5.70, 5.92 s 151Z …. 5.93 s 155 …. 11.117 s 155(1) …. 11.115 s 156 …. 11.115 s 156B …. 11.117 s 168 …. 11.115 s 175A …. 11.117 s 175B …. 11.118

s 175C …. 11.10 s 241 …. 12.55 Sch 6 Pt 19H …. 11.6 Sch 6 Pt 19H cl 15 …. 11.6, 11.109 Sch 6 Pt 19H cl 16 …. 11.6 Sch 6 Pt 19H cl 18 …. 11.6, 11.63 Sch 6 Pt 19H cl 19 …. 11.6, 11.30 Sch 6 Pt 19H cl 20 …. 11.6, 11.17, 11.86 Sch 6 Pt 19H cl 25 …. 11.6 Sch 6 Pt 19H cl 26 …. 11.6 Workers Compensation Amendment (Existing Claims) Regulation 2014 …. 11.107 Workers’ Compensation (Dust Diseases) Act 1942 …. 11.18 Workers Compensation Legislation Amendment Act 2001 …. 11.108 Workers Compensation Legislation Amendment Act 2002 Sch 2[10] …. 11.118 Workers Compensation Legislation Amendment Act 2012 …. 11.6, 11.17 Sch 2 item [13] …. 11.109 Sch 5 …. 11.63 Sch 6 …. 11.30 Sch 7 item [1] …. 11.17 Sch 7 item [2] …. 11.86 Sch 7 item [3] …. 11.86 Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 Sch 2 …. 11.9 Workers Compensation Legislation Amendment (Trainees) Act

2003 …. 11.8 Workers Compensation Legislation Further Amendment Act 2001 …. 2.62 s 2(2) …. 2.62 Sch 9 …. 11.116 Workers Compensation Regulation 2010 …. 11.121, 11.122 Pt 6 …. 11.121 Pt 7 …. 11.121 cl 26 …. 11.121 Workplace Injury Management and Workers Compensation Act 1998 …. 11.2, 11.5, 11.6, 11.7, 11.9, 11.10, 11.13, 11.19, 11.115, 11.121, 11.123 Ch 3 …. 11.121 Ch 7 Pt 6 …. 5.90 Ch 7 Pt 7 …. 5.90 s 3 …. 11.6 s 4 …. 11.8, 11.14 s 4(1) …. 5.90, 11.8, 11.15, 11.109 s 5 …. 11.8 s 48 …. 11.123 s 48A …. 11.123 s 52(1) …. 11.121 s 54 …. 11.122 s 58 …. 11.122 s 376 …. 5.90 Sch 1 …. 5.88, 11.8, 11.12, 11.13 Sch 1 cl 1 …. 11.9 Sch 1 cl 2 …. 11.8 Sch 1 cl 5 …. 11.8

Sch 1 cl 17 …. 11.8 Sch 1 cl 18 …. 11.8 Sch 1 cl 19 …. 11.8 World Youth Day Act 2006 …. 2.32 World Youth Day Regulation 2008 …. 2.32 cl 7 …. 2.22 cl 7(2) …. 2.22 Northern Territory Fisheries Ordinance 1965 …. 2.44 s 8A(4) …. 2.44 s 8A(6) …. 2.44 Interpretation Act s 6 …. 2.70 s 17 …. 2.73 s 24 …. 2.71 s 24AA …. 2.73 s 62A …. 2.49 s 62B …. 2.77 Personal Injuries (Liabilities and Damages) Act 2003 s 19 …. 5.70 Return to Work Act 2015 …. 11.2 s 52 …. 5.86 Work Health and Safety (National Uniform Legislation) Act 2011 …. 7.17 Workplace Health and Safety Act 2007 …. 7.13 Queensland Acts Interpretation Act 1954 s 14A …. 2.49

s 14B …. 2.77 s 15A …. 2.70 s 32B …. 2.71 s 32C …. 2.72 s 36 …. 2.73 Anti-Discrimination Act 1991 s 108 …. 12.24 Asbestos Rule 1971 …. 4.100, 4.103 Civil Liability Act 2003 s 52 …. 5.70 Factories and Shops Act 1938 cl 18 …. 4.100 Justice Act 1886 …. 13.65 Safety in Recreational Water Activities Act 2011 …. 7.17 Statutory Instruments Act 1992 Pt 5 …. 2.35 Pt 7 …. 2.36 Work Health and Safety Act 2011 …. 7.17, 8.40 s 21(2) …. 8.17 s 28 …. 9.3 s 230(1AA) …. 13.65 Workers’ Compensation and Rehabilitation Act 2003 …. 11.2 s 189 …. 5.86 s 193A …. 5.86 s 237 …. 5.86 Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 s 44 …. 6.7 Workplace Health and Safety Act 1989

s 23 …. 6.11 Workplace Health and Safety Act 1995 …. 6.6, 6.7, 6.9, 6.11, 6.17, 7.13, 7.17 s 24 …. 6.9 s 26 …. 6.9, 6.17 s 26(3) …. 6.18 s 27 …. 6.9 s 28 …. 6.9, 6.17, 6.18 s 28(1) …. 6.9 s 28(3) …. 6.11 s 29B(a) …. 6.17 s 30 …. 6.11 s 31 …. 6.11 s 37 …. 6.18 s 37(1)(b) …. 6.18 s 37A …. 6.7, 6.9 South Australia Acts Interpretation Act 1915 s 4 …. 2.73 s 7 …. 2.70 s 22 …. 2.49 s 26 …. 2.71, 2.73 Equal Opportunity Act 1984 …. 12.67 s 21(4)(h) …. 12.25 s 71(2)(a) …. 12.25 Occupational Health, Safety and Welfare Act 1986 …. 7.13 s 23 …. 6.6 s 24 …. 6.6, 6.34

s 24(2) …. 8.12 s 24(2a)(a) …. 6.34 Occupational Health, Safety and Welfare Regulations 1995 reg 2.10.3(3) …. 10.18 Return to Work Act 2014 …. 11.2 Pt 5 …. 3.24 ss 70–94 …. 5.86 s 72 …. 5.86 s 84 …. 5.86 Subordinate Legislation Act 1978 Pt 3A …. 2.36 Work Health and Safety Act 2012 …. 7.18 Tasmania Acts Interpretation Act 1931 s 8A …. 2.49 s 8B …. 2.77 s 9 …. 2.70 s 24(d) …. 2.72 s 24A …. 2.71 s 41 …. 2.73 Evidence Act 2001 …. 13.31 Industrial Safety, Health, and Welfare Act 1977 …. 2.31 s 32 …. 2.31 Industrial Safety, Health, and Welfare (Administrative and General) Regulations 1979 …. 2.31 reg 201 …. 2.31 Subordinate Legislation Act 1992 s 5 …. 2.35

s 6 …. 2.35 s 11 …. 2.36 Sch 1 …. 2.35 Work Health and Safety Act 2012 …. 7.18 Workers’ Rehabilitation and Compensation Act 1988 …. 11.2 s 138AB …. 5.86 Workplace Health and Safety Act 1995 …. 7.13 Victoria Accident Compensation Act 1985 s 134AB …. 5.86 s 134AB(30) …. 5.86 Charter of Human Rights and Responsibilities Act 2006 …. 13.82 Criminal Procedure Act 2009 …. 7.39 Sch 1 cl 1(b) …. 7.39 Equal Opportunity Act 1984 …. 12.25, 12.41 s 21(4)(d) …. 12.41 s 21(4)(h) …. 12.25, 12.41 Equal Opportunity Act 1995 s 80(1)(a) …. 12.25 Equal Opportunity Act 2010 s 86 …. 12.25 Evidence Act 2008 …. 13.31 Factories and Shops Act 1885 …. 7.10 Interpretation of Legislation Act 1984 s 11 …. 2.70 s 35(a) …. 2.49 s 35(b) …. 2.77 s 37 …. 2.71

s 38 …. 2.73 Mental Health Act 1986 …. 6.20 s 10 …. 6.19, 6.20 Occupational Health and Safety Act 1985 …. 7.13, 12.41, 13.7, 13.74 s 21 …. 13.7 s 21(1) …. 13.7 s 22 …. 7.50 s 52 …. 8.24 Occupational Health and Safety Act 2004 …. 2.43, 2.78, 7.13, 13.7 s 4 …. 7.39 s 21 …. 7.39 s 21(1) …. 9.11 s 32 …. 9.32 s 34 …. 6.10 s 144 …. 8.19 Subordinate Legislation Act 1994 Pt 2 …. 2.35 s 5 …. 2.36 Workplace Injury Rehabilitation and Compensation Act 2013 …. 11.2 ss 324–335 …. 5.86 s 333 …. 5.86 s 335 …. 5.86 s 340 …. 5.86 s 342 …. 5.86 ss 360–365 …. 5.86 Wrongs Act 1958 s 366 …. 5.86

Western Australia Interpretation Act 1984 s 5 …. 2.73 s 10 …. 2.71 s 18 …. 2.49 s 19 …. 2.77 s 20 …. 2.70 Occupational Health Safety and Welfare Regulations 1988 …. 6.10 Occupational Safety and Health Act 1984 …. 7.13, 13.64 s 23D …. 3.7 s 46 …. 13.64 s 55 …. 8.47 Petroleum Pipelines Regulations 1970 reg 10 …. 6.22 Police Act 1892 …. 2.40 s 84 …. 2.40 Workers’ Compensation Act 1912–1960 …. 3.26 Workers’ Compensation and Injury Management Act 1981 …. 11.2 s 93K …. 5.86 International Convention on the Rights of Persons with Disabilities …. 12.14 United Kingdom Australia Act 1986 …. 2.24 s 2(1) …. 2.11 Australian Courts Act 1828 …. 1.48, 1.49 Colonial Laws Validity Act 1865 …. 1.49 Commonwealth of Australia Constitution Act 1900 …. 1.22, 1.25, 1.35

Corporate Manslaughter and Corporate Homicide Act 2007 …. 13.78 s 1(1) …. 13.78 Factories Amendment Act 1844 …. 7.8 Factories Regulation Act 1833 …. 1.49, 7.7, 7.8 Fire Precautions Act 1971 …. 8.24 Health and Safety at Work etc. Act 1974 …. 6.27, 7.12, 7.35, 7.42, 7.47, 8.24, 12.65 Pt I …. 7.12 s 2 …. 7.35 s 3 …. 7.35 s 15 …. 6.27 s 37(1) …. 8.24 s 40 …. 7.35 s 47(2) …. 6.27 Provision and Use of Work Equipment Regulations 1992 reg 6 …. 6.32 Sex Discrimination Act 1975 …. 12.65 s 51 …. 12.65 s 51(1) …. 12.65 Statute of Westminster …. 2.24 s 2(2) …. 2.24 Supply of Machinery (Safety) Regulations 1992 …. 6.27 United States of America Constitution …. 1.25, 1.35

TABLE OF CONTENTS Foreword to the First Edition Foreword to the Second Edition Preface Table of Cases Table of Statutes

Part 1

INTRODUCTION TO THE AUSTRALIAN LEGAL SYSTEM

Chapter 1

Law, its Sources, and the Common Law

Chapter 2

Sources of Law: Statutes and How the Courts Read Them

Part 2

WORKPLACE SAFETY AND CIVIL LAW

Chapter 3

Workplace Safety and the Contract of Employment

Chapter 4

Protection of Workplace Safety under Tort Law — Negligence: Duty of Care

Chapter 5

Protection of Workplace Safety under Tort Law — Negligence: Other Matters

Chapter 6

Protection of Workplace Safety under Tort Law:

Breach of Statutory Duty

Part 3

WORKPLACE SAFETY AND CRIMINAL LAW

Chapter 7

Criminal WHS Law: General Introduction, Primary Duties

Chapter 8

Criminal WHS Law: Other Health and Safety Duties

Chapter 9

Criminal WHS Law: Other Duties and Enforcement

Chapter 10

Workplace Safety under Regulatory Criminal Law

Part 4

WORKPLACE SAFETY AND THE GENERAL LAW

Chapter 11

Workers’ Compensation under Statute

Chapter 12

Workplace Health and Safety and Antidiscrimination Law

Chapter 13

Workplace Safety and Litigation

Appendix 1 Appendix 2 Appendix 3 Appendix 4 Appendix 5 Appendix 6 Appendix 7

The Constitution (Table of Contents) The Constitution (Selected Extracts) Categories of Law Australian Hierarchy of Courts Outline of Federal Parliamentary Procedure: From a Bill to an Act The Parts of an Act of Parliament Comparison of OHSA 2000 (NSW) and WHSA 2011

Selective Comparison between WCA 1987 (NSW) and other State Legislation Recommended Further General Reading on WHS Law Appendix 8 Index

[page 1]

Part 1 INTRODUCTION TO THE AUSTRALIAN LEGAL SYSTEM 1. 2.

Law, its Sources, and the Common Law Sources of Law: Statutes and How the Courts Read Them

[page 3]

1 LAW, ITS SOURCES, AND THE COMMON LAW

Aims The aims of this chapter are: to introduce the role that law can play in furthering the goals of workplace health and safety; to give you a general introduction to the Australian legal system; and to provide an introduction to the way in which legislation is made, and how the common law develops through case law.

Objectives After working through this chapter, you should be able to: describe generally how the law can be used to deal with workplace safety problems; and recount the way in which the ‘common law’ develops as judges decide cases.

Introduction 1.1 This book is designed to give you a general background on the aspects of the Australian legal system that affect the area of workplace health and safety. But we need to start out with an important preliminary question: What are we talking about when we discuss ‘law’ or ‘the legal system’ in Australia today?

Notion of law 1.2

Consider the following definitions:

A legal system may be defined as that framework of rules and institutions within a community or a state, which at any given point in time, the citizens have agreed will regulate and be binding upon themselves in their relations with one another and the community or state.1

[page 4] Law is a body of rules by which both the affairs of a community are organised and the general order and well-being of the community are maintained … the crucial difference between law as a special type of rule of human conduct and other types of rules of human conduct is that law comprises a rule of conduct which will be recognised by courts.2 Law, like happiness, poverty and good music, is different things to different people … we start by simply identifying the law as comprising those rules which will be recognized and enforced by the courts.3 Law An authoritative system of religious or secular norms, written or unwritten, which govern a society, can empower or discipline its members, and can be enforced by sanctions.4 A law may be defined as a … [declaration] … of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who … are supposed to be subject to his power.5

Stop and Think 1.16 Now that you have read these quotes, what sort of key words

do they use to define law? Do you think their authors have left anything out? Do you disagree with any of the definitions?

Most people would probably agree that when we are dealing with law, we are dealing with: rules of behaviour; and to which our society attaches some sort of sanction through the courts. In general, these rules are binding on all members of society. Notice that the quote from Meek says that the source of this obligation to obey the law is the ‘agreement’ of all the citizens, while Bentham refers to the orders of a ‘sovereign’. Philosophers [page 5] have spent a lot of time and energy on the question, ‘Why obey the law?’, but we will content ourselves with simply knowing that the law imposes obligations, and that those obligations are usually followed up with some sort of sanction or punishment if they are not met.

Law distinguished from other sources of ‘obligation’ 1.3 It is important, however, to distinguish law from other possible sources of obligation that people may feel bound by in choosing their behaviour, such as: custom; morality; religion; and politics.7

Custom is a strong force for influencing human behaviour. Each of us follows all sorts of customs that we inherit from our families and our society, many of which we are not even aware of. It is only when we go outside of our own country that we realise the many things we do and say that others external to our own society find offensive or hard to understand. But, in our society, custom is not law. Our Australian custom, for example, is to look at someone when we are talking to them. They may annoy us if they sit facing away from us while we talk to them, but they will not suffer any legal penalty for doing so. Similarly, the forces of morality and religion are very strong but not, in our Western culture, considered law. I may regard it as terribly wrong to be unfaithful to my wife, but the law will not penalise me. Nor will I commit a criminal offence if I do not go to church next Sunday. Even politics, which is viewed as the wishes of the government of the day, is not law — as we will see, the government cannot always put into practice what it would like to, because sometimes the courts rule that it is exceeding the legal authority it has been given. So the study of ‘law’ is about the rules to which, in our community, certain sanctions, or penalties, are attached. There are different types of sanctions, but in general their common characteristic is they are imposed by a court, following a breach of the standard of behaviour; or, perhaps, it is better to say that a breach of the standard may ultimately lead to a court having the power to impose sanctions. We will see in 1.33 below that to be a ‘law’, rules of behaviour must find their origin in one of two sources of authority. Before we get to that point, however, there are some other important characteristics of our legal system that we need to consider.

Great divide: criminal versus civil law 1.4

As you will see, when we come to the subject of ‘dividing’

up the law, there are, generally speaking, two types of sanction systems: the criminal courts and the [page 6] civil courts. The criminal courts are empowered to punish breaches of the criminal law by the imposition of fines or a sentence of imprisonment. The sorts of matters that are the subject of the criminal law are, generally speaking, matters that are serious enough for the community to take the initiative in meting out the punishment, rather than leaving it to the individual. Fines that are paid in criminal matters are usually paid to the government, rather than to an individual. By contrast, the civil courts generally deal with disputes between individuals in which one person is asserting a right that is being denied by another. The usual sort of civil cases are in the area of contract law, tort law (often the law of ‘negligence’), or property law. This distinction is important when dealing with law in the area of workplace health and safety, because in this context both the criminal and the civil law are involved. The criminal law is invoked when statutes such as the Work Health and Safety Act 2011 (NSW) lay down a standard of behaviour, and impose a monetary fine or a sentence of imprisonment, for breach of that standard. The civil law is invoked when an individual worker sues an employer in the civil courts for damages for personal injury that they have suffered.

‘Authority’ and ‘behaviour’ rules 1.5 There is one more element that we need to add to our definition of law. We have been looking at the notion of ‘rules’ that govern a person’s behaviour (‘behaviour’ rules). There is

another sort of ‘rule’, which is quite important in the legal area: this is a rule which tells a person whether another rule applies to them or not. This is what we might call an ‘authority’ rule, as opposed to a ‘behaviour’ rule. These ‘authority’ rules are neither ‘civil’ nor ‘criminal’ — they are the rules that are applied in both sorts of cases to determine what the ‘behaviour’ rules should be. An authority rule, for example, would tell a person which of two different governments, which have made different rules, they should obey. In some books ‘behaviour’ rules are called ‘substantive’ law, and ‘authority’ rules are called ‘procedural’ or ‘adjectival’ law.

Stop and Think 1.2 Examples of rules Consider each of the following examples of rules: 1. Do not commit adultery. 2. Remain quiet while the lecturer is speaking. 3. A contract for the sale of land must be in writing. 4. ‘s 39(1) The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs. Maximum penalty: (a) in the case of an individual — $10,000, or (b) in the case of a body corporate — $50,000.’ [page 7] 5.

‘s 276(1) The Governor may make regulations in relation

to: (a) any matter relating to work health and safety, and (b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act.’ 6. ‘The precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning’: Cook v Cook (1986) 162 CLR 376 at 390. Now write down answers to these questions: Are any of these rules likely, in Australia at the moment, to be a law or some other kind of governmentsanctioned regulation? If any of these rules is a law, is it a ‘behaviour’ rule or an ‘authority’ rule? If any of these rules is a legal ‘behaviour’ rule, what sort of law might it be — a criminal or civil law? How does the ‘form’ of the rule (that is, what it looks like) help you to decide on your answer?

Fundamental characteristics of Western legal system 1.6 Patrick Parkinson’s book Tradition and Change in Australian Law, which is noted in the Further Reading list at the end of this chapter, is a very readable summary of some of the factors that have shaped the Australian legal system we have today. He points out that this system shares a number of features with legal systems of other Western countries. He identifies three characteristics of law in the Western society that we can see in Australia today: autonomy, centrality and authority. Autonomy 1.7

The first characteristic, Parkinson says, is the autonomy of

law. This is a strange word, which means basically what we have discussed already: that law is an area that is separate from custom, morality, religion or politics. Legal rules have a relationship or connection with these other sources of obligation — but as law, they are not the same thing. So when a court in Australia enforces a legal rule, it does not do so because the majority of people agree with the rule (though they may); it does not enforce a rule because the judge privately believes it to be right (though they may); it does not enforce a rule because it agrees with a particular religion (though it might); or because the Prime Minister wants it to. The court enforces the rule because it is a legal rule. The rule must be justified by the ‘authority’ rules of the law. To put it another way, for a rule to be a legal rule it must conform to the rules of the ‘legal game’. To anyone raised in Western society, this seems so obvious that it hardly needs to be said; however, the situation is not the same in all cultures and countries. In some countries, religious law shares an equally important place in the legal system with secular law. The distinction between the law and religion of a country becomes increasingly blurred. Whether this is good or bad, it is very different to the Western idea of law. [page 8] Centrality 1.8 The second characteristic that Parkinson mentions is the centrality of law in Western society. He says: Law pervades every aspect of modern society, and is a primary means of social control … Law, in itself, is perceived as having not only a coercive value, but also an educative power. It sends messages, as well as mandating particular conduct.8

You only have to think of the laws that you are aware of to realise how true this is. When you get up in the morning, you are

probably in a house that is either leased or owned by you or someone in your family, under a current or previous contract of some sort. You eat your breakfast cereal from a packet that by legislation is required to tell you the ingredients that go into the food that you are eating. No doubt the factory that made the cereal had to conform to a myriad of food and hygiene regulations (and, as we will see, workplace health and safety regulations!) in producing the product. You are able to drive to work or the shops because you have a licence issued under statute, in a car registered and insured under statute, on roads that were laid out by planners who had to obtain statutory approval from a statutorily elected local council. Most importantly, for our purposes, when you go to a workplace you enter a whole web of legal relationships, rights and responsibilities, many involving your safety as an employee, or as a contractor, or even as a visitor. Authority 1.9 To round off Parkinson’s analysis, he refers to the moral authority of the law as the third and central characteristic of law in Western society. This is a less obvious but still important feature. He says: [T]he law commands a high level of respect in western societies which is independent of popular acceptance either of the merits of particular laws or of the level of respect shown to the law makers.9

That is, he argues, most people will tend to obey the law — not for fear of sanctions, but simply because it is right to do so. He acknowledges that this is not universally so, particularly in certain areas of the law, such as those that govern speeding. He also says that in societies where large parts of the population are alienated and oppressed by those who are more powerful, respect for the rule of law may disappear. However, the moral authority of the law is still a factor to be reckoned with.

[page 9]

Law as tool for workplace health and safety 1.10 We can now see why we need to study the law as part of an overall study of the area of occupational, or workplace, health and safety. The last two characteristics identified by Parkinson, as discussed above, are particularly important: the centrality and the moral authority of the law. Workplace health and safety (WHS) is, of course, a major issue in Australia today. Unfortunately, finding accurate data about the extent of the problem is not easy. But the Federal Industry Commission in 1995 estimated that every year more than 500 people in this country die as a result of an accident at work, that being a traumatic injury. It seems that this figure may have come down in recent years — the first report of the National Review into Model Occupational Health and Safety Laws in 2008 noted that about 270 Australians died in this way in 2005–06.10 But this is still far too high! It is possible that up to 2000 people every year also die because of a work-related disease, the majority from cancer that is induced by exposure to hazardous materials. This may be an underestimate. The foreword to the New South Wales Legislative Council Standing Committee on Law and Justice’s Report on the Inquiry into Workplace Safety — Interim Report (Report No 8, December 1997) suggests that in 1996–97: ‘2,900 people died from workplace accidents and occupational diseases in Australia.’ The report adds: ‘During the same period there were 2,030 people killed on the roads.’11 Over and above the deaths that occur through work, about 200,000 people in Australia are unable to work at all due to injury or disease contracted in the workplace.12 1.11

The Productivity Commission (successor to the Industry

Commission) presented its report National Workers’ Compensation and Occupational Health and Safety Frameworks in March 2004. The report echoes the data mentioned above, while repeating cautions that the full extent of the problem is not revealed by reported claims for compensation. They cite a submission from the Department of Employment and Workplace Relations, stating that: The total number of workplace injuries and diseases in Australia may be much higher than the number eligible for compensation. A survey by the Australian Bureau of

[page 10] Statistics found that over a twelve month period, five percent of the workforce or 477,800 workers experienced a work-related injury or illness. This equates to an incidence rate of 49.3 per thousand employees, compared to an incidence rate of 15.2 per thousand employees that the workers’ compensation schemes actually reported.13

More recent data show that across Australia in 2013 (the last period for which results are currently available) there were an estimated 196 compensated workplace fatalities and 117,815 serious workers’ compensation claims.14 (As noted already, these figures understate the actual numbers, as some workplace injuries or deaths may not be claimed for, or claimants or dependants may not be able to claim compensation for various reasons.) Whatever the precise figures, clearly this is a major social problem that needs to be addressed. The Industry Commission and subsequent Productivity Commission reports, and many other reports, have tried to analyse the causes of the problem and suggest solutions.15 Part of that solution inevitably involves the use of law. 1.12 WHS goals are, of course, not confined to the area of law. It is possible to imagine safety at work being achieved in some communities without involving the law. There may be a strong

family or customary way of doing things that involves the utmost care and concern for the wellbeing of workers. Or there might be religious rules that achieve the same ends. Political pressure, in some cases, may help. But in a Western society like Australia (and, as we will see, Britain before it) it is natural to turn to one of the chief instruments for social policy — the law — to achieve results in maintaining safety in the workplace. And the (albeit residual) moral authority of the law gives the task slightly more legitimacy than a gang of employees with guns saying: ‘Fence that machine.’ Therefore, the law is one of the tools that needs to be used to address this problem. In addition to being a tool for change, the law is also, of course, the background against which any changes must take place. Even if solutions to WHS problems did not of themselves involve legal changes, they would have to occur in a society that is governed by a huge body of law that affects almost every part of life. In brief, then, the centrality and moral authority of the law are two of the important reasons for writing this book. If WHS policies are to be implemented, those who implement and think about them have to know the legal background of our society, and be aware of the implications of action. And the law itself may be a major way of achieving the important goals of safety in the workplace. [page 11]

Compensation and prevention 1.13 There are two particular ways in which the law operates in the WHS area. These approaches differ according to whether they focus on what comes before, or what comes after, a work-related accident.

The first legal approach is that of compensation. Historically, this is the way in which the law first became involved in workplace safety. The approach looks at the situation after a workplace accident. When someone is left injured by such an accident, the law addresses the issue: who should pay for that person’s loss? Traditionally, the law has said: the person to blame for the loss according to the applicable rules of tort law. This is the area of claims for damages under the common law, which we will be looking at later in this book, in Chapters 4–6. Parallel to the common law, another system for compensation has developed, which is called ‘workers’ compensation’. We will touch on this area in Chapter 11, as it also impacts on the issue of safety. The second area in which the law can be involved is in the area of prevention. Here the focus is on what comes before an accident. Obviously, compensation provisions have a preventative aspect: if an employer is going to have to pay out damages for an injury incurred by an employee, there is some incentive to prevent the injury from occurring in the first place. However, it was found that, for a number of reasons the compensation system was not always effective in reducing accidents. As a result, parliaments have enacted statutes which brought the area of prevention into the realm of the criminal law. These Acts introduced criminal penalties for breaches of safety principles. Statutes like this form a major focus of this book, particularly in Chapters 7–9.

Legacy of history — English ‘constitution’ and Australia 1.14 Let us make a start on the task of understanding law in Australia. To do that, we need to go back in time. If there is anything about law that distinguishes it as a discipline from other disciplines such as engineering, medicine or science, it is this: law is rooted in history. To understand the law today, you need to

know at least something about the law of the past. And further, that many laws today are only law because they were law in the past — cases from the past provide authority for judicial decisions taken today. The first few chapters of Parkinson’s book deal helpfully with this area.16 He points out that there were three main concepts that characterised the English legal system that we inherited in Australia: the rule of law, due process and the separation of powers. I want to also mention one further idea that was very important in previous years, but which is no longer so crucial: the supremacy of parliament. [page 12]

Rule of law 1.15 The first concept is the principle of ‘the rule of law’. Essentially, this means that no one person’s arbitrary whim should be the basis of a legal decision; legal rights and duties must always be decided on the basis of proper legal procedure. The famous constitutional writer, A V Dicey, put it this way: [The rule of law means] the absolute supremacy of regular law as opposed to the influence of arbitrary power … a man may … be punished for a breach of the law, but he can be punished for nothing else.17

This principle, while not spelled out explicitly in the Australian Constitution, is clearly assumed. Dixon CJ commented in the High Court case of Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193, that: [The Constitution] is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.18

In other words, our legal system assumes that judges should decide cases in accordance with the pre-existing law as far as possible, instead of simply how they feel on the day. In addition, the law should treat all persons equally. For much of English history, there was a struggle to ensure that the rich and the poor, the nobleman and the commoner, were treated in the same way. Even the king himself was held to be subject to the law. Power alone should not justify differential treatment. In this way, the general principles of the common law led to the movement towards anti-discrimination laws generally today.19

Due process 1.16 A related principle is that of ‘due process’, the rule that was initially established by the Magna Carta of 1215 (see 1.20) that deprivation of property or liberty should only be imposed once the proper legal procedures have been followed. In our modern criminal justice system, there are a number of features that are seen as essential to ‘due process’. One is the presumption of innocence: that no one may be convicted of a crime unless it is proved beyond reasonable doubt that they are guilty. The other is that of trial by jury for serious charges. We will be touching more on these later. [page 13]

Separation of powers 1.17 The notion of ‘separation of powers’ is another concept that has become a fundamental principle underlying the English legal system — although, ironically, the doctrine as such was first articulated by a Frenchman, Montesquieu, in a work called The Spirit of the Laws in 1748. The notion states that it is best that power in a legal system be

distributed around different bodies, rather than centralised in one body. In this way, there are ‘checks and balances’ placed on the exercise of power, to counter the tendency of the powerful to act only in self-interest. To use an example, which will be familiar to any parent: one way of ensuring an even distribution of the last part of a chocolate cake among two children is to invite one child to cut the cake and the other to choose a piece. As the theory goes, the child doing the cutting will attempt an even distribution, knowing the other is doing the choosing. The doctrine of the separation of powers therefore requires that the legislative, executive and judicial powers should each rest with different groups of people. The one who makes the laws should be a different person from the one who carries out the laws, and different again from the one who judges whether the penalty of the law should be applied to somebody. The reason for this can be seen in examples of abuses of power in English history. If there is to be a general rule that applies to all people, it is obviously unsatisfactory that the person who made the rule (the one who ‘cuts the cake’) also gets to be the one who decides to whom the rule applies in particular cases (the one who ‘chooses’). Otherwise the rule-maker may make rules that favour themselves, or unfairly attack those they do not like. It will also be better if the judge is not part of the public service, since they are often called on to decide whether the public service is behaving according to the law. If you know anything about the American system, you will know that they have implemented this separation of powers fairly strictly. The American President is the ‘chief executive’, the person in charge of carrying out the laws of the United States. He or she is not a member of the United States Congress. That is why the Congress and the President (when not from the same political party as the majority of the members of Congress) are commonly at odds over budget issues, for example.

1.18 In the system that exists in England and Australia, there is no such complete separation of the executive and the legislative arms of government. The role of Prime Minister is, in fact, a ‘chief executive’ role — in charge of the public service. But he or she is also a member of the Federal Parliament as the leader of the political party commanding the majority of seats in the Lower House (the House of Representatives). This is a system that is sometimes called ‘responsible’ government: the executive is responsible to the parliament. It is sometimes also called the ‘Westminster’ system (from the location of the United Kingdom Parliament, where it originated). It is a system that basically operates on ‘convention’ and ‘unwritten rules’; for example, the rule that the Prime Minister must maintain the confidence of the Lower House to remain in office. [page 14] Still, the Prime Minister and the other ministers in the Cabinet are not able to make laws on their own. Laws to govern the land must be publicly debated and voted on in the parliament. As is frequently common in Australia, where there is no absolute majority for the federal government in the Upper House (the Senate), the opposition and other smaller parties can sometimes have a real impact on what becomes law.. While the separation between the legislature and the executive is fairly weak in Australia, the separation of the judiciary from both the parliament and executive is very strong, and very clearly insisted on. An independent judiciary is regarded as a vital protection against the excesses of a particular government. We will return to this at 1.62 below.

‘Qualified’ doctrine — supremacy of parliament

1.19 The fourth doctrine of importance here is the doctrine of ‘parliamentary supremacy’. This is something that has been traditionally regarded as an important part of the legal system we initially inherited from the United Kingdom. These days, however (particularly in Australia), the doctrine needs to be qualified. The doctrine of ‘parliamentary supremacy’ means that the laws made by parliament are the final source of authority in the legal system. An Act of Parliament can overturn a court decision or any decision of an administrator or bureaucrat. Generally, this principle remains valid in Australia today. But here it is subject to some qualifications from the Australian Constitution. Having a written constitution, under which the High Court has the power to interpret that constitution, we cannot say that parliament is completely ‘in control’. The High Court has the power to declare that a law passed by any parliament (whether state or federal) is contrary to the Constitution, and hence invalid. Where the principle of parliamentary supremacy is most relevant is in the fact that the will of parliament cannot be overturned by the sole decision of the Prime Minister or any other executive officer. Over the years, the government has, for example, had its own ideas about a number of issues, such as native title, the goods and services tax (GST), workplace relations or a carbon-trading scheme, on which it has not been able to simply make orders. It has to follow the procedures of parliament. And often the government of the day may have to compromise because it does not have control of the Upper House.20 1.20 While this — the primacy of parliament — is something we accept today as a matter of course, that point was only reached in England after a long, hard struggle, and after a civil war in the mid-seventeenth century. Initially, it was the king or queen who had absolute power — their word was the law. Over the years, there was a slow change from absolute monarchy to the stage at

which the monarchy acknowledged certain restrictions on their power. [page 15] Probably the first major official acknowledgment of this limitation of power occurred with the Magna Carta, the ‘Great Charter’, of 1215. The king at that time, King John, faced a rebellion from his nobles when he tried to raise taxes. As part of the settlement, he acknowledged that he would only impose extra taxation on his subjects with the consent of a body of noblemen, which was the precursor of the later English Parliament. The Magna Carta also established the principle that no one should be imprisoned or punished except after a trial that would take place in accordance with certain rules. (While the original document signed in 1215 was in fact overturned not long afterwards, it became the model for a series of similar laws, which over the years became accepted as forming a fundamental part of the British system of government.) After that point, the relative power of parliament and the Crown oscillated for many years, with tensions finally coming to a head in 1640, when King Charles I and parliament clashed over the king’s power to tax. In the end, this led to a civil war between the rival armies of parliament and the king, and finally in 1649, to the victory of parliament and Charles’ execution. From 1649 to 1660, England was without a king, and became what was called a ‘Commonwealth’ (a republic, governed either by parliament or by Oliver Cromwell alone for a time as ‘Lord Protector’). In 1660, though, once people had seen that an absolute parliament could do as much damage as an absolute monarch, the monarchy in England was restored. After the Restoration, however, it was clear that the ultimate authority in England was now the parliament, not the king. So, in 1688, in a ‘bloodless’ revolution, parliament replaced King James II with another king

and queen, William and Mary, who were invited from Europe to take the throne. From that time to the present, parliament has been the supreme legal authority in England.21 The theory is the same in Australia, with one exception: Australian parliaments, particularly the Federal Parliament, are only supreme when acting in accordance with a written constitution. 1.21 The issue of parliamentary supremacy, when acting constitutionally, was addressed by the High Court in Kable v Director of Public Prosecutions (DPP) (NSW) (1996) 189 CLR 51; 138 ALR 577. The question in that case was: could the New South Wales Parliament pass a law that was aimed at only one person (Mr Kable) and which required a court to be satisfied that he would not in future offend, before he was allowed to go free? In that case Dawson J said (CLR at 74): [P]arliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom.

[page 16] The other judges of the court agreed on this point. (In fact, the Act was declared invalid by a majority of the court, but not on the basis of a lack of power in the New South Wales Parliament. The grounds for the decision related to the separation of powers and the federal judicial system, which we will deal with at 1.63.) Similar points were made by the High Court in Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; (2001) 205 CLR 399. In that case, the owners of a coalmine were objecting to the fact that the New South Wales Parliament had compulsorily acquired their coal and put a limit on the amount of compensation the government would pay for the acquisition. The owners of the coalmine argued that there was an implied limit on the power of the state parliament to acquire property without giving

compensation on ‘just terms’. There is such a limit on Commonwealth power, but no such limit is expressed in the New South Wales Constitution. The High Court rejected the owners’ claim. As a result, there was no legal avenue for redress against the state parliament’s decision. Still, the High Court in Durham did point out that the doctrine of parliamentary sovereignty is always subject to the Constitution, so that, for example, the State of New South Wales cannot act in a way that goes beyond the limits of the power that its Constitution provides. We will see what those are below.

Development of Australian system 1.22 Australia, then, inherited certain values from England: a system where law, not the arbitrary decree of a monarch, is the supreme authority; where due process must be followed; and where checks and balances are in place to protect the liberty of the individual. But the way in which these values were implemented in Australia was shaped by the history of European settlement of the continent. Later, we will discuss the initial settlement of the country, and the common law. At this point we simply need to clearly understand the structures of government. You are no doubt familiar with the settlement of Australia from 1788 onwards. In brief, New South Wales was the first colony established, which initially covered the entire east coast of Australia. During the course of the nineteenth century, the separate colonies of Tasmania, Victoria and Queensland were carved out of the New South Wales colony. South Australia and Western Australia were established independently. By the end of the nineteenth century, there were six separate, generally self-governing, colonies occupying the continent of Australia. For a number of reasons, these colonies started to think about the idea of federation — Parkinson mentions factors such as possible threats from outside.22 For the smaller colonies, such as

South Australia, one motivating factor was a free trade system — customs tariffs at the borders of the different colonies worked in favour of the larger colonies. Perhaps, as we experienced to some extent at the end of the twentieth century (when proposals for a republic were mooted), the pressure of a ‘new era’ signalled by the change of the century encouraged people to feel that a new political arrangement was appropriate for the 1900s. [page 17] Whatever the reasons, the 1890s saw a series of constitutional conventions, culminating in the 1897–98 Convention that agreed on a draft constitution. This was then voted on in referenda that were held in each colony, with the final approval of all colonies being achieved in mid-1899. Finally, in July 1900, the United Kingdom Parliament passed the Commonwealth of Australia Constitution Act 1900 (UK) (the Constitution Act), and Queen Victoria proclaimed that the Commonwealth of Australia would commence on the first day of the new century, 1 January 1901. Note that, because the United Kingdom was the ultimate sovereign power at the time, the Australian Constitution is actually contained inside an Act of the United Kingdom Parliament. However, in a real sense, it is also the result of a popular vote by the people of the six colonies.

Overview of Australian Constitution 1.23 This section contains a brief overview of the document that we call ‘the Constitution’: the foundational document of the Australian legal system. Who says? 1.24

The Australian Constitution is important because it

becomes the ‘stopping point’ of the question ‘Why should I do that?’ Basic questions with regard to the law are those every kindergarten child asks when ordered to do something: ‘Why? Who says? Why should I do what you say?’ As we have discussed, in the United Kingdom the final ‘stopping point’ in that country is parliament — whatever is stated by parliament constitutes the rules of the law and the sanctions of the law can be applied if you disobey. However, in Australia we follow a slightly different route. Because we are a federation of states, with nine parliaments (including the two so-called ‘self-governing’ territories, the Northern Territory and the Australian Capital Territory), we cannot simply answer the questions posed above with ‘Because parliament says’. We need to know which parliament, and whether it has the power to impose obligations on its citizens. To the question ‘Why do I need a Materials Safety Data Sheet for that dangerous chemical in the workplace?’, for example, the answer may be ‘Because the Work Health and Safety Regulation 2011 (NSW) cl 330 says so’. Why should a person do what the Regulations say? These instruments are made under authority given by an Act of the New South Wales Parliament. Why should a person do what the New South Wales Parliament says? The answer is: because the Constitution of Australia gives the New South Wales Parliament authority to make valid laws in that way. (As we will see in Chapter 7, even though we have now moved to a substantially ‘harmonised’ workplace safety regime in Australia, it is still based on individual statutes passed by each separate state.) The way in which authority is given is not immediately obvious from the terms of the Australian Constitution. You can search through ss 1–128 and find no reference to ‘workplace health and safety’ as a matter on which New South Wales may legislate. So how does the process work? [page 18]

Structure of Australian Constitution 1.25 Consider the table of contents for the Australian Constitution (the Constitution), reproduced in Appendix 1 at the end of this book. As discussed in 1.22, the Constitution is itself a part of an Act of the United Kingdom Parliament. The clauses of that Act are called the ‘covering clauses’. In this book, we will not discuss those clauses, but rather the Constitution itself. It will help you find your way around the Constitution if you notice that it is divided up, like this book, into ‘Chapters’. In framing the document, a conscious decision was made to group related provisions together. This is a common technique that lawyers use in drafting documents, as you will see when we look at legislation in general. For the moment, simply note the topics of the chapters. Chapter I concerns the parliament — the Federal Parliament — of the new entity called the Commonwealth of Australia, which this document created. Before this, there were six separate colonies, each, to a large extent, self-governing, with their own parliaments and their own constitutions. Now there was the new Commonwealth of Australia, which had its own parliament. As a result, the chapter that established the Federal Parliament is by far the longest: 60 sections out of a total of 128. Chapter II is titled ‘The Executive Government’ (10 sections) and Chapter III ‘The Judicature’. These are the three foundational chapters of the Constitution, because they establish the principle of the ‘separation of powers’, discussed above at 1.17, in the Australian legal system. It is interesting that this structure is copied from the Constitution of the United States of America, but in fact puts into effect a system of government that is almost identical to the United Kingdom’s Westminster system. Section 64 is the pivotal provision in this regard. Even though it sets out the members of the Executive Council — the people who run the bureaucracy — the provision

states that those ministers of state must also be members of the Federal Parliament. As mentioned above at 1.18, the separation of powers imposes strict standards on the treatment of the judicial power. The High Court has interpreted Chapter III of the Constitution to mean that only courts are allowed to exercise the judicial power of the Commonwealth, not administrative bodies. We will come back to this topic when we look at the court system. For now, look at the remaining chapters of the Constitution: Chapter IV covers ‘Finance and Trade’, which is obviously a crucial topic for a new country. Chapter V deals with ‘The States’; since the new Federal Parliament had been established, a new relationship with the former colonies needed to be spelled out. Chapter V attempts to deal with a situation in which more than one parliament has authority over the same geographical area. Chapter VI, ‘New States’, has never been used, and is followed by Chapter VII, ‘Miscellaneous’. Finally, s 128 stands alone in Chapter VIII, ‘Alteration of the Constitution’, being the provision that allows amendment of the Constitution. As the basic foundational document of the Australian legal system, the Constitution cannot be amended by the Federal Parliament alone — it must be amended by a referendum of the people of Australia as a whole. To protect the rights of the smaller states, not [page 19] only must an absolute majority of voters in Australia support a proposed change, but also a majority of the voters in a majority of the states. This, of course, is the provision that was used in 1999 when the country voted on the issue of whether Australia should become a republic. As the failure of that vote demonstrated, it is difficult to make any major change to the Constitution when there is not overall agreement to the change in the community.

Stop and Think 1.3 Suppose you have been injured as a result of your employer’s failure to warn you that a particular chemical in your workplace in New South Wales was dangerous. You have discovered that your employer was in breach of a state law, but you want to trace all the leads back and find out whether this really is a piece of legislation that the New South Wales Parliament can pass. Where would you look for this information? Jot down your answer using the information provided above, and the extracts from the Constitution in Appendix 2 at the end of this book, before reading the answer at the end of this chapter!

1.26 The structure of the Constitution provides specific powers to the Federal Parliament, in s 51, but leaves the residue with the states. However, s 107 says that unless a power is exclusively vested in the Federal Parliament, it is a ‘concurrent’ power. This means that a state may also legislate on the same subject matter as the Commonwealth. We look first to s 52 for the exclusive powers. There are one or two others, the most significant being s 90, which says that the power to impose customs and excise duties is exclusive to the Federal Parliament. Neither of these powers excludes workplace health and safety issues from the states. Then we look to s 51. Is there a power dealing with WHS which might be a power that both the Commonwealth and a state could concurrently exercise? If there was, and if Commonwealth and state legislation clashed in any of these matters, s 109 would resolve any conflict between the two in favour of the Commonwealth — Commonwealth law will prevail. 1.27

When we come to specifically look at WHS legislation in

Australia in this book, we will look at the possibilities for the Commonwealth to use its powers, including its power over ‘external affairs’ or the ‘corporations’ power, to set up a uniform national legislative regime. Unless that happens, however, or unless there is an agreement between the Commonwealth and all the states to ‘refer’ a power to the Commonwealth under s 51(xxxvii), you can see from the list of powers in s 51 that there is no specific power for the Commonwealth to deal with safety in the workplace. As a result, the matter is presently one for state governments. Consequently, for many years we had nine separate sets of laws, with different requirements. The Productivity Commission gave some estimates of what this [page 20] duplication cost various national firms.23 Pressure for ‘harmonisation’ of Australia’s diverse workplace health and safety laws resulted in two reports (in October 2008 and January 2009) by the National Review into Model Occupational Health and Safety Laws (NRMOHSL), which had been set up by the federal government in 2008.24 These are important documents for the future of WHS legislation in Australia. On 18 May 2009, the Workplace Relations Ministers’ Council announced that the Commonwealth, state and territory governments had reached agreement on a ‘framework’ for reform, in a detailed response to the recommendations of the NRMOHSL.25 The task of developing model workplace health and safety legislation (the Model Law) was given to a newly established body called Safe Work Australia (SWA). It was agreed initially that the new harmonised legislation would commence on 1 January 2012. For various reasons not all jurisdictions have yet enacted the new Act and Regulations. At the time of writing, the legislation

has commenced in seven out of the nine Australian jurisdictions: see 7.16 for more details. One aim of this book is to explain the criminal law (especially in Chapters 7–9) on the basis of the Model Law as implemented in New South Wales. Chapter 7 will flag those areas in which the Model Law has been adopted, with or without changes, to reflect the different political pressures in the various jurisdictions.

‘Dividing up’ the law 1.28 There is one further subject worth mentioning as you start thinking about the law, and that is the way in which lawyers have traditionally divided it up into different subject areas.

Traditional categories — why use them? 1.29 The reason for using categories is to assist a person find the relevant law for their purposes. These descriptions are ones that have been used by textbook writers and encyclopedia editors for many years, and provide a way of taking a particular fact situation and finding the law that applies to that situation.

Public versus private law 1.30 The traditional categories of law are listed in Appendix 3, Figure 3.1 ‘Categories of law’ at the end of this book. [page 21] The first distinction that is usually made is between public and private law. Generally, areas of public law deal with the relationship between private individuals and the government, or between one government and another. Private law concerns

relationships between individuals, where the general community does not have such a direct interest. In Appendix 3 at the end of this book, a brief comment is provided on each category. The list provided is not necessarily complete — other areas could be added, either as separate headings or as sub-headings. One that springs to mind is ‘human rights’, for example. You could regard it as fitting in under constitutional law, if it has to do with whether certain rights exist under the Constitution. But one aspect of it might also be put in a private law area — the anti-discrimination legislation, for example. General features 1.31 There are things we can say about public and private law generally. One is that, in general, the public law area involves matters that are dealt with by the criminal law, since they are regarded of importance to the community generally. In the private law area, most matters are what we have already identified as ‘civil’ law: see 1.4.

Crossing over categories 1.32 Whatever lists and categories we may draw up, most problems of fact will cross over the category lines in real life. Take the example of an industrial accident. If it has occurred because an employer has failed to provide adequate information about the use of certain chemicals, then the employer may be guilty of a crime — legislation in all jurisdictions requires employers to take precautions for the safety of workers. Between a worker and their employer, there may also be a civil action in the tort of negligence if the worker can prove that the employer breached its duty of care. Further, if a union becomes involved after an accident, issues of industrial law may also be raised. In a real-life situation, all these issues will need to be addressed.

But, legally speaking, they are separate issues, and knowing what the categories are that lawyers adopt will help work out what the relevant law is for each issue.

Sources of Australian law 1.33 From where, then, do we get our law in Australia? This is the question we are asking when we look for the sources of Australian law. When we speak about the ‘sources’ of law in Australia, it is important to distinguish the use of the word ‘source’ in two different senses: as ‘history’ and as ‘authority’.26 [page 22]

Source as ‘history’ 1.34 One sense in which ‘source’ is used is as a historical reference. Thus we may ask: What is the source of the law on a particular rule? In other words, when, historically, did the rule become a rule? From what other legal system did the rule originate? Or, did the rule result from a historical incident, or derive from a religious rule, or some other source?

Source as ‘authority’ 1.35 The sorts of questions posed above are useful to ask in some cases. However, as regards authority — that is, which body has the authority to declare that a particular rule is law — we are concerned with the question: What are the authoritative sources of Australian law? To give an example: the Australian Constitution contains a number of provisions that are very similar to provisions in the

United States Constitution. One of them, s 116, is the clause that guarantees freedom of religion. From the records of the debates in the constitutional conventions, we know that the framers of the Australian Constitution had the ‘religion clauses’ of the First Amendment to the United States Constitution in mind when drafting the Australian version. So we could say that the historical source of the guarantee of freedom of religion in s 116 is partly that clause in the United States Constitution. But what if we ask, what is the source of the federal government’s obligation to obey this rule? The answer is not because it is in the United States Constitution. The authoritative source of the government’s obligation to obey this rule lies in the fact that the government is bound to obey the Constitution that established the rule; or, going back further, because the rule was included by the United Kingdom Parliament when it passed the Constitution Act. That is the difference between a historical source question and an authority source question. To put it in another way, the question we are asking here is: What are the ‘authority rules’ in Australia? And the answer to this is that the law in Australia comes from two primary sources: common law, which is a body of law declared and developed by the courts; and statute law, which is legislation specifically approved by parliament or another body approved by parliament. Every binding law in Australia must be traced back to one of these two authority sources. To quote a passage from an old English judgment: If it is law, it will be found in our books. If it is not to be found there, it is not the law … The justification is submitted to the judges, who are to look into the books; and [see] if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.27

[page 23]

Common law and statute 1.36 Common law and statute law are related to each other in complicated and interesting ways. Thus, in theory a statute (a law approved by parliament or by a body delegated by parliament) can always override the common law (case law). But a statute, to be effective, has to be interpreted by a court. And there are some principles of common law, as we will see, which are so deeply rooted in our legal system that courts will bend over backwards to preserve those principles, unless parliament makes it absolutely clear that a statute is intended to override them. In any area of knowledge, there are certain ‘conventions’ or shorthand ways of referring to things that need to be learned. In law, cases and statutes are referred to in particular ways that you need to know. Cases 1.37 Take a case that we will be referring to later: the High Court decision in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. The first point to note is that the case is referred to by the names of the two parties involved (or the two main parties, if more than two are involved), joined by ‘v’, which stands for ‘versus’ (Latin for ‘against’). ‘Stevens v Brodribb Sawmilling Co Pty Ltd’ is the name of the case. Traditionally, all the elements of the name are put in italics. When speaking about the case, rather than writing, ‘and’ is usually substituted for the ‘v’, that is, ‘Stevens and Brodribb’. Usually the name of the person who has come to court looking for the court to take some action comes first in the name of the case. Thus, if this were the first time the case had come before a court, we would know that Stevens was seeking some order against Brodribb. In that case, Stevens would be called the plaintiff and

Brodribb the defendant; the plaintiff has a complaint, and the defendant is defending themselves.28 In fact, this is not the situation in this particular case, which, on appeal, went to the High Court from another court. Often the ‘head note’ in the judgment (preliminary material appearing in the ‘official’ report of the case) will refer to the appellant and the respondent. The appellant is the person who has appealed, and the respondent is responding to the appeal. In this case, there was a previous order in favour of Brodribb, against which Stevens is appealing. There then follows the citation of the case: ‘(1986) 160 CLR 16’. This is the ‘address’ of the case report — in other words, where the case can be found in the library. In this case, it consists of four elements. The first element is the year (1986); the second is the volume number of the series of case reports (160); the third is the name of the case reports (CLR — which stands for Commonwealth Law Reports); and the fourth is the page number on which the report of the case begins. [page 24] 1.38 How do you know what the ‘CLR’ stands for? Basically you need to learn from experience or look it up in a legal reference book. The following table gives the most common abbreviations that will be used in this book:29 Table 1.1:

Abbreviations of selected law reports

Abbreviation

Full title

AC

Appeal Cases

ALJR

Australian Law Journal Reports All England Reports

All ER

Jurisdiction (country, etc) United Kingdom

Australia — Federal United Kingdom

Court House of Lords (or, since July 2009, ‘UK Supreme Court’); Privy Council High Court of Australia House of Lords; Court of Appeal (some single

ALR CLR FCA FCR HCA IR NSWCA

NSWIRComm

NSWLR WLR

Australian Law Reports Commonwealth Law Reports Federal Court of Australia (online) Federal Court Reports High Court of Australia (online) Industrial Reports NSW Supreme Court, Court of Appeal (online) NSW Industrial Relations Commission (online) New South Wales Law Reports Weekly Law Reports

Australia — Federal

judges) High Court; Federal Court; Family Court High Court of Australia

Australia — Federal

Federal Court of Australia

Australia — Federal

Federal Court of Australia

Australia — Federal

High Court of Australia

Various Australian jurisdictions Australia — NSW

Industrial commissions and courts Supreme Court of NSW — Court of Appeal

Australia — NSW

NSW Industrial Relations Commission in Court Session — also called the Industrial Court of NSW30 Supreme Court of NSW

Australia — Federal

Australia — NSW United Kingdom

House of Lords, Court of Appeal

This style of citation is common for law reports all over Australia, and also for English reports. The only major variation is that some publishers of series of reports do not give each separate book of reports a volume number, but instead simply use the year. This will work, of course, where there is only one volume every year; but usually [page 25] with law reports these days, there are often more. In such cases, editors are forced to reintroduce volume numbers, within the year. Some examples are given below: Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87. This case is reported in the English reports titled ‘Appeal Cases’. In 1960,

there was only one volume of these reports. The use of square brackets is a convention used to identify the year as an essential part of the citation. (In a citation such as ‘(1986) 160 CLR 16’ referred to above, the function of the year reference is essentially informative — it saves you having to go the shelf to check the date. But you could find the report by simply relying on the volume number.) R v O’Neill [1979] 2 NSWLR 582. This case was reported in the New South Wales Law Reports; the square brackets tell us that we need to include the year in the citation; the volume number ‘2’ tells us that this was the second volume of the New South Wales Law Reports published for 1979. Another popular form of case citation that you should be aware of has come about through the use of looseleaf law publications. These are large, often black, ring-binders that are designed to accommodate monthly updates to reports, which include the most recent cases. The method of citation used by publishers of such publications usually follows the following example: Hughes v Western Australian Cricket Association (1986) ATPR ¶40725. This case was reported in 1986 in the Australian Trade Practices Reports, and can be found at paragraph 40-725. Looseleaf services often use round brackets without a separate volume number, even if there is more than one volume (binder). 1.39 Finally, a form of citation that is becoming increasingly important is the citation of cases found on online databases. Cases are regularly available online before they are available in printed form. In particular, the Australian Legal Information Institute (Austlii) provides free online versions of cases and legislation from most Australian jurisdictions at , and is a very useful resource. As an example: Liftronic Pty Ltd v Unver [2001] HCA 24 is the online report of a High Court case. The High Court is the final court of appeal in Australia. Since the beginning of 1998, the High Court (like

other Australian courts) has adopted what is called a ‘medium neutral’ system for judgments, in which paragraph numbers are used instead of pages for reference, and the case is designated by the year in square brackets and the initials ‘HCA’ for ‘High Court of Australia’. In this form of citation the ‘24’ tells you that this is the 24th decision handed down by the court in 2001. (We will meet this case again in Chapter 5.) There is an increasing tendency for even official case reports to provide both the online (sometimes called, ‘medium neutral’) citation, as well as a citation to the official printed reports. Table 1.1 above contains citation abbreviations for some of the more commonly used online decisions. [page 26] Statutes 1.40 Acts of Parliament are conventionally referred to in the style of the following example: ‘Work Health and Safety Act 2011 (NSW).’ The name of the Act is given,31 then the year the Act received the Royal Assent, followed by an abbreviation for the jurisdiction whose parliament enacted the law. Within each Act are individual numbered ‘sections’, which can be grouped into Chapters, Parts, Divisions and Subdivisions. References to sections may be abbreviated as, for example, ‘s 19’. (Warning: Never fall into the trap of referring to a part of an Act by the page number taken from a printed copy, as Acts are often reprinted, and page numbers are not a reliable reference. Always use the section number.) Regulations are also divided up in a similar way, into numbered provisions sometimes called ‘regulations’ (for example, ‘reg 8’). Note that an individual part of an overall Regulation in New South Wales is usually called a ‘clause’ (for example, ‘cl 8’; other

jurisdictions may differ). We discuss the difference between Regulations and Acts below.32

Common law 1.41 Let us now look at the area of common law. In this book, ‘common law’ usually means the general body of law developed by courts and judges, in contrast to the laws made by parliament. However, the term can be used in two other contexts: to distinguish the common law system from the civil law system — in other words, as a way of referring to another type of legal system, which developed in Europe, distinct from the English legal system; and to distinguish the common law from equity — a body of rules developed by judges in a distinct court system in England up until the nineteenth century. As you start to read about this area, you might run into these other two uses. However, in this book references to the ‘common law’ are to those rules of law developed and administered by the courts rather than parliament. The main characteristics of the common law are outlined as follows. Court-based, not statute-based 1.42 The common law is derived from the judgments of courts, rather than from specific legislation drawn up by parliament or the executive. So a rule of common law will have come from at least one — and usually a series — of individual cases involving specific problems and specific people. [page 27]

More inductive than deductive 1.43 To use another classification that some may be familiar with from science: the common law rules are inductive, rather than deductive. That is, we start with a number of decisions that have been made on specific situations in particular cases, and then formulate a general rule that will account for those particular decisions. By contrast, a statute formulates a general rule that is then applied to specific situations that may subsequently arise. Foundational law 1.44 Initially, before parliament was acknowledged as a body with real law-making power, it was essential that legal rules be developed by the courts. As this was a time in which some of the very foundational principles of the law were being developed, many of the fundamental principles of the law are contained in case law, not in statutes. In New South Wales, for instance, much of criminal law is made up of common law rules, many of them very old indeed. One of the rules of criminal law, for example, is that generally a person will not be convicted for an act that makes up a crime unless they intended to commit that act. This is expressed in the legal rule of mens rea, which was established by Fowler v Padget (1798) 7 TR 509: The intent and the act both must concur to constitute the crime.

The doctrine of mens rea is, therefore, that the person who is guilty of a crime must usually have a ‘guilty mind’. As you can see, its origin dates far back in the history of our legal system. Another example from the law of ‘negligence’, in the area of ‘civil’ law, is this quote by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected

by my act that I ought reasonably to have them in contemplation as being so affected …

This is an example of a common law rule that is still generally regarded as a crucial part of the modern law of negligence. It is not a statute — it is a statement by a judge. But it has affected countless thousands of people in systems of law that have been influenced by the English common law. Because the common law is so old, it forms the background against which statutes are made. It may be thought to be a good idea to add to, or change, some of the rules of the common law. Parliament can usually do this, but will often leave the basic principles unchanged. The High Court commented on this aspect in its decision in Western Australia v Commonwealth (1995) 128 ALR 1. The court said (at 64): A ‘law of the Commonwealth’ … is necessarily statute law … But the laws of the Commonwealth operate in the milieu of the common law. As Sir Owen Dixon

[page 28] observed: ‘We act every day on the unexpressed assumption that the one common law surrounds us and applies where it has not been superseded by statute.’

In reference to the area of negligence, there is no Act in New South Wales called simply the Negligence Act. Most of the principles of negligence law are well established by decisions of the courts and there is no need for parliament to change them. Sometimes an Act of Parliament may alter the common law. In the area of workers’ compensation, for example, we will see that parliament has chosen to restrict certain common law rights. There are some further general restrictions that have been introduced by the Civil Liability Act 2002 (NSW) but, in general, the legislation in this area assumes that the principles of the

common law are valid, and simply adjusts the rules for certain situations. Shaped by doctrine of ‘precedent’ 1.45 The way in which court decisions become common law is the subject of the doctrine of precedent. What is the doctrine of precedent? When a judge decides a case between two parties, it is obviously best that he or she does not make that decision on the basis of whether or not one of the parties is more ‘likable’ than the other, or dependent on what the judge had for breakfast that morning. The decision should be made on the basis of a general rule of law, which not only applies to the parties in front of the judge on the day, but also to other parties whose situations are similar. The theory is that the rule applied will be based on a previous decision of this or another judge. But because this judge has now made a legal decision, that decision can be the basis for future decisions by other judges. Therefore, the doctrine of precedent is a bit like a chain that continually stretches in length, with each case adding a new link. This doctrine raises many issues, but at its core is a fundamental principle that most people would probably agree with: that like cases should be treated in a like way. We will look more closely at the technical rules of precedent later. Open to change 1.46 Finally, the common law may be changed. First, it may be changed by parliament. If it stays within its constitutional boundaries, parliament is supreme, and can change the law if it does not approve of a court’s decision. Second, the common law may also be changed by the decisions of judges in some situations. The most obvious example is that of a court at the top of the judicial hierarchy that decides that the

common law in regard to certain situations ought to be changed because it is no longer fair or working well. Probably the most famous Australian example in recent years is the decision of the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1. Before we can understand that decision, though, we need to look at the legacy of history. [page 29]

Legacy of history — English common law in Australia 1.47 We have already touched on the influence of English history on the general ‘constitutional’ principles of our legal system: the doctrine of parliamentary supremacy, the rule of law and so forth. We now need to move on to the ‘substantive’ law — not the authority principles, but the rules of behaviour. Historically, where did the substantive rules of law first come from in Australia? Reception of English law 1.48 The answer to that question starts with the ‘reception’ of English law in Australia. Historically, when English subjects settled a country, they brought with them the common law of England, or that part of it which was suitable for the conditions in which they found themselves. If a country was conquered by battle, the laws of the local inhabitants could remain in force so long as these did not conflict with English law. But if it was ‘settled’, and there was no organised opposition, there was no place for local law. This traditional doctrine of English law developed from comments made by an early highly respected law commentator, William Blackstone.33 In this way, the early settlers to Australia brought the English law, both common and statute, with them. After some time,

doubts were expressed regarding the law’s suitability to a penal colony, and it was thought that perhaps different rules should apply. As a result, an Act was passed by the United Kingdom Parliament in an attempt to clarify matters. The Australian Courts Act 1828 (Imp) declared that, at least as from 28 July 1828, ‘all laws and statutes in force in England should be applied in the courts of New South Wales and Van Diemen’s Land so far as they were applicable’. The Australian courts of the time were given the authority to decide whether the legislation was ‘applicable’ or not. Only those laws suited to the condition of the colony were deemed to have been received. 1.49 For the purposes of this book, it is interesting to note that it was not until 1833 (five years after the Australian Courts Act 1828) that the United Kingdom Parliament first passed major industrial safety legislation: Factories Regulation Act 1833 (UK). The Act was too late to be ‘picked up’ and exported by the Australian Courts Act to Australia. More importantly, however, the conditions of the colony in 1828 were unlikely to include many factories! Later it became necessary to pass another Act of the United Kingdom Parliament, the Colonial Laws Validity Act 1865 (Imp), to clarify that local (colonial) legislation was valid even if it conflicted with English legislation on the same topic. The only United Kingdom or Imperial law that would still apply to the Australian colonies was legislation specifically intended to apply to the colonies. This was called ‘paramount’ legislation. General United Kingdom legislation would not apply. After that, and particularly after Federation in 1901, the United Kingdom Parliament adopted the practice of not making legislation for Australia unless specifically asked [page 30]

to do so. But it was only as recently as 1986 that the states, the federal government and the United Kingdom Parliament each passed legislation to formally ensure that the United Kingdom would no longer make law for Australia.34 In conclusion, the result of all this is that the common law in Australia started out as whatever the common law was in England in 1828. Since that time, however, Australian courts have developed a common law that is distinctly Australian. For many years, Australian courts did, almost automatically, follow the decisions of the higher level English courts, but in recent years the High Court of Australia has made it clear that the common law in Australia is developing in its own direction, and that the decisions of English courts are no longer decisive in this regard. Customary law of original inhabitants 1.50 One example of this development of the common law in an Australian direction is the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1, referred to above at 1.46, which clarifies the local law that applied in Australia at the time of European settlement. The accepted doctrine of the public international law was originally that where a place was uninhabited by any other legal system, it was regarded as effectively terra nullius — empty land — and no recognition could be given to the customs of the local people. Indeed, this was the decision of the Privy Council, the highest Imperial court of appeal, in the case of Cooper v Stuart (1889) 14 App Cas 286. The Privy Council described New South Wales as (at 291): … a Colony which consisted of a tract or territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions.

Effectively, this meant that the courts of Australia could not legally recognise any customary or local laws of the original inhabitants of the continent, the Aboriginal people. This position

continued for over a century after that Privy Council decision, until the High Court decision Mabo in 1992. In that judgment, the court took a conscious decision to change the previous common law, and ruled that the Aboriginal people of Australia had rights that should be recognised in some way by Australia’s legal system. 1.51 It is important to understand what the High Court decided, and what it did not. It did not decide that Aboriginal people ‘really’ own the whole continent of Australia, or that any suburban block of land might be the subject of a claim from the country’s traditional owners. The court decided a fairly narrow point, though one that was still significant: that the Aboriginal people did have, and still do have, a recognisable system of rights over land, even though it is not the common law system. The result was that even though the British Crown had ‘ultimate’ (or ‘radical’) sovereignty over the continent of Australia, that sovereignty did not automatically [page 31] extinguish the particular rights over land enjoyed by the original inhabitants, which the court called ‘native title’ rights. Since the time of settlement, the Crown has had the right to extinguish native title by making a grant of the land to someone else (in the same way that the government today has the right to resume anyone’s land for an airport or a freeway). Most of the land in the densely inhabited areas of Australia has been the subject of a Crown grant since 1788, and as a result the native title over that land has been extinguished. But there are still large tracts of Crown land that have not been granted to anyone in particular, and it is over those areas of land that a ‘native title’ claim may be made. The decision in Mabo was a decision about the common law of Australia, but it left some questions remaining about the validity

of grants from the Crown. In addition, the High Court’s decision could obviously not set out what sort of procedures should be followed in the future for determining native title claims. As a result, the federal government, using its power under s 51(xxvi) of the Constitution to make laws ‘with respect to the people of any race, for whom it is deemed necessary to make special laws’, passed the Native Title Act 1993 (Cth) to deal with some of these matters. That Act was subsequently held to be substantially valid: see Western Australia v Commonwealth (1995) 128 ALR 1. Other issues have since arisen, of course, including the High Court’s decision in Wik Peoples v Queensland (1996) 141 ALR 129 (which held that a pastoral lease, of itself, would not necessarily extinguish native title), other significant cases, and subsequent amendments to the legislation, but we will not be dealing with these in this book.

Australian court system 1.52 In a system of common law, there are two key components: the courts, and the rules for working out which previous court decisions apply. We will look first at the courts, starting with the state system, and then more closely at the rules of precedent. First, however, we should define one key term: the word ‘jurisdiction’: The scope of a court’s power to examine and determine facts, interpret and apply the law, make orders and declare judgement … Jurisdiction may be limited by geographic area, the type of parties who appear, the type of relief that can be sought, and the point to be decided.35

State system 1.53 The state court system is the oldest and, in many ways, the most ‘basic’ court system. There are eight state court systems in Australia (including the Australian Capital Territory and the

Northern Territory). In this section, we will look at the New South Wales system; in fact, almost all the other states have a very similar system, while using a few different names for the various courts. The main difference between [page 32] the systems of the smaller states and territories and that of New South Wales is that the smaller states and territories do not need the intermediate District Court level that New South Wales has. Appendix 4, Figure 4.1 ‘New South Wales judicial system’, at the end of the book, illustrates the state’s court system as it is today. For the purposes of this book, it is not necessary to go into its history. At the ‘entry’ level we have the Local Court, which consists of a single magistrate. This court used to be known as the Court of Petty Sessions. It deals with less serious criminal matters (called ‘summary offences’), and with civil matters involving claims for amounts less than $100,000.36 The Local Court sometimes has a review function in relation to low-level administrative decisions, such as whether or not a driver’s licence should be cancelled. More serious criminal offences are called ‘indictable’ offences. The Local Court plays a preliminary role in ‘committal proceedings’ for such offences. The role of these proceedings is to determine whether there is sufficient evidence for the matter to proceed. The final hearing of these offences is in a higher court. Most indictable offences, other than murder and other charges that formerly had the death penalty attached, are heard at the next level in the hierarchy, the District Court. This court is where the most serious crimes are dealt with, which usually involves a jury. Of particular relevance to the topic of workplace health and safety, the Work Health and Safety Act 2011 (NSW) s 229B(1)(b)

provides that prosecutions for the most common offences against that Act may now be commenced in the District Court.37 The District Court also has jurisdiction in civil matters for amounts up to the value of $750,000,38 or a higher amount where both parties agree.39 As well as this original jurisdiction, the District Court has appellate jurisdiction to hear appeals from Local Courts on a number of matters. 1.54 Above this level is the Supreme Court. The Supreme Court has two levels: the divisional level, where single judges exercise original jurisdiction, and the Court of Appeal. At the divisional level, single judges of the Supreme Court hear charges of murder and other serious crimes. They may also deal with civil matters to the value of an [page 33] unlimited amount. The divisional level consists of two major divisions: the Common Law Division and the Equity Division. Work is divided up as set out in Table 1.2.40 Table 1.2:

Supreme Court of New South Wales — divisional jurisdiction

Common Law Division Administrative law, criminal cases, general common law actions for damages

Equity Division Equitable remedies, probate, protective cases, commercial cases, admiralty law

Another court at the same level as the Supreme Court is the Land and Environment Court. This court has been given exclusive jurisdiction over planning and environment issues, including the review of local government decisions. It shares equal status with the Supreme Court, with a single judge of the Supreme Court sitting at the divisional level. The Industrial Court of New South Wales (the Industrial Court), which was first established by the Industrial Relations Act 1991

(NSW), initially existed up until 2 September 1996. Appeals from a single judge of the Industrial Court went to the Full Court of the Industrial Court. The court was given primary jurisdiction under the Occupational Health and Safety Act 1983 (NSW). With the commencement of the Industrial Relations Act 1996 (NSW), the Industrial Court was formally abolished, and its jurisdiction transferred to the ‘Industrial Relations Commission in Court Session’. However, the Industrial Court of New South Wales was then recreated: see Industrial Relations Act 1996 (NSW) s 151A.41 The court previously had an important and mostly exclusive jurisdiction under the former Occupational Health and Safety Act 2000 (NSW). While it seems that the original intention of the New South Wales Government was to remove the Industrial Court’s jurisdiction in workplace safety prosecutions, amendments made to the Work Health and Safety Act 2011 (NSW) (WHS Act) in its passage through parliament have preserved the court’s jurisdiction in cases dealing with the lowest level of offences.42 1.55 Appeals from both divisional levels of the Supreme Court, and from the Land and Environment Court and the District Court, are heard at the appellate level of the Supreme Court. Technically there are two Appeal Courts: the Court of Criminal Appeal for criminal cases, and the Court of Appeal for civil cases. Many of the same judges, however, sit in both appeal courts. [page 34] An internal appeal (not noted on Figure 4.1) from a single judge of the Industrial Court goes to the Full Bench of the Industrial Court. Previously there was no formal ‘appeal’ from the Full Bench of the Industrial Court to the Court of Appeal.43 This situation has now changed; there is now an appeal under s 5ABA of the Criminal Appeal Act 1912 from the Industrial Relations Commission in Court Session to the New South Wales Court of

Criminal Appeal.44 There can also be an appeal in the usual course of events from the District Court to the Court of Appeal for offences committed under the WHS Act. On appeal, the Appeal Court usually has to decide whether the law was properly interpreted and, except in very unusual cases, will not re-hear the questions of fact that the lower court decided. The justification for this is that litigants and witnesses should not be put to the trouble and expense of proving issues of fact twice. From the Court of Appeal in the Supreme Court of New South Wales, a dissatisfied litigant has only one course of action: an appeal to the High Court of Australia. Section 73(ii) of the Constitution provides: The High Court shall have jurisdiction … to hear and determine appeals from all judgments, decrees, orders and sentences … of the Supreme Court of any State …

It is important to note that this avenue of appeal exists whether or not the question of law involved is in any way a ‘federal’ matter; the High Court is the final court of appeal for Australia, on state or federal law. However, because of the great number of potential appeals, in recent years the High Court has introduced a system of ‘special leave’. A party who wants to appeal to the High Court from a state Supreme Court must first apply to the High Court for ‘special leave’ to appeal. For this to be granted, the case must involve an important question of law or a potentially serious miscarriage of justice. In Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531, an attempt was made to challenge the New South Wales law that excluded an appeal from the Industrial Court to the New South Wales Court of Appeal, on the basis that the Australian Constitution invests the High Court with appellate jurisdiction from all judgments of ‘the Supreme Court of any State’ under s 73(ii). The argument was made that the Industrial Court, being a ‘superior court of record’, should

[page 35] be treated as equivalent to the Supreme Court, and hence that it was illegitimate for the New South Wales Parliament to cut off an avenue of appeal from the Industrial Court that could lead to the High Court. The argument was not considered in detail by the High Court, however, which held (at [49]) that it was not necessary to resolve the issue (as the appellant was successful on other grounds.) Given the fact that the Industrial Court still retains jurisdiction to hear some workplace safety offences, it may be that the matter will be raised in the future. However, given the limited nature of that jurisdiction, it is unlikely that there will be many WHS cases decided by the Industrial Court, so the scope for such appeals may be very limited.

Federal system 1.56 We will now look at the federal system, illustrated in Figure 4.2 in Appendix 4, starting at the top and working down. When the High Court of Australia was set up in 1903, it was not only given the role of the final appeal court on law generally, but a number of other roles in relation to the new federal system. The power of the court to hear matters arising out of the federal system, or out of powers specifically given to the federal government, is called ‘federal jurisdiction’. The main provisions of the Australian Constitution that deal with federal jurisdiction are ss 73, 75 and 76. Federal jurisdiction can briefly be summarised as: appellate jurisdiction — appeals from single judges of the High Court and other courts exercising original federal jurisdiction (s 73); and original jurisdiction: – treaties and diplomatic cases (s 75(i), (ii));

– – – – – – –

suits involving the Commonwealth as a party (s 75(iii)); suits between states or residents of different states (s 75(iv)); orders against Commonwealth officials (s 75(iv)); matters involving the interpretation of the Constitution (s 76(i)); matters arising under a federal law (s 76(ii)); admiralty matters (s 76(iii)); and conflict of state laws (s 76(iv)).

Note that not all these matters are equally important. Some, however, have proved to be so wide-ranging that it has become impossible for the High Court to deal with them all. The court increasingly sees its main role as that of a final appellate court, and as the interpreter of the Constitution. As a result two courses of action were adopted, which were authorised by s 77 of the Constitution. 1.57 First, the majority approach for the first part of the twentieth century was to ‘invest’ existing state courts with federal jurisdiction. Thus state courts could deal with matters arising under federal law. This was particularly important when the powers and responsibilities of the Federal Parliament were more limited. As time went on, however, it became clear that it was necessary to establish a separate set of courts to administer certain areas of federal law. This second course of action became critical in the 1970s when the then Labor Government began flexing [page 36] the Commonwealth’s legislative muscles in various new areas, such as in a revision of family law and the introduction of new trade practices legislation.

These two developments led to the situation we have today, which is illustrated in Figure 4.2 in Appendix 4 at the end of the book. There are now three specific federal courts: the Family Court of Australia (established first, in 1976); the Federal Court of Australia (established in 1977); and the Federal Circuit Court of Australia (previously called the ‘Federal Magistrates Court’), which came into existence in 2000.45 Each has a slightly different ‘jurisdiction’. 1.58 The Family Court, as its name implies, deals with family law disputes — divorce, custody, access, maintenance and property disputes arising out of marriage breakdown.46 This has been a matter of exclusive federal law since 1975. The Federal Court has been invested with federal jurisdiction in a number of often unrelated areas: for example, bankruptcy, trade practices law, administrative law, admiralty law, company law, taxation law and intellectual property law (dealing with trade marks, copyright, etc). The Industrial Division of the Federal Court deals with the interpretation, and the enforcement, of industrial awards made by a separate body called the Industrial Relations Commission, and other matters relating to the federal industrial relations system. The Federal Circuit Court deals with some family law matters (for example, divorce and property disputes), and a number of other general ‘federal’ matters, such as consumer protection and bankruptcy matters.47 Each of the federal ‘superior’ courts has a Full Court that hears appeals, and an original jurisdiction that is exercised by single judges. In addition, the single judges may hear appeals from other courts or tribunals. This ‘tribunals’ category also includes some state courts that exercise federal jurisdiction. For example, in the family law area, a state Local Court (magistrate) may hear an application for maintenance under the Family Law Act 1975 (Cth), or a property dispute between spouses for property worth less than $20,000.48 An appeal from a state magistrate’s order will lie either to a single judge of the Family Court or to the Full Court.

One unusual aspect of the Federal Circuit Court is that in order to avoid one layer of possible appeals, there is an avenue of appeal from a federal Circuit Court Judge directly to the Full Court of either the Family Court or the Federal Court. But the law provides that a single judge may exercise the appellate jurisdiction of those Full Courts if the court so determines. That means that effectively there is only one layer of appeal [page 37] between a federal Circuit Court Judge and the High Court; and the High Court will presumably have to grant special leave for appeals there. 1.59 With the establishment of these specific federal courts, and the expansion of law in recent decades, possible jurisdictional conflicts between state and federal courts have been a major issue. There was an attempt to address this problem in a cooperative way in 1987 through a ‘cross-vesting’ scheme, whereby the various state and federal courts were given the power to deal incidentally with matters that may not be central to their jurisdiction, but where referral to another court would involve wasteful delay and expenditure. To the surprise of most lawyers in Australia, however, in 1999 the High Court struck down the legislation as invalid: see Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 163 ALR 270 (Wakim). The court, by a 6:1 majority (Kirby J dissenting), did so on the basis that Ch III of the Australian Constitution exhaustively defines the jurisdiction of federal courts. While it specifically allows federal jurisdiction to be conferred on state courts, Ch III does not specifically allow state jurisdiction to be conferred on federal courts. As McHugh J put it in Wakim (at [59]): By granting power to the Parliament of the Commonwealth to create federal courts and by expressly stating the matters in respect of which the Parliament may confer

jurisdiction on those courts, Ch III impliedly forbids the conferring of any other jurisdiction on those courts by the Commonwealth or the States.

This means that the Federal Court and the Family Court cannot hear cases under state law, even if both the parties (and the federal and state governments) wish it. The only exception is the doctrine of ‘accrued jurisdiction’, which has been preserved by the High Court. McHugh J explained the essence of that doctrine in this way in Wakim (at [71]): If the substratum of fact which gives rise to a matter in federal jurisdiction cannot be effectively disposed of without the application of State law, the issues of State law are determined in the exercise of federal jurisdiction.49

That is, where there is clearly a matter of federal law that is tied up together with a matter of state law, the federal court can deal with the state law issue. But determining when two matters are so closely connected that they can both be dealt with by a federal court is often a difficult task.50 [page 38] 1.60 A number of cases flowing from Wakim revealed major problems with the way in which the regulation of corporations had been set up in Australia.51 The result of this was an agreement between the Commonwealth and the states to what is called a constitutional ‘reference of powers’. This is a procedure under s 51(xxxvii) of the Australian Constitution whereby a state can refer powers to the Commonwealth over an area that has been a state matter. The New South Wales Parliament, for example, to give effect to this agreement, passed the Corporations (Commonwealth Powers) Act 2001 (NSW).52 The Federal Parliament then enacted the Corporations Act 2001 (Cth), which relies on the reference of powers to regulate all aspects of company law across Australia. While this does at least provide some certainty in the corporate law area, it does not resolve the general problem caused by the

need to choose a federal or state court to commence litigation. If you are involved in something that has elements of state and federal law, see a lawyer early to make sure you go to the right court.

Specialist tribunals 1.61 As can be seen from the previous discussion, there are courts of ‘general’ jurisdiction, which are unfettered in the sort of matters they may hear, and also more ‘specialist’ courts. The Family Court and the Federal Court are each, in their own way, specialist courts, although both are also designated ‘superior courts of record’. Below the level of the courts, however, there are various other decision-making bodies that affect many Australians. In the federal sphere, there are bodies such as the Social Security Review Tribunal and the Administrative Appeals Tribunal. These tribunals are not technically courts, but they review decisions of the bureaucracy in ways that can affect many people. In the state area, the main such body in New South Wales, for example, is the New South Wales Civil and Administrative Tribunal (previously called the ‘Administrative Decisions Tribunal’.)

Separation of powers in federal court system 1.62 To complete the picture of the Australian court system, there is one distinctive feature of the federal system that flows directly from the structure of the Australian Constitution. We have seen already that the doctrine of ‘separation of powers’ is a doctrine inherent in the Constitution. The High Court has held that in relation to the judicial power of the Commonwealth, this separation of powers implies two things: 1.

A federal court (that is, a court set up under the Commonwealth Constitution) may not be given non-judicial

2.

powers; it may only exercise judicial powers. Only a federal court may exercise the judicial power of the Commonwealth. [page 39]

The result of this reasoning (first spelled out in R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (Boilermakers’ case)) was that the Commonwealth could not establish the one body to both make industrial awards (a power similar to a legislative power) and enforce those awards (a judicial power). That this is not a doctrine simply of historical relevance can be seen in the fact that in the 1990s this principle was applied in order to invalidate Commonwealth legislation in Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1. Essentially, the Commonwealth had vested in the Human Rights and Equal Opportunities Commission (HREOC) a number of functions that the High Court argued were judicial functions. Probably the most important of these functions was HREOC’s power to register its orders in the Federal Court and then to have them treated as orders of the Federal Court. The High Court held that this procedure was invalid.53 1.63 The courts are keen to protect this principle of the separation of judicial power from other powers. This is the reason that the New South Wales legislation relating to Mr Kable mentioned previously in 1.21 was eventually struck down: see Kable v Director of Public Prosecutions (DPP) (NSW) (1996) 138 ALR 577. The High Court held that state legislation that required the Supreme Court of New South Wales to sentence someone on the basis of the possibility of a person’s future offending, gave a nonjudicial power to the court. In doing so it undermined the status of the New South Wales Supreme Court as a part of the federal judicial system.

For a state decision based on the same principles see Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249, where the Queensland Court of Appeal struck down a provision of the legislation in question which empowered a court to dispose of someone’s property without giving them notice of the hearing. On the other hand, in Fardon v Attorney-General (Qld) [2004] HCA 46, the High Court held that legislation which allowed the Queensland Supreme Court to order that a convicted sex offender (who was deemed likely to re-offend) remain in prison indefinitely subject to periodic judicial review, did not contravene the principles of separation of powers. Kable was distinguished, as the legislation under consideration in that case related to one specific person, rather than being generally applicable. Other High Court challenges based on the Kable principle were generally not successful for some years: see, for example, K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4. However, in International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49, a 4:3 majority of the court struck down a New South Wales law which allowed the confiscation of assets of crime without a proper hearing being given to the owner, as ‘repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia’: at [98]. Since then there have been some further successful challenges to state laws based on the Kable principle: see South Australia v Totani [2010] HCA 39; Wainohu v New South Wales [2011] HCA 24; but there have also been challenges which have failed: see, for example, AttorneyGeneral (NT) v Emmerson [2014] HCA 13. [page 40] In Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345 (Powercoal), the claim was made that it was contrary to Ch III of the Australian Constitution for the Industrial Relations Commission of New South Wales to hold both

judicial and arbitral powers. The claim was rejected, the Court of Appeal holding that before a Kable-type challenge could succeed it must be shown that the ‘institutional integrity’ of the body as a court had somehow been impaired. A simple mixture of some judicial and non-judicial functions in a state court would not of itself make that court in breach of Ch III principles. As Spigelman CJ stated in Powercoal (at [48]): Accepting, as Callinan and Heydon JJ said in Fardon, that the test of whether Chapter III would be infringed if the State Act were a Commonwealth Act is a useful one, the dominant purpose reasoning in Boilermakers is not, in my opinion, an analysis which impinges upon the institutional integrity of the Commission as a court. The strict test for the separation of powers applied in Boilermakers is derived from the terms and structure of the Commonwealth Constitution. … A conclusion that institutional integrity has been impaired requires incompatibility of a fundamental character. The dominant purpose reasoning in Boilermakers does not, in my opinion, involve incompatibility of such a character. The mere fact that powers are not strictly separated does not impair the institutional integrity of the court. Something considerably more is required. There is nothing more here.

In Chevalley v Industrial Court of New South Wales [2011] NSWCA 357, the New South Wales Court of Appeal was considering a constitutional challenge to the validity of s 26 of the former Occupational Health and Safety Act 2000 (NSW) on the basis of Kable principles. The submission was made that s 26 illegitimately ‘deemed’ that a company officer was guilty without allowing them any defences.54 The court rejected this interpretation of the legislation, finding that there were clear defences contained within s 26 which could have been invoked by officers. Bathurst CJ commented (at [78]–[79]): In these circumstances it is incorrect to say that the effect of the legislation is to require the court to presume the guilt of the defendant and to deprive it of the power to adjudicate on such guilt. As Spigelman CJ pointed out in Powercoal Pty Limited v Industrial Commission of New South Wales supra at [109]–[111], the provisions are similar to those considered in Hookham v The Queen [1994] HCA 52; (1994) 181 CLR 450; they are designed to achieve the object of the Act by punishing persons complicit in the contravention. Having regard to the fact that the jurisdiction conferred on the court includes the determination of the question of whether there was a contravention and of matters relevant to complicity, the legislation does not require a court to exercise judicial power in a manner inconsistent with its nature.

It follows that s 26 of the Act is not invalid.

[page 41] The High Court refused special leave to appeal this decision: see Chevalley v Inspector Rodney Morrison [2012] HCATrans 31.

General principles of doctrine of precedent 1.64 As outlined above (see 1.52), the common law system requires two essential elements: courts with the power to decide cases, and rules for deciding those cases. Following this discussion of the court system, the remainder of this chapter will examine the rules the courts use to decide which other court decisions they should follow. Note, however, that this discussion does not concern the rules of behaviour that are decided in the cases — who owes a duty to whom, etc. Those specific rules will be covered later in this book. In this topic of ‘Precedent’ we are looking at ‘authority rules’ — rules that judges use to choose the right behaviour rule. In other words: if the common law is made by the decisions in cases, in making a decision in a new case how does a judge know which old cases they should pay attention to in order to decide the new case? Stare decisis 1.65 The fundamental principle of the classical doctrine of precedent is expressed in the Latin expression stare decisis (‘the decision stands’). If a case is to be decided today that is identical in its relevant facts to a previous case that is binding on the judge, then the previous decision will ‘stand’, and it will be followed. Put simply, ‘judges should stand by previous decisions’.55 The benefits of the doctrine of stare decisis are usually expressed

as follows: it accords with the general notion of justice that ‘like cases should be treated in a like manner’; it allows people to predict the effect of the law on proposed future behaviour, and to structure their affairs accordingly; it saves every judge from having to ‘reinvent the wheel’ when a difficult but recurring issue presents itself; and it furthers the rule of law as opposed to the arbitrary decision of individual judges.56 What might be called the ‘classical’ doctrine of precedent took some time to develop, but it was well established by the second half of the nineteenth century. However, the doctrine does raise some tensions. For example, in general it is obviously desirable that decisions are predictable and that litigants can rely on wellestablished principles of law. But suppose a decision has been made through faulty reasoning, or clearly has bad results. [page 42] To resolve this tension the doctrine developed that it was the role of the court primarily to expound what the law is at the time of its decision, not to say what the law should be. When faced with difficult or unjust cases, judges were reassured by the knowledge that parliament could always change the law if it disagreed with the court’s ruling. 1.66 The development of the doctrine of precedent went hand in hand with the increase in the availability of law reports. For many years the only law reports were those compiled by individual barristers or judges, who would publish, under their own names, the cases that interested them. In 1865 the first series of ‘official’ or ‘authorised’ reports was published. These were reports of cases, which were checked by the judges involved and

thus published with their approval. This development meant that the courts were able to rely on the accuracy of reports, and were all the more ready to follow previously reported decisions. Ratio decidendi and obiter dicta 1.67 The question then arises: what are the elements of a previous case that a later judge should follow? After all, there will hardly be any instances in which the facts in two cases are precisely identical. The rule that evolved was that subsequent judges were to be bound by the legal reason for the decision. This came to be known as the ratio decidendi. One commonly accepted definition of the ratio decidendi is: … any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion having regard to the line of reasoning adopted by him …57

The ratio is contrasted with a passing comment that a judge might make on some other matter — a comment that is not strictly essential to the final decision made. This ‘comment in passing’ is called an obiter dictum. If a remark can be classified as obiter, it is not binding on future judges; although if the remark is made by a judge of high repute it might be influential in shaping later decisions.58 While the distinction is fairly clear in theory it can be hard to apply in practice — and perhaps that is why judges regard it as a good theory! The doctrine allows some leeway to a judge who wants to avoid applying a previous decision. 1.68 One of the problems in applying the theory is identifying exactly what the ratio of a particular case is. How broadly do we define the rule? The classic example is the law of negligence as it developed after Donoghue v Stevenson [1932] AC 562. The facts [page 43]

of that case (which we will consider in more detail in Chapter 4) were that ginger beer in an opaque glass bottle was purchased by a friend on behalf of Mrs Donoghue, who drank it until she discovered a decomposing snail at the bottom of the bottle. The House of Lords on appeal held that the manufacturer of the ginger beer owed a duty of care to purchasers not to allow contamination, and so was liable for damages that the woman suffered.

Stop and Think 1.4 Given the above summary of the facts in Donoghue v Stevenson, write down the various facts involved and try to formulate a possible ratio for the case. The case might be extended, for example, beyond ginger-beer bottles to opaque lemonade or cola bottles; it might be extended to different manufacturers; it might be extended to different classes of people injured; it might be extended to cover different types of injury. Make a table and list the possible ways in which the case might be used as authority for a future case. After you have attempted this exercise, check with the ‘answer’ at the end of this chapter.

As this exercise demonstrates, a wide range of legal principles might be developed from this one decision and the statements that were made by the court. These principles would range from the very narrow (applying, say, only to drink bottle manufacturers who used opaque bottles) to the very broad (applying to anyone who does something that they could foresee might cause damage to someone else). In between there would be possibilities such as restricting the ratio to manufacturers; or restricting the sort of damage to personal injury or disease, as opposed to property damage or economic loss of a more general sort.

This decision has in fact raised those sorts of issues in many subsequent cases. The courts have gradually clarified the principles relating to negligence following Donoghue. Those principles will be discussed in Chapter 4. Binding and persuasive decisions — judicial hierarchy 1.69 There is, however, another aspect of precedent that we need to mention. It is this: that a court is only bound to follow the decisions of courts that are above it and in the same judicial hierarchy. In addition to theoretical justification, this rule has one very major practical justification: a court higher up in the same hierarchy can normally hear an appeal from the lower court, and overturn its decision if it disagrees with it. Therefore a single judge of the Supreme Court of New South Wales ought to follow a previous decision of the New South Wales Court of Appeal, which ought to follow a decision of the High Court. This leaves a number of other situations, however, the result of which is summarised in Table 1.3. [page 44] Table 1.3:

Rules of precedent

How should the court currently making a decision (below) regard an earlier decision of another court (right)? Single Judge of NSW Supreme Court NSW Supreme

Another Single Judge of NSW Supreme Court

NSW Supreme Court, Court of Appeal

High Court of Australia

English Court — Court of Appeal, House of Lords, Supreme Court

Persuasive but not binding

Binding

Binding

Persuasive but not binding

Not binding

May depart from own decisions —

Binding

Persuasive but not binding — Cook v Cook

Nguyen (1990) — see 1.72 below

Court, Court of Appeal

High Court of Australia

Not binding

Not binding

(1986) — see 1.5 above

May depart from own decisions — see, for example, Engineers’ case (1920) — see 1.72 below

Court of Appeal — not binding House of Lords — persuasive but not binding

1.70 In reading the table, choose a court in the left-hand column as the court which is presently making a decision, then choose one of the courts in the top column headings whose previous decisions are being considered. For example, if the question arises as to whether the New South Wales Court of Appeal ought to follow a decision of the United Kingdom Supreme Court, the above table tells you that for the New South Wales court a decision of the United Kingdom Supreme Court is ‘persuasive but not binding’. The use of the word ‘persuasive’ in the table indicates that the court in question is not directly a part of the judicial hierarchy of the current court, but the current court will carefully consider that court’s decisions before departing from them. To take a situation not covered in the table, a Full Court of the Supreme Court of one state, for example, will not be bound by, but will regard as highly persuasive, decisions of the Full Court of the Supreme Court of another state. For a statement of this principle in New South Wales, see Fernando v Commissioner of Police (1995) 36 NSWLR 567; for a case in which the New South Wales Court of Appeal felt obliged not to follow a decision of the South Australian Court of Appeal, see Nonferral (NSW) Pty Ltd v Taufia [1998] NSWSC 49.59 [page 45]

The High Court commented in Farah Constructions Pty Ltd v SayDee Pty Ltd [2007] HCA 22 at [135] on the way in which state courts ought to regard previous decisions of other state courts as follows: Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.1 Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. 1.

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ.

This has been seen as restricting the liberty that state Supreme Courts have to make decisions that would contradict those of other state Supreme Courts.60 1.71 As Table 1.3 shows, the only court in Australia not bound by the decisions of any other court is the High Court. At one stage it was thought that the state Courts of Appeal were also bound by both their own previous decisions and by decisions of the English Court of Appeal or the House of Lords (where there was no conflicting High Court decision). However, decisions by the High Court have clarified that essentially the state Courts of Appeal are only finally bound by High Court decisions. A complication that existed prior to 1986 was that an English court — or rather what could be called a relic of the Imperial court system — the Judicial Committee of the Privy Council, was a possible final Court of Appeal from the state Supreme Courts. Previously available appeals from the High Court itself had been abolished in 1975. In 1986 the simultaneous enactment by the states, the Commonwealth and the United Kingdom of the Australia Acts 1986 finally abolished this external line of appeal. Decisions of the House of Lords and the Privy Council are now persuasive but not binding, and in recent years the High Court has chosen not to follow some significant House of Lords decisions in shaping the law for Australia.61

1.72 Table 1.3 also illustrates that the Supreme Courts in Australia and the High Court have the capacity to depart from their own previous decisions if they so choose. The High Court asserted this power as long ago as 1920 in the Engineers’ case,62 when it abandoned a previous line of its own decisions on the ‘reserved powers’ of the states. [page 46] If the law is going to continue to develop, it is obviously essential that a court that is the final court of appeal should have this power to depart, even if it will only be exercised in rare cases.63 There has been more doubt about the power of Supreme Courts to depart from their own judgments. However, this question was resolved by the decision of the High Court in Nguyen v Nguyen (1990) 169 CLR 245 (Nguyen). In that case the High Court said that state Supreme Courts ought to be free to depart from their own previous decisions. The reasoning was, in part, that since the introduction of the ‘special leave’ requirement for appeals to the High Court, it may be difficult to have a particular issue presented to the High Court. The High Court reaffirmed, however, that the situations in which a court will depart from its own previous decision ought to be very rare.64 A High Court case which involved difficult questions about departing from previous decisions of the court was Zickar v MGH Plastic Industries Pty Ltd (1996) 71 ALJR 32. In a 4:3 decision the majority (Toohey, McHugh, Gummow and Kirby JJ) effectively overruled previous High Court decisions on the issue of what amounts to an ‘injury’ for the purposes of workers’ compensation legislation. Kirby J’s judgment in particular contains an excellent discussion of the difficulty faced by a court confronted by previous decisions that it regards as wrongly decided.65 Avoiding previous decisions

1.73 As outlined above, many aspects of the doctrine of precedent contain areas of ambiguity and uncertainty. A court may thus choose to use a few techniques in order to not follow a previous decision that is seen as either wrong or unjust in the particular fact situation. One clear technique that a court might choose to use is overruling. This option is only open if the court considering the present case is at a superior level in some way to the court that made the previous decision, or if the conditions relating to overruling its own previous decisions are satisfied. Without going to the extent of overruling, however, other techniques may be used to avoid a previous decision. The first technique is that of distinguishing a previous case. Of course, this is a task that a judge must always undertake — to ask whether the relevant facts of the previous case are sufficiently related to the facts of the present case [page 47] for the previous decision to be binding. If they are not, the judge may distinguish the two cases, and choose not to follow the rule set out in the previous case. The second technique, which may be related to the first, is to say that the ratio of the decision in the previous case is not broad enough to cover the situation in the present case. Chapter 8 of Parkinson’s book contains an excellent account of how judges can change the law and yet do so in a way that is consistent with the principles behind the law.66 Effect of overruling 1.74 Finally, what happens when a superior court decides to overrule past judicial authority? The traditional answer is that since the court is not making the law but only adjudicating on the

validity of the law, then a decision that a past case was wrong means that the past case was always wrong. As a result the overruling will in effect be ‘retrospective’ — this means that some decisions that had been made in the past on the assumption that the overruled decision was right, will have been wrongly decided. While this may look like a recipe for chaos, in practice the results are not too disastrous. The prospect of hundreds or thousands of litigants seeking to re-visit their cases is generally avoided by the passage of time — the usual rules of ‘limitation of actions’ will apply, so that even if someone has a good claim they will not normally be able to bring it after a certain period of time (for example, claims in contract and tort are normally barred after six years).67 In some cases where it is possible that there might be large numbers of claims because transactions have been entered into on a wrong basis, parliament might intervene to retrospectively validate the past transactions. (This, for example, is what the Native Title Act 1993 (Cth) does in relation to past actions of governments and others which were made in the belief that native title did not have to be recognised, a belief shown to be wrong by the Mabo (No 2) decision, discussed at 1.50.) 1.75 The suggestion has occasionally been made that these problems could be addressed by the courts exercising a power of ‘prospective overruling’ — that is, the power to declare that the law as it is now found to be, will only be effective for actions done and transactions entered into after the decision. The High Court was faced with such an argument in Ha v New South Wales (1997) 189 CLR 465 (Ha), where it found that the states’ action of collecting tobacco and alcohol taxes had breached the Australian Constitution. In refusing to make an order putting their finding into effect only for the future, the court said (at 503–4): This Court has no power to overrule cases prospectively. A hallmark of the judicial process has long been the making of binding decisions of rights and obligations arising from the operation of the law upon past events or conduct. The adjudication of existing rights and obligations as distinct from the creation of rights and

obligations distinguishes the judicial power from non-judicial power. Prospective overruling is

[page 48] thus inconsistent with judicial power on the simple ground that the new regime that would be ushered in when the overruling took effect would alter existing rights and obligations. If an earlier case is erroneous and it is necessary to overrule it, it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law.68

When faced with a similar question the House of Lords in National Westminster Bank plc v Spectrum Plus Ltd [2005] UKHL 41 agreed that prospective overruling was not the normal rule, but a majority of the House left open the possibility that in some exceptional case in the future it might be appropriate. 1.76 The most recent High Court comment on these issues seems to be that from Kirby J, in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, who (at [342]) noted that ‘prospective overruling has been held to be inconsistent with the Constitution’, citing Ha.69 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 involved the High Court’s ruling that the interpretation of the Occupational Health and Safety Act 1983 (NSW) which had been adopted for some 25 years by the New South Wales Industrial Court was incorrect. It is unclear whether this may mean that those who were convicted under the legislation (and also under the OHS Act 2000 (NSW), as to which a similar interpretation had been adopted since its commencement) may be able to apply for their convictions to be reviewed.70 ______________________________

Answers to Stop and Think questions Note that not all the ‘Stop and Think’ boxes can be given short

answers. However, where possible I have tried to indicate the answers, or directions in which answers might be found. 1.2 1. Is morality rather than law (in our culture). 2. Is custom. 3. Is a possible law — note that it uses the legal word, ‘contract’, which is a clue. It is a behaviour rule. Since it deals with relations between two private people it is likely to be ‘civil’ law, though of course it would be possible for a government to add a criminal penalty as well. [page 49] 4. Is a possible law (in fact, from the New South Wales Work Health and Safety Act 2011). It is a behaviour rule. You can tell it is ‘criminal law’ by the addition of a penalty provision. 5. Is a real law, again from the New South Wales WHS Act. Here it is an ‘authority’ rather than a behaviour rule; it tells us that the Governor has authority to make certain other rules (such as regulations), which will themselves be mostly behaviour rules. 6. Is a rule of law; it comes from a decided case, as the ‘citation’ at the end shows you. It is also an authority rule; it tells you what cases of other courts should (or should not) be binding authority. 1.3 This question is designed to get you to look carefully at the extracts from the Constitution. Since we are interested in state powers, Ch V might be a good place to start. A likely provision is s 107, which says that the state powers continue ‘unless exclusively vested in the Parliament of the Commonwealth’. This means that to work out what powers the states have, we need to know what powers the Commonwealth has, and subtract! We find these back in Ch II, in ss 51–52. Section 52 sets out what

are called the ‘exclusive’ powers of the Commonwealth — things that only the Commonwealth can legislate on. Section 51 sets out the ‘concurrent’ powers — areas where both the Commonwealth and the states are able to make laws. What if there is a clash? Section 109, back in Ch V, resolves any conflict in favour of the federal government. In the area of workplace health and safety there is no exclusive Commonwealth power; in fact, there is not really any obvious concurrent power. So we can conclude that it is likely that a New South Wales law on the topic is valid. We will see later in this book that Commonwealth legislation on the topic might be possible, but the model that has been followed is not that of relying on an exclusive Commonwealth head of power. Instead, in an exercise of ‘co-operative federalism’, a uniform draft has been agreed on by all the jurisdictions and it is hoped that they will all stick reasonably closely to the uniform model. 1.4 You might try listing the possibilities in a table such as this: Person liable

Action for which they are liable

Person who can recover damages

Manufacturer

Allowing a snail into an opaque bottle

Manufacturer

Allowing a snail into an opaque bottle

Manufacturer

Allowing a snail into an opaque bottle

Manufacturer

Allowing some poisonous chemical into a bottle

The person who drinks the ginger beer The person who drinks the ginger beer The person who drinks the ginger beer The person who drinks the ginger beer

Type of injury for which damages can be recovered Gastroenteritis from drinking the snail Psychological damage from shock? Cost of damage to clothing if drink was spilled? Gastroenteritis from drinking poison

[page 50]

This table can be extended, and at each stage there are possible variations. If the process is taken far enough, the result can be expressed as follows: Anyone

Doing something which they can foresee might lead to harm to someone else

Anyone who suffers harm from that action

Any damage they might suffer

As we will see in Chapter 4, the law has almost, if not quite, reached this point; it has certainly moved a long way down the table from Donoghue v Stevenson itself!

Further Reading J Carvan, Understanding the Australian Legal System, 7th ed, Lawbook Co, Pyrmont, 2014. R Chisholm and G Nettheim, Understanding Law: An Introduction to Australia’s Legal System, 8th ed, LexisNexis Butterworths, Sydney, 2012. C Cook, R Creyke, R Geddes and D Hamer, with T Taylor, Laying Down the Law, 9th ed, LexisNexis Butterworths, Sydney, 2014. D Derham, F Maher and L Waller, An Introduction to Law, 8th ed, LBC Information Services, Pyrmont, 2000. C Enright, Studying Law, 5th ed, Federation Press, Sydney, 1995. S A Frazer, How to Study Law, 2nd ed, Law Book Co, Sydney, 1997. G Heilbronn, P Latimer, J Neilsen and T Pagone, Introducing the Law, 7th ed, CCH, North Ryde, 2008. R A Hughes, G W G Leane and A Clarke, Australian Legal

Institutions: Principles, Structure and Organisation, 2nd ed, Lawbook Co, Pyrmont, 2003. M K Meek, The Australian Legal System, LBC ‘Nutshell’, 4th ed, LBC Information Services, North Ryde, 2008. J Miller, Getting Into Law, LexisNexis Butterworths, Sydney, 2002. P Parkinson, Tradition and Change in Australian Law, 5th ed, Lawbook Co, Pyrmont, 2013. M Sanson and T Anthony, Connecting with Law, 3rd ed, Oxford University Press, South Melbourne, 2014. D K Srivastava, T Deklin and P Singh, Introduction to Australian Law, LBC Information Services, Sydney, 1996. P Vines, Law and Justice in Australia: Foundations of the Legal System, 3rd ed, Oxford University Press, South Melbourne, 2013.

1.

M Meek, The Australian Legal System, 2nd ed, Law Book Co, Sydney, 1994, p 1.

2.

D K Srivastava, T Deklin and P Singh, Introduction to Australian Law, LBC Information Services, Sydney, 1996, pp 3–5. R Chisholm and G Nettheim, Understanding Law: An Introduction to Australia’s Legal System, 7th ed, LexisNexis Butterworths, Sydney, 2007, pp 1, 11.

3. 4. 5. 6.

7.

T Mann (ed), Australian Law Dictionary, Oxford University Press, South Melbourne, 2010, p 343. J Bentham (1748–1832), as quoted in G N Heilbron et al, Introducing the Law, 7th ed, CCH, North Ryde, 2008, p 30. At various points through the book, I will ask a ‘stop and think’ question to allow you to pause and think more deeply on a point or topic we have been considering. You might find it helpful to have a notebook handy (or a text file on your mobile phone or other electronic device) to jot down some responses before continuing. My aim is to facilitate the process of learning by assisting you to engage directly with the material. At the end of the chapter, you will find my comments on these ‘stop and think’ questions. You will, of course, get the most benefit from the exercise by attempting them yourself before looking at my ‘answers’. See P Parkinson, Tradition and Change in Australian Law, 5th ed, Lawbook Co, Pyrmont, 2013, p 23, for this list and a very helpful insight into the role of law in

Western society. 8. 9.

P Parkinson, Tradition and Change in Australian Law, note 7 above, p 26 P Parkinson, Tradition and Change in Australian Law, note 7 above, p 28.

10.

See National Review Into Model Occupational Health And Safety Laws: First Report (the NRMOHSL First Report), October 2008, at [3.2], referring to the Australian Safety and Compensation Council (ASCC) study, Work-related Traumatic Injury Fatalities, 2005–2006 (Australian Government, 2008). But note that this would not include those people who die as a result of a work-related disease. The two reports of the National Review are available at . Chapter 2 of the Standing Committee’s Final Report of 26 November 1998 contains a summary of other statistical information drawn from workers’ compensation statistics. While these official figures may understate the problem, even on this data in 1996–97 there were 173 deaths from employment injuries in New South Wales alone: see New South Wales Legislative Council Standing Committee on Law and Justice’s Report on the Inquiry into Workplace Safety — Interim Report (Report No 8, December 1997) at [2.1.2].

11.

12. 13.

14.

15.

Industry Commission, Work, Health and Safety: Inquiry into Occupational Health and Safety, Report No 47, AGPS, Canberra, 1995, Vol 1, pp xviii–xix (Overview). Productivity Commission, National Workers’ Compensation and Occupational Health and Safety Frameworks, March 2004, at [3.1], available in full at (accessed 15 March 2012). See Safe Work Australia, Key Work Health and Safety Statistics Booklet Australia 2015, available at at ‘Statistics’ then ‘Key Statistics’ (accessed 19 March 2016). See also in recent years the report of the Cole Royal Commission into the Building and Construction Industry, especially Ch 6 on the occupational health and safety issues in the industry.

16. 17.

Parkinson, note 7 above. A V Dicey, Introduction to the Study of the Law of the Constitution (1885), quoted in P Parkinson, note 7 above, p 105.

18.

See the citation of this passage by Gummow and Hayne JJ in Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 at [89]. The implications of this area of law for workplace safety will be discussed in Chapter 12.

19. 20.

21.

Another example of the limits of the power of the executive government was the so-called ‘Malaysian solution’ to the placement of asylum seekers that was favoured by the then Labor Government, which was overturned in the High Court as contrary to relevant legislation: see Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32. Although in recent years, with its accession to the European Union (EU), it could be said that even in legal theory the United Kingdom Parliament is not completely sovereign. A number of EU laws and regulations can override the decisions of the United Kingdom Parliament today. In theory, however, the United Kingdom Parliament could choose to withdraw from the EU, and in that sense it still has

ultimate sovereign power. At the time of writing the United Kingdom Government has committed to hold a referendum on the issue of withdrawing from the EU later in 2016. 22. 23.

Parkinson, note 7 above. See Productivity Commission, National Workers’ Compensation and Occupational Health and Safety Frameworks, Report No 27, Canberra, March 2004, p xxvi.

24.

National Review into Model Occupational Health and Safety Laws, First Report (to the Workplace Relations Ministers Council) (October 2008); Second Report (January 2009), available online at (accessed 19 March 2016). The response document, entitled WRMC 81 Meeting Outcomes: WRMC Responses to OHS Review Recommendations (May 2009) can be downloaded from the web address noted above in n 24.

25.

26. 27. 28.

29.

This question is also dealt with in D Derham, F Maher and L Waller, Introduction to Law, 8th ed, LBC Information Services, Pyrmont, 2000, p 25. Entick v Carrington (1765) 19 St Tr 1030 at 1065–6 per Lord Camden CJ. In some United Kingdom cases these days, the person seeking a remedy is called the ‘claimant’ rather than the plaintiff. In this book, we will usually use the word ‘plaintiff’. An expanded table of abbreviations will be found in C Cook, R Creyke, R Geddes and D Hamer, Laying Down the Law, 6th ed, LexisNexis Butterworths, Australia, 2005, App 2, pp 446–8.

30. 31.

See Industrial Relations Act 1996 (NSW) s 151A. This book uses the convention of Roman font for the names of Acts; in other sources, you will sometimes see italicisation used.

32.

The commentary above summarises all you need to know for citation purposes when reading this book, but if you really want to explore the delights of legal referencing further, there is an online guide called the Australian Guide to Legal Citation, 3rd ed, available at (accessed 19 March 2016). W Blackstone, Commentaries on the Laws of England, 9th ed, Vol I, W Strahan and T Caddell, London, 1783.

33. 34. 35.

See the Australia Act 1986 (Cth) s 1. LexisNexis Concise Australian Legal Dictionary, 4th ed, LexisNexis Butterworths, Sydney, 2011, p 330.

36.

See Local Court Act 2007 (NSW) s 30, read with the definition of ‘jurisdictional limit’ in s 29 of the Act. However, if a claim involves ‘damages arising from personal injury or death’, then under s 29(2), the General Division of the court may only deal with claims for less than $60,000. The court may now also constitute a ‘Small Claims Division’, which may only deal with matters worth less than $10,000. This is a major change from the previous Occupational Health and Safety Act 2000 (NSW) s 105, under which prosecutions were heard either by a specialist magistrate in the Local Court or by the Industrial Court of New South Wales: see 1.54.

37.

38.

39. 40.

41. 42.

43.

44.

45.

46.

47. 48.

See District Court Act 1973 (NSW) s 44(1), read with the definition of ‘jurisdictional limit’ in s 4 of that Act. In fact, if a claim arises out of a motor vehicle accident or ‘work injury’, the District Court’s jurisdiction is unlimited: see s 44(1)(d), (d1). District Court Act 1973 (NSW) s 51(2). See Supreme Court New South Wales, About Us, at for more details (accessed 20 March 2016). Inserted by the Industrial Relations Amendment Act 2005 (2005 No 104) Sch 1 item [4], which commenced on 9 December 2005. See the Work Health and Safety Act 2011 (NSW) s 229B(2)(b), which gives the Industrial Court jurisdiction in relation to ‘Category 3’ offences. More details about what this means will be provided in Chapter 9. It should be noted, however, that as a result of the limitation of its jurisdiction, the Industrial Court now consists of only one member, the President, Justice Walton, and it seems likely that, unless the court’s jurisdiction is expanded, few WHS matters will be heard before the court in future. However, the New South Wales Court of Appeal may exercise a general ‘supervisory’ jurisdiction where it is alleged that a lower court, such as the Industrial Court, has acted outside its jurisdiction. But the Industrial Relations Act 1996 (NSW) s 179 requires that an appeal to the Full Bench of the Industrial Court be heard before those supervisory orders can be sought. The High Court decision in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 was a decision on the extent of this general ‘supervisory’ jurisdiction. There is also an appeal available under s 5AG where there has been a conviction and a term of imprisonment imposed under s 32A of the former OHSA 2000, which was an ‘industrial manslaughter’ provision: discussed in Chapter 9. As there were no such convictions before s 32A was repealed, it seems unlikely that there will be any in the future, although in theory it might be possible that an offence committed before 2012 could still be dealt with under this provision. Between 1994 and 1996 there was another federal court: the Industrial Relations Court of Australia. The Workplace Relations and Other Legislation Amendment Act 1996 (Cth) abolished this court and returned its jurisdiction to the Industrial Division of the Federal Court of Australia. A constitutional reference of powers from the states now means that the court can deal with child custody and property disputes arising even outside the context of marriage. For a more detailed discussion, see (accessed 20 March 2016).

49.

See Family Law Act 1975 (Cth) s 46(1). However, if both parties agree, an order for a higher amount may be made. See Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261.

50.

See Australian Securities and Investments Commission (ASIC) v Edensor Nominees Pty

51. 52. 53.

Ltd [2001] HCA 1 for a case involving this ‘accrued jurisdiction’ as a means of solving the problems created by Wakim. The majority of the court in this case held that once the Federal Court had jurisdiction over a dispute (in that case, under s 75(iii) of the Constitution since ASIC was held to represent the Commonwealth), it could exercise all the jurisdiction that a state court could exercise under the relevant legislation. See, for example, Byrnes v R (1999) 164 ALR 520; Bond v R (2000) 169 ALR 607; R v Hughes (2000) 171 ALR 155. Act No 1 of 2001, which commenced on 4 April 2001.

54.

HREOC is now called the Australian Human Rights Commission, but similar constraints apply — the Commission is not allowed to exercise judicial power. For comment on former s 26 and its operation, see 8.19.

55. 56.

Parkinson, note 7 above, p 89. For elaboration see Derham, Maher and Waller, note 26 above, pp 105–6.

57. 58.

R Cross, Precedent in English Law (1977), quoted in P Parkinson, note 7 above, p 91. Recently the High Court expressed a firm view that state courts ought to think very carefully before disagreeing with what it called ‘seriously considered dicta’ that had been handed down by a previous decision of the High Court: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [134].

59.

The facts of this case are considered briefly in Chapter 3. In short, the question was whether a contract of employment entered into by an illegal immigrant contrary to federal migration law was invalid or not. As noted there, the Queensland Supreme Court (Mullins J) has since opted to follow the New South Wales Supreme Court rather than the South Australian decision, in Australia Meat Holdings Pty Ltd v Kazi [2003] QSC 225. For an example see Leerdam v Noori [2009] NSWCA 90 where the New South Wales Court of Appeal felt bound to apply a previous decision of the Victorian Court of Appeal: noted at [119]. However, in Gett v Tabet [2009] NSWCA 76 at [389], the New South Wales court departed from previous decisions (including both one of its own and also a Victorian decision) on the basis that the previous decisions were ‘plainly wrong’. This decision was then upheld on appeal by the High Court (with no reference to the precedential issues) in Tabet v Gett [2010] HCA 12.

60.

61.

62. 63.

64. 65.

See, for example, Bryan v Maloney (1995) 128 ALR 163, where the High Court declined to follow the House of Lords’ decision in Murphy v Brentwood District Council [1991] 1 AC 398 on the liability of a builder for defective premises. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. For one of those rare cases where the High Court decided to overturn one of its own previous decisions, see Beckett v New South Wales [2013] HCA 17, overturning a 1924 decision on a technical aspect of the law governing the tort action for ‘malicious prosecution’. An example of a decision of the New South Wales Court of Appeal departing from one of its own previous decisions can be found in Gett v Tabet [2009] NSWCA 76. Ironically, in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 it was argued that Zickar itself ought to be overturned. By a 6:1 majority the High Court

66. 67.

68.

69.

70.

refused to do so. Gleeson CJ and Kirby J commented (at [47]): ‘Zickar is a recent decision of the Court where, as the report indicates, the Court was specially reconstituted to ensure a decision of the entire Court. The point of principle was there reargued before the entire Court precisely to allow an authoritative decision to be given. It ought not to be reopened, especially in so short a time.’ Parkinson, note 7 above. For an example of a refusal of the court to extend a limitation period simply because the law had been retrospectively changed, see Aiello v Marrickville Council [2005] NSWCA 194. For other discussion of this issue see Roberts v White [1999] NSWCA 12; R v MJR [2002] NSWCCA 129 at 51; Residual Assco Group Ltd v Spalvins [2000] HCA 33; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49. His Honour was in dissent in that decision; he would have followed the House of Lords in Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615 and abolished the immunity of counsel from actions in relation to litigation decisions and hence he, unlike others in the court, needed to comment on whether the immunity should be abolished retrospectively or prospectively. But there seems no doubt that his comments on this point represent the views of the court as a whole, though at that stage the court did not have the benefit of the Spectrum Plus decision. I offer some further comments on this case in my note ‘General Risks or Specific Measures? The High Court Decision in Kirk’ (2010) 23 Australian Journal of Labour Law 230–9, but there is no definitive answer provided.

[page 51]

2 SOURCES OF LAW: STATUTES AND HOW THE COURTS READ THEM

Aims The aims of this chapter are: to help you understand how legislation is created; and to describe how courts shape and interpret the laws made by parliament.

Objectives After working through this chapter, you should be able to: understand how legislation is created; and describe the role that courts play in interpreting that legislation.

Introduction

2.1 In Chapter 1 we saw that the two sources of Australian law are decisions of courts (the common law), and statutes enacted with the authority of parliament. Having outlined the principles of the common law, we now examine how the other source of law — legislation — is created. We will then look at how the courts give effect to statutes. An understanding of these preliminary matters will enable us to then turn to the specifics of workplace health and safety law (WHS) in the rest of the book.

Making legislation: parliamentary process 2.2 How does legislation come about? First, there must be a need for it.

Demand for legislation 2.3 The demand for legislation comes from a number of sources: pressure groups; government reports (for example in the WHS area, the Robens Report, the Williams Report, and the more recent National Review Into Model Occupational Health and Safety Laws, which we will discuss in Chapter 7); public servants; and it may even spring from, or be generated by, court decisions. For example, the decision of the New South Wales [page 52] Court of Appeal in CI & D Manufacturing Pty Ltd v Registrar, Industrial Court of NSW (1996) 40 NSWLR 1, which held that there was no power to appeal against an acquittal under the Occupational Health and Safety Act 1983 (NSW) (OHSA 1983), was not well received by the New South Wales Government. Parliament subsequently inserted a new s 197A into the Industrial Relations Act 1996 (NSW) to specifically allow such an appeal to be heard.1

To give another example, amendments to the Occupational Health and Safety Act 2000 (NSW) (OHSA 2000) dealing with workplace fatalities were driven by a combination of pressure from unions concerned with a lack of accountability for these deaths, and the results of various inquiries into the area.2 Of course, pressure from interest groups can be perceived as positive or negative, depending on whether you share their particular interests. The recent process of ‘harmonisation’ of WHS laws federally has of course been driven by a combination of pressure from employers and other political factors.

Decision to legislate 2.4 Once legislation on a particular topic has been proposed, an official government decision needs to be made as to whether to legislate or not. At this point the Cabinet — the group of government ministers chaired by the Prime Minister (or Premier) — will consider the proposals.

Drafting process 2.5 If Cabinet decides to proceed, then the legislation will need to be drafted (that is, put into formal statutory language). In most jurisdictions these days this task is not left to ordinary public servants, but is entrusted to a specialist Office of Parliamentary Counsel, which has great expertise in effectively wording Cabinet’s ideas.

Bill’s debut 2.6 When the idea has been drafted it becomes a ‘bill’, which is eventually introduced into parliament (see the diagram in Appendix 5 ‘Outline of federal parliamentary procedure: from a bill to an Act’ at the end of the book). It is important to distinguish between government and private members’ bills.

Government bills proceed through various stages on a timetable established by the government and the opposition, and they are ‘sponsored’ by a government minister in each House. Private members’ bills are fairly uncommon, and even more rarely (due to pressure of government business) are they debated. One notable exception was a Commonwealth Act outlawing euthanasia in the territories, which was a private members’ bill that had been allowed [page 53] to proceed on the basis that members on both sides of the House had been given a ‘conscience vote’. Another example of a private members’ bill that went to debate was one authorising the use of human embryonic material in stem cell research. In recent years there have been a number of private member’s bills put forward dealing with the topic of same sex marriage, none of which had, at the time of writing, proceeded to a full vote. 3 A government bill may be introduced into either House of Parliament; this usually depends on which House the relevant ‘sponsoring’ Minister sits in. There are exceptions to this rule for certain federal money bills, which must be introduced into the Lower House: see Commonwealth Constitution s 53.

Parliamentary debate 2.7 The passage of a bill through the federal House of Representatives is outlined in the diagram in Appendix 5 at the end of the book. The ‘second reading’ stage is very important. At that point the Minister’s speech is given, outlining the general purposes of the proposed legislation, and an ‘explanatory memorandum’ is also tabled, giving a clause-by-clause explanation of the bill. As we will

see later (see 2.76), these two processes have become important for the way that courts will interpret the legislation. Normally the legislation passes through one House and then the other. Section 57 of the Constitution contains provisions designed to resolve the situation when there is a ‘deadlock’ between the two Houses of Parliament. If the House passes a bill that the Senate subsequently turns down, it can be resubmitted after three months. If there is a second refusal, the Prime Minister can advise the Governor-General to dissolve both Houses — a ‘double dissolution’. A new election is then held. If, after the election, the Senate again rejects the bill, then a joint sitting of both Houses is held. This situation has only ever occurred once — in 1974.

Governor-General’s decree 2.8 Once the bill has passed both Houses it receives what is known as the Royal Assent; it now becomes an Act. The GovernorGeneral (or the state Governor if it is a state Act) formally gives the assent.

Day of commencement 2.9 While the bill may now have become an Act, it will usually not commence full operation immediately. Because the parliamentary process may be unpredictable, it would often be inconvenient for the administration of government for the Act to commence automatically on Royal Assent. Commencement is usually delayed to give the public service time for preparation: new forms or procedures may need to be put [page 54] into place. In many cases s 2 or s 3 of an Act will specify a date of commencement, or else specify that the Act will commence on

‘Proclamation’. If this is the case, then it is necessary to search the Government Gazettes to determine the commencement date of the Act (or different parts of it). A reprint of the Act will usually specify (in a footnote or endnote) when the Act commenced. (In the AUSTLII database, , for example, the ‘Notes’ button at the top of the page in a legislation extract will usually point to information about commencement.)

Restrictions on parliamentary law-making 2.10 The procedure outlined above is that which is usually followed in making legislation. What, then, are the limits on the power of parliaments to create legislation? As you might expect from the previous discussion on parliamentary supremacy, there are not many limits. However, there are some that affect current Australian parliaments, and one that we should note as a former limit.

Constitutional limits on state parliaments State constitutional limits on state power 2.11 State constitutions contain very few limits on the power of state parliaments. The Constitution of New South Wales, for example, says that the Parliament of New South Wales has power to make laws: … for the peace, welfare and good government of New South Wales in all cases whatsoever.4

It has generally been thought that these words impose no real limits on the power of the state to make laws, other than possibly a territorial limit; that is, there must be some sense in which the law can be said to be for New South Wales, as opposed to simply dealing with matters outside the state. For some time there was

doubt concerning the power of states to make extra-territorial laws (that is, laws which relate to matters occurring outside the state), but those doubts have now been removed by the Australia Act 1986 (UK) s 2(1), which clarifies that a state parliament has: … full power to pass laws for the peace, order and good government of that State that have extra-territorial operation.5

At one stage a suggestion was made in the Supreme Court of New South Wales that a court might have power to rule on whether a particular law fell within the description of a law for ‘peace, welfare or good government’. The then Chief Justice, Sir Laurence [page 55] Street, made the suggestion in Building Construction Employees and Builders’ Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372 (commonly known as the BLF case). That case involved an example of legislation that was obviously designed to overturn a court decision in favour of the BLF, a controversial trade union which at the time was trying to resist industrial deregistration proceedings. However, other judges in the case, particularly Kirby J (who held that for a judge to rule on the question would be for the judge to usurp the role of parliament), did not support Street CJ’s remarks. In a later case, Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, the High Court resoundingly agreed with Kirby J. The court held that a court has no power to review a decision of parliament to legislate on the basis that the legislation is not in the court’s opinion for ‘peace, welfare or good government’.6 The only other limitation on state power from within the state Constitution is the fact that certain provisions of the state Constitution may be ‘entrenched’. That is, the state parliament may not change those provisions without undertaking some

special procedure, such as a referendum. An example is s 7A of the New South Wales Constitution, which requires that a referendum be held if there is a proposal to abolish the Upper House of Parliament. Federal constitutional limits on state power 2.12 Over and above these fairly minor limitations derived from state constitutions, it is very clear, however, that the federal Constitution specifically limits a state’s legislative power. First, there are the specific areas in which the Commonwealth holds powers that are declared to be ‘exclusive’. These powers flow from s 107 of the federal Constitution, which we looked at earlier: see 1.26. Examples of ‘exclusive’ powers are the Federal Parliament’s powers in s 52 with respect to ‘the seat of Government’ (that is, the Australian Capital Territory); places acquired for Commonwealth purposes such as defence force establishments; and Commonwealth public service matters. Section 111 supports s 52 by referring to the exclusive power of the Commonwealth over a territory surrendered by a state (again, the relevant example is the Australian Capital Territory). The only other provision conferring exclusive powers is s 90, which declares that only the Commonwealth may impose customs duties, or set up ‘bounties’ on production or export. Section 90 is the provision that lay behind the decision of the High Court to declare invalid state alcohol, cigarette and petrol taxes in 1997.7 These taxes were then replaced by the GST, which was ‘redistributed’ to the states. [page 56] Second, there are some matters that the federal Constitution specifically ‘withdraws’ as powers of a state, which are: maintaining a military force (s 114);

taxing the property of the Commonwealth (s 114); and coining money or establishing any kind of monetary system (s 115). Third, there are obviously some other actions that states could not take, even though they are not specifically prohibited: for example, grant Australian citizenship to a person. These are the kinds of issues that clearly must be dealt with by a national government.8 The final and most significant area of limitation on state powers is that outlined in s 109. As discussed at 1.26, under s 109, where both the Commonwealth and the states have power to legislate on an area, the Commonwealth legislation will override the state legislation in a case of ‘inconsistency’. Thus, even where a matter is at one point in time a valid matter of state law, the later enactment of a Commonwealth law on the subject may change that situation. Without detailing the many cases that have been decided on s 109, you should be aware that the courts have held that a state statute might be invalid under s 109 in two ways: through direct inconsistency; or through the Federal Parliament ‘covering the field’ of legislation. Direct inconsistency 2.13 1. 2.

Direct inconsistency occurs in at least two ways:

where it is impossible to obey both the Commonwealth law and the state law; or where the state law grants a right which the Commonwealth law takes away, or vice versa.

The classic example of direct inconsistency was the early case of R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23. Commonwealth law prohibited the holding of a state referendum on the same day as a federal election; Queensland law required the

holding of a referendum on that day. Clearly, the Commonwealth law prevailed. An example of the second situation is Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151. A New South Wales industrial order prohibited women from working on a particular type of milling machine. An order of the Commonwealth Arbitration Court permitted women to work on the machines. Theoretically, all employers could have obeyed the law by not employing women. However, that would obviously have been inconsistent with the permission granted under the Commonwealth law. Following is another example from within the specific field of workplace health and safety. Before 1991, s 36 of the Factories, Shops and Industries Act 1962 (NSW) placed [page 57] limits on the weights that could be lifted by women. The Federal Parliament enacted the Sex Discrimination Act 1984 (Cth), s 14 of which provided that discrimination on the basis of gender in the workplace was unlawful. If an employer allowed a female employee to lift a certain weight, it could be in breach of the New South Wales legislation; however, if it had a policy of only allowing male employees to lift that weight, then it would be in breach of the Commonwealth Act. The clash was resolved by a number of temporary exemptions issued by the federal government up until 1991, when New South Wales adopted a national code on manual handling that was gender neutral, and repealed s 36 of the Factories Shops and Industries Act 1962 (NSW).9 Covering the field 2.14 In addition to cases of this kind, it has been held that a state Act may be inconsistent with a Commonwealth Act, even if

there is no direct clash, where the Commonwealth Act evidences the federal government’s intention to ‘cover the field’. For example, the scheme of the Marriage Act 1961 (Cth) as a whole clearly indicates that it is intended to be the Australian law on marriage.10 It would obviously be contrary to this for a particular state to impose an extra period of notice, or blood tests, or some other requirement before parties could be married. It is always possible for the Federal Parliament to spell out whether it intends to ‘cover the field’ or not. When the federal government authorised construction of a third runway at Mascot, it enacted regulations that specifically exempted the runway construction procedure from complying with New South Wales environmental impact legislation. In Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453, the High Court upheld the validity of this provision, saying that it provided evidence of the Commonwealth’s intention to ‘cover the field’. 2.15 However, the Federal Parliament may explicitly declare that it does not intend to occupy the whole field. An example of a provision of this kind can be found in our main area of interest, workplace health and safety. The Federal Parliament enacted legislation that was initially designed to deal with WHS issues for federal employees, pursuant to its power under s 52 of the Australian Constitution. This Act was then called the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth). Section 4 of the Act previously provided that: It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that promotes the occupational health and safety of persons and is capable of operating … concurrently with this Act.

[page 58]

As a result, where an employer might have been prosecuted for endangering the safety of a Commonwealth employee in New South Wales under the Occupational Health and Safety Act 2000 (NSW), for example, the Commonwealth Act probably allowed them in the alternative to be prosecuted under that state Act. 2.16 However, the relationship between federal and state occupational health and safety legislation later changed radically in relation to certain large employers. The companies affected by this change were only those able to be designated ‘self-insurers’ — that is, those that were large enough to themselves fund their workers’ compensation and other liabilities. The OHS and SRC Legislation Amendment Act 2006 (Cth) extended the coverage of the Commonwealth occupational health and safety system to certain of these companies that were either former Commonwealth statutory authorities, or that ‘competed’ with such authorities or the Commonwealth in the marketplace. From 15 March 2007, companies who opted to join the federal scheme (and were licensed to do so by the federal government) were exempt from the operation of state OHS legislation. The Commonwealth even changed the name of its legislation; it was broadened to become the Occupational Health and Safety Act 1991 (Cth).11 Section 4(1) of that Act then provided as follows: 4 Act excludes some State and Territory laws Exclusion of State and Territory laws (1) Subject to subsection (2), this Act is intended to apply to the exclusion of any law of a State or Territory (other than a law prescribed under subsection (3)) to the extent that the law of the State or Territory relates to occupational health or safety and would otherwise apply in relation to employers, employees or the employment of employees. Note: For the meaning of employer and employee, see section 5.

Note that this provision had a quite limited scope. The definition of ‘employer’ in s 5 of the Act only referred (where

private firms were concerned) to ‘a non-Commonwealth licensee’, which was defined as: a body corporate: (a) for which a licence under Part VIII of the Safety, Rehabilitation and Compensation Act 1988 is in force (whether or not the licence is suspended); and (b) that was an eligible corporation for the purposes of that Part when the licence was granted; and (c) that is not a Commonwealth authority for the purposes of this Act.

Therefore only companies that had been licensed to join the Commonwealth workers’ compensation system were eligible to receive this exemption from state law. [page 59] 2.17 The High Court handed down a decision validating the workers’ compensation provisions of this scheme in AttorneyGeneral (Vic) v Andrews [2007] HCA 9. It is worth noting that this High Court decision did not deal with the exclusion of state OHS laws under s 4; therefore that aspect might be the subject of a future challenge. Still, in view of the fact that the High Court gave a wide scope to the Commonwealth’s ‘corporations’ power in its decision in New South Wales v Commonwealth of Australia [2006] HCA 52 (Work Choices case), it seems likely that this exclusion would be upheld as valid, and even possible that the Commonwealth could now, if it so decided, extend its power over workplace health and safety much further.12 However, the extent to which it will do so, and the continued operation of these ‘transfer’ provisions, presently remains in doubt: see 7.17 where the current details about the Commonwealth scheme are discussed. In her book Occupational Health and Safety Law in Australia, Brooks includes a useful and concise discussion of s 109.13 For a case dealing with the issue of s 109 in the occupational health and safety context, see Stevenson v Hardy (1994) 63 SASR 86.

2.18 An interesting example of the application of s 109 in a related area is the decision of the New South Wales Supreme Court in Telstra Corporation Ltd v Worthing (1997) 42 NSWLR 655. In that case an employee of Telstra (prior to its partial sale) suffered an injury. He was entitled to claim workers’ compensation under the Commonwealth Safety, Rehabilitation and Compensation Act 1988 (SRCA 1988). However, because the accident occurred in New South Wales, he made a claim under the Workers Compensation Act 1987 (NSW), the provisions of which for his case were more generous than the federal scheme. Telstra argued that the Commonwealth in the 1988 Act had intended to ‘cover the field’ of compensation for Commonwealth employees, and that as a result the operation of the New South Wales Act in relation to those employees was excluded by s 109 of the Australian Constitution. The New South Wales Supreme Court examined the SRCA 1988 closely and concluded that in general it set up an exhaustive code for Commonwealth employees. In addition, there were many situations where there was direct inconsistency between the benefits available under the two Acts. However, the court referred to two specific provisions in the SRCA 1988, ss 52 and 118, where the federal legislature had assumed that a worker might opt to receive either federal or state compensation. The court felt that the specific provisions were a clear indication that the Commonwealth intended the state law to also be applicable, and thus there was no ‘inconsistency’ under s 109. However, in the appeal against this decision, Telstra Corporation Ltd v Worthing [1999] HCA 12; 197 CLR 61, the High Court overruled the New South Wales Supreme Court, [page 60] and held that a Commonwealth employee cannot ‘elect’ to receive state workers’ compensation benefits. Following the earlier

decision in Victoria v Commonwealth (1937) 58 CLR 618 at 630, the court said: When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.

The New South Wales law, if applicable to Commonwealth workers, would ‘detract from’ the operation of the Commonwealth scheme, and thus could not apply. Since there was a ‘direct’ clash, the question of whether or not the Commonwealth legislation ‘covered the field’ did not even need to arise. The specific provisions referred to by the Court of Appeal were not to be interpreted as giving a wide-ranging right of election. It should also be noted that in Heli-Aust Pty Ltd v Cahill [2011] FCAFC 62, the Full Court of the Federal Court held that the provisions of Commonwealth legislation governing civil aviation safety14 ‘covered the field’ regarding the safe operation of aircraft: see [67]. Hence, the OHSA 2000 was not able to be validly invoked in a prosecution in relation to a light plane crash.

Constitutional limits on Commonwealth 2.19 When we turn to the Federal Parliament, we find a number of restrictions on its legislative power based on the Australian Constitution. Explicit limits 2.20 There are many explicit limits on the legislative power of the Federal Parliament. One category of limit is simply derived from the fact that the Federal Parliament’s powers are specifically defined in s 51. No Commonwealth law will be valid unless it comes within a paragraph of s 51. One example of the way this limit affects the Commonwealth can be found in New South Wales v Commonwealth (1990) 169 CLR 482 (Corporations case). Section 51(xx) gives the Commonwealth power over:

Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.

In the Corporations case the issue arose whether this paragraph gave the Commonwealth power to establish an Act that allowed for the incorporation of a company as well as regulating existing companies. The High Court said that it did not: the words ‘formed within the limits of the Commonwealth’ meant that any federal law on the topic had to relate to already existing corporations, rather than allowing for new ones to be formed. As a result, a major piece of uniform legislation was held to be invalid, and other ways have had to be found to provide uniform company law in Australia.15 [page 61] The corporations power, however, was used as the basis for a number of controversial changes to industrial relations law in amendments made by the so-called ‘Work Choices’ legislation in 2005.16 The elements of the legislation that rely on the corporations power were challenged in the High Court as going beyond the proper scope of that power, but as noted previously (see 2.17) the High Court upheld the validity of the legislation.17 The Labor Government, while overturning the ‘Work Choices’ legislation, retained the use of the corporations power to legislate on industrial relations matters in the Fair Work Act 2009 (Cth).18 The High Court in Pape v Commissioner of Taxation [2009] HCA 23 considered the question of whether, despite the Commonwealth’s specific powers being limited to those outlined in s 51, the Commonwealth had power to spend money for other, broader purposes. A majority of the court upheld the expenditure of ‘financial stimulus’ money to cope with the ‘emergency’ situation created by the 2008–09 global financial crisis, despite the

fact that such expenditure was not specifically authorised by a head of power under s 51. However, the court made it clear that the power of the Commonwealth to make such payments was limited to such ‘emergencies’, and refused to provide support for a power of the Commonwealth to spend money on whatever it saw fit to support as a matter of the ‘national interest’. In Williams v Commonwealth of Australia (2012) 248 CLR 156; [2012] HCA 23, the High Court held that the Commonwealth could not make payments in support of a program (the National School Chaplaincy Program) under its executive powers, in the absence of supporting legislation passed by parliament. In a later follow-up to the earlier case, Williams v Commonwealth of Australia (2014) 252 CLR 416; [2014] HCA 23, the court confirmed that legislation authorising payments had to be justified by a possible head of legislative power under s 51, and that the chaplaincy scheme was not so supported. 2.21 A second type of explicit limit is seen in a number of provisions in the Constitution directed at limiting the powers of the Commonwealth. Following is a brief outline of some of these provisions: Some provisions are contained in s 51 itself: for example, s 51(ii) gives a power over taxation but spells out the proviso: ‘but not so as to discriminate between States or parts of States’. Section 99 supports this by also requiring the Commonwealth, when passing financial laws, not to ‘give preference’ to a state or part of a state. Other provisos to s 51 forbid the Commonwealth from interfering with state banking and insurance, and from setting up any form of civil conscription in relation to health services. Section 100 forbids the Commonwealth from restricting the right of a state to use water for irrigation. [page 62]

Section 114 prohibits the Commonwealth from taxing state property. Section 116 forbids the Commonwealth from establishing any religion or prohibiting the free exercise of any religion. Implied limits 2.22 As well as these explicit limits on Commonwealth power, the High Court has held that there are a number of implied limits, based on the structure and implied assumptions of the Constitution. The most important are: The implication of intergovernmental immunity; that is, the Commonwealth cannot legislate so as to seriously impair the operation of a state government: see Lord Mayor, Councillors and Citizens of The City of Melbourne v Commonwealth (1947) 74 CLR 31 (State Banking case). The implied prohibition against impairing the freedom of political discussion. This very controversial freedom was first identified in Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 (Political Advertising Ban case). There the High Court invalidated Commonwealth legislation that imposed a ban on political advertising during an election campaign, on the basis that this legislation contravened an implied freedom of communication about political matters derived from the principles of representative government found in the Constitution. Subsequent cases have: – invalidated legislation restricting a person’s right to criticise government institutions (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1); and – upheld the right to criticise members of federal and state parliaments without the restrictions imposed by the common law of defamation: Theophanous v Herald & Weekly Times Ltd (1994) 68 ALJR 713; Stephens v West Australian Newspapers Ltd (1994) 68 ALJR 765.

These cases have been subsequently reviewed by the court and the width of the potential protection of freedom of speech has been somewhat reduced: see Lange v Australian Broadcasting Corporation (1997) 71 ALJR 818, which held that freedom of political speech is not infringed by a defamation law which allows a defence of ‘reasonable’ publication.19 However, the implied freedom may still be tested in other ‘freedom of speech’ contexts. For example, New South Wales legislation which made it an offence to ‘annoy’ those involved in the 2008 Catholic World Youth Day celebrations could [page 63] arguably have been regarded as an overbroad restriction on the rights of those who may wish to picket and register protests against aspects of those activities, or other matters.20 But in fact the legislation was overturned as invalid by the Full Court of the Federal Court on other grounds, which are discussed below (see 2.61), relating to the protection of ‘implied common law rights’ as a matter of statutory interpretation.21 More recently, the implied freedom was held in Unions New South Wales v New South Wales [2013] HCA 58 to apply to invalidate provisions of a New South Wales law which prevented political donations being made by certain corporate bodies, and imposed limits on campaign spending. However, there have been a number of other cases where attempts to declare legislation invalid on the ground of the implied freedom have failed: see, for example, Tajjour v New South Wales [2014] HCA 35; McCloy v New South Wales [2015] HCA 34 (although in both cases one of the members of the court dissented). In Monis v R [2013] HCA 4 there was an unusual 3:3 split in the High Court (only six judges heard the case). A ‘statutory majority’

upheld a provision of the Commonwealth Criminal Code (that is, declared them not to be invalid). Half the bench were of the view that it was invalid. French CJ, Hayne and Heydon JJ (each delivering separate judgments) held the law infringed against the implied freedom. Crennan, Kiefel and Bell JJ (in a joint judgment) held that the law did not infringe against the implied freedom. Because this case came on appeal from the New South Wales Court of Appeal the statutory majority under the Judiciary Act 1903 (Cth) s 23 was the one that agreed with the court below. The closeness of the decision illustrates the difficulty that the courts are having defining the parameters of the freedom and its interaction with other laws. There have not been many decisions of courts at lower levels applying the implied freedom. However, one example is the decision of a single judge of the Federal Court, Buchanan J, in Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370. His Honour held that the decision of the Australian Defence Force (ADF) to discipline an Army Reserve officer for controversial views expressed by that officer outside the workplace (in private blogs and internet posts) was unlawful as the policy applied by the ADF was too great a restriction on the officer’s freedom of political speech.22 Whether other ‘freedoms’ may be implied from the Constitution is an open question, to be decided by the future course of High Court judgments. [page 64] Provisions limiting both Commonwealth and states 2.23 There are some provisions that limit Commonwealth and the states. The major ones are:

both

s 92, which requires that trade ‘shall be absolutely free’;23 and

the

s 117, which prevents a law discriminating between residents of different states.24

Former limits: paramount Imperial legislation 2.24 We should note at this point that previously there were limits on Commonwealth and state power to legislate, flowing from the superior position of the United Kingdom Parliament. This meant that where a statute of the United Kingdom Parliament specifically extended to cover Australia, the local parliament did not have power to override it. In relation to the Commonwealth this restriction was removed as from the beginning of World War II in 1939, by the Commonwealth adoption in 1942 of the Statute of Westminster. Section 2(2) of the statute makes it clear that Commonwealth legislation cannot be invalidated due to a conflict with United Kingdom legislation. In 1986 the United Kingdom Parliament, the Commonwealth and the states removed the last of these kinds of restrictions on the states with the enactment of the various Australia Acts 1986. Of course, various United Kingdom statutes that were in force prior to the enactment date of those Acts may still be in force until amended by the appropriate parliament. In New South Wales the problem of identifying these statutes was largely solved by the enactment of the Imperial Acts Application Act 1969 (NSW), which stated that any United Kingdom legislation that did not apply by ‘paramount force’ was either specifically re-enacted in that Act or else repealed.

Reading legislation 2.25 Having discussed Acts, and learned how they are created, we will now look at an example and learn how to read it. It may seem strange to speak of learning to ‘read’ a case or a

statute. After all, to understand this book, you must already be able to read! However, by ‘reading’ I do not mean the physical act of seeing and recognising individual words. Most pieces of writing we encounter fall into one of a number of [page 65] ‘types’ or ‘styles’; the technical word that is sometimes used is ‘genre’. A number of features of the writing tell us what the genre is and hence what to expect. An A4 single sheet of paper that is delivered to you inside an envelope and on which there is typewritten content is likely to be of the genre that we call a ‘letter’; we may even go further and call it an ‘official letter’. A large broadsheet on poor quality paper with smudgy ink that lands on our doorstep in the morning is likely to be a newspaper. What we expect to find in those pieces of writing will be different for each genre. I do not expect to find the latest cricket scores in a letter delivered by the postman; I do not expect to open the Newcastle Herald and find my name in bold headlines across the top! Every different genre has its own rules that we need to learn in order to make best use of the material it presents. One of the ‘rules’ of letters is that we expect to find the sender’s name at the bottom. With regard to the newspaper, we probably all have sections we turn to first, for example the comics or the sports pages. 2.26 The same situation applies to reading legislation. At first sight legislation may appear mystifying and incomprehensible. However, when you know a few simple rules about where to look for what, reading it becomes a much simpler task. Of course, it will still sometimes be difficult, but if you know what you are doing, you can at least feel that you are struggling with the right section.

In Appendix 6, ‘The Parts of an Act of Parliament’, at the end of the book, you will find an example of a piece of legislation, with the various ‘bits’ labelled, accompanied by some brief comments. The large numbers next to the extracts from the statute are explained by the comments.

Stop and Think 2.1 Try to answer the following questions about the Work Health and Safety Act 2011 (NSW) based on Appendix 6 (before looking up the answers at the end of the chapter). 1. How many Acts of the New South Wales Parliament became law in 2011 before this Act? 2. On what date did the Act commence operation? 3. Summarise the first main object of the Act. 4. What Part of the Act defines ‘approved code of practice’?

Delegated legislation 2.27 Having discussed Acts of Parliament, we now need to touch on the other source of legislation; this is called ‘delegated legislation’.

What is delegated legislation? 2.28 Delegated legislation (or subordinate legislation) is the general term used to describe laws that are made not directly by parliament but by some other person or body with the authority of parliament.

[page 66] The most important type of delegated legislation is made by the Governor (at the state level) or the Governor-General (at the federal level). These pieces of legislation are usually called ‘regulations’, although they may also be called ‘Statutory Rules’. A provision of an Act will authorise the Governor to make this subordinate legislation, usually on specific topics. An example of an authorising provision is: 276 Regulation-making powers (1) The Governor may make regulations in relation to: (a) any matter relating to work health and safety, and (b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act.

There are other types of subordinate legislation that may be made by government agencies or other statutory authorities. We will be primarily examining regulations; note that, however, in general, the same principles apply to all delegated legislation. There are a number of reasons for the delegation of the power to legislate. Probably the most significant reason is that pressure on parliamentary time means that the details of administration are best left until after the policy has been agreed upon. Particular situations that arise after parliament has passed the Act can be dealt with more easily under regulations. Of course, there is a danger that the executive government may abuse this power to legislate.

Is it valid? 2.29 The question may arise: how is it possible for a member of the executive government to carry out a function traditionally thought to belong to the legislature? This is particularly relevant

in the Commonwealth sphere where, as we have discussed, there is a constitutionally imposed separation of powers: see 1.17. However, some time ago the High Court ruled that this type of procedure was generally valid: see Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73. Even quite wide delegations of power to legislate are possible; the only restriction in the Commonwealth sphere is that the delegation must not be so wide that it goes beyond the legislative powers set out in s 51.

Control of delegated legislation 2.30 While delegated legislation may cover quite a wide field, there are some mechanisms that control it. Limits of parliamentary delegation 2.31 The power to make delegated legislation must conform to the purposes for which it has been given, and must not go beyond those purposes. A power to make [page 67] regulations governing the supply of chalk will probably not support a regulation governing the selling of cheese, for example. The principles applied by the courts in dealing with the question of whether delegated legislation is valid or not were discussed by the Tasmanian Supreme Court in House v Forestry Tasmania & Attorney-General for Tasmania (1995) 5 Tas R 169 (House). The Supreme Court said (at 174) that previous authority: … appears to require a court in considering delegated legislation to determine whether the operation of that delegated legislation was reasonably adopted as a means of attaining the ends of the rule-making power.25

That is, the court must consider whether the means adopted by the rule-maker to regulate the subject matter are ‘reasonable’. In House, the Supreme Court found that reg 201 of the Industrial Safety, Health, and Welfare (Administrative and General) Regulations 1979 (Tas) was invalid, on the basis that it imposed an ‘absolute’ liability to maintain a safe workplace, and in so doing went beyond the provisions of the Act under which it was made. The Industrial Safety, Health, and Welfare Act 1977 (Tas), under which the regulations were made, provided in s 32 that: … every occupier of a work place and every person carrying on an industry shall take reasonable precautions to ensure the health and safety of persons employed or engaged at that work place or in that industry. [emphasis added]

The Supreme Court found that the regulation went beyond the scope of the power given by the Act, and was thus invalid (ultra vires, meaning ‘beyond power’). 2.32 One feature of the previous New South Wales legislation was that the OHSA 2000 itself imposed absolute rather than merely ‘reasonable’ obligations; however, the Tasmanian legislation was not so wide. But the principle is clear: regulations or other delegated legislation must stay within the limits imposed by the empowering legislation. In Epstein v WorkCover Corporation of South Australia [2003] SASC 231, for example, the Full Court of the Supreme Court of South Australia held that certain workers’ compensation regulations were invalid because the board that purported to make them did not comply with the terms of the power given by the provisions of the relevant Act. In Evans v New South Wales [2008] FCAFC 130, a section of the World Youth Day Regulation 2008 which prohibited the ‘annoying’ of World Youth Day participants (see 2.22) was found to be invalid, as the court held that such a wide-ranging regulation which impinged on the ‘fundamental’ common law right of freedom of speech was not authorised by a ‘general’ regulation-

making power given by the head legislation, the World Youth Day Act 2006. In Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 the majority of the High Court found that a regulation governing preaching on a public road was within the general area of regulations authorised by local government laws, and that (so long as the regulation was interpreted as dealing with traffic flow rather than the [page 68] content of the preaching) it served a legitimate end and was reasonably appropriate and adapted to support that end: see [66]. Legislation must conform to procedural requirements 2.33 A number of procedural requirements are also imposed on the regulation-making power. The main procedures for this purpose are as follows: There is usually a requirement for the regulations or other delegated legislation to be ‘tabled’ (that is, made available) in parliament within 15 sitting days. This gives Members of Parliament a chance to examine it. In addition, various Acts require publication of delegated legislation within a certain time of its enactment, so that it can be purchased through government bookshops. It will usually also be accessible online, for example, see the Federal Register of Legislation, , which contains a sub-category for ‘Legislative Instruments in Force’. Supervision by parliamentary committees 2.34 Subordinate legislation is often closely supervised by parliamentary committees. In the Commonwealth sphere, for

example, the Senate Regulations and Ordinances Committee checks (under Senate Standing Order 23(3)) that each subordinate legislative instrument: is in accordance with the statute; does not trespass unduly on personal rights and liberties; does not make the rights and liberties of citizens unduly dependent on administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and does not contain matter more appropriate for parliamentary enactment. In New South Wales a joint parliamentary committee, the Legislation Review Committee, is established by the Legislation Review Act 1987 (NSW), s 9(1)(b) of which sets out the functions of the committee: 9 Functions with respect to regulations (1) … (b) to consider whether the special attention of Parliament should be drawn to any … regulation on any ground, including any of the following: (i) that the regulation trespasses unduly on personal rights and liberties, (ii) that the regulation may have an adverse impact on the business community, (iii) that the regulation may not have been within the general objects of the legislation under which it was made, [page 69] (iv) that the regulation may not accord with the spirit of the legislation under which it was made, even though it may have been legally made, (v) that the objective of the regulation could have been achieved by alternative and more effective means, (vi) that the regulation duplicates, overlaps or conflicts with any other regulation or Act, (vii) that the form or intention of the regulation calls for elucidation, or (viii) that any of the requirements of sections 4, 5 and 6 of the Subordinate

Legislation Act 1989, or of the guidelines and requirements in Schedules 1 and 2 to that Act, appear not to have been complied with, to the extent that they were applicable in relation to the regulation.

Specific consultation requirements 2.35 A number of states have now introduced legislation requiring consultation with the public and preparation of a ‘regulatory impact’ statement before delegated legislation is made. In New South Wales, for example, this is governed by Pt 2 of the Subordinate Legislation Act 1989. Section 5 provides that the public must be notified of the impact statement and time must be allowed for comment. The Legislation Act 2003 (Cth) provides for a consultation process for Commonwealth ‘legislative instruments’ (defined in ss 8 and 10 of the Act to include regulations but also a range of other instruments ‘of a legislative character’ made under parliamentary authority). Sections 17 and 19 of the Act require consultation to be undertaken where the rule-maker considers it ‘appropriate’.26 ‘Sunset’ provisions 2.36 Another fairly recent development in this area is the increasing popularity of ‘sunset’ legislation for regulations. In New South Wales, for example, this is implemented by Pt 3 of the Subordinate Legislation Act 1989 (NSW). Section 10 of the Act provides that New South Wales subordinate legislation will automatically be repealed after five years if it has not specifically been re-enacted within that time. These types of provisions are designed to ensure that the executive government is required to review and rethink regulations on a regular basis. Part 4 of Ch 3 of the Legislation Act 2003 (Cth) contains similar provisions for Commonwealth regulations except that a 10-year ‘life’ is provided for: see s 50 of the Act.27

[page 70] This legislation, while a good idea in theory, can make life complicated when regulations that have not quite outlived their usefulness are about to expire. In the workplace health and safety area, for example, a number of regulations have had to be hastily re-enacted or granted ‘exemptions’ by the Governor under s 11 of the Subordinate Legislation Act 1989 (NSW) to extend their operation beyond the allowable five years to enable a review by the government. As an example, in light of the proposals for harmonisation, s 10A(2) of the Subordinate Legislation Act 1989 was amended to provide that the OHS Regulation 2001 was to stay in force until 1 September 2012 (unless repealed earlier).28 That Regulation has now been repealed by the new Work Health and Safety Act 2011 (NSW), which implements the harmonised system.29 Given that the five-year period for the WHS Regulation 2011 will expire in the course of 2016, it will be interesting to see whether the government extends its operation or attempts to remake it during the year.

Interpreting legislation: role of the courts 2.37 Finally, in the area of legislation, we need to examine the way that the courts interpret statutes and regulations. Even though we have seen that the two main sources of law are common law and statute (see 1.35), the two are not separated in completely watertight compartments. We have already seen that a statute can overturn the effect of a court decision. We will now discuss how the courts can have an impact on statutes through the way that they interpret them. Statutes are not ‘self-executing’. Whatever a statute may state, in reality it can only have an effect on someone after it has been interpreted and applied by a court. For this reason it is important to have some

understanding of the rules that courts apply when considering legislation.

Common law rules for interpreting legislation 2.38 As you might expect, even the rules that courts apply in interpretation come from two sources: the common law and statutory rules. We will look first at the common law rules. Because some of these rules have been changed by statute in recent years, however, we will also note the statutory amendment of the common law rules. [page 71] Basic principle: parliament’s intention 2.39 The basic and overriding objective that the courts seek to achieve can be stated very simply. Kirby J, when a member of the Supreme Court of New South Wales, expressed it in this way in Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 132 ALR 449 at 455 (Logan Park): … the duty of the court is to give effect to the will of Parliament as expressed in the language by which that will is stated.

This statement highlights two important points. The first is that the court is seeking the intention, or will, of parliament. Parliament is the supreme lawmaker, and the court’s role is give effect to the law parliament intended to make. The second point is, however, equally important: that in seeking the will of parliament, the main and overriding instrument that must be employed is the language that parliament actually used in the statute. We will see below (at 2.77) that while nowadays a court is allowed to refer to parliamentary debates and Law Reform reports in determining parliament’s intention, these cannot

overrule the words that parliament uses. As Kirby J went on to say in Logan Park (at 457): … the ultimate duty of a court is one of fidelity to the language which Parliament has actually used … Ministerial speeches and explanatory memoranda cannot substitute for the language of Parliament which is expressed in its statutes.

To put it another way, even if by some magical process it was possible to finally and completely determine that the subjective intention of every Member of Parliament at a particular time was ‘A’, if the words that parliament has used amount to ‘B’, and cannot by any normal use of language mean ‘A’, then the courts must read the meaning as ‘B’. In seeking to interpret the language parliament has used, however, the courts have developed a number of guidelines. While I have called them ‘rules’, because that is how they are commonly referred to, it is important to realise that they are better understood as ‘guidelines’. None of them are finally definitive; each of them is simply an approach to the ultimate task of finding parliament’s intention in the words that it has used. Literal rule Traditional formulation 2.40 We will start with a discussion of the ‘literal rule’. The classic formulation of the rule in Australia is that of Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161–2 (Engineers’ case): The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.

[page 72]

The emphasis of the ‘literal rule’, then, is to simply look at the ‘ordinary and natural sense’ of the words. If the meaning of the provision is clear, that meaning must be the one adopted, even if the result seems to be ‘improbable’. Examples of the application of the literal rule can be found in courts all over Australia every day, simply because legislation generally meets the expectations of parliament and the courts. However, there are some cases where the rule creates problems, due to the fact that the particular legislation operates in unexpected ways. An example of this is to be found in Higgon v O’Dea [1962] WAR 140.30 In that case, s 84 of the Police Act 1892 (WA) read: Every person who shall have or keep any house, shop, or room … and who shall … knowingly permit or suffer persons apparently under the age of sixteen years to enter and remain therein … shall, on conviction for every such offence, be liable to a penalty …

Mr Higgon was charged under this Act because he allowed a 15year-old boy to enter an amusement arcade that he operated. In fact, the rest of the section refers to the person permitting drunkenness, gambling or prostitution to take place, and the section was clearly only intended to deal with situations that used to be described as those that gave rise to ‘moral danger’. However, it also literally prohibited anyone who kept a shop of any sort from allowing children inside the premises. The Supreme Court of Western Australia held that the result was absurd, but was constrained by the words of the statute. To implement what might have been parliament’s intention would have required the addition of extra words, which the court said it could not do. As a result of Mr Higgon’s conviction, the relevant Act was almost immediately amended to clarify its application to children. 2.41 The fact that the use of the ‘literal’ interpretation is not completely dead can be seen in the decision of the High Court in

Commissioner of Taxation (Cth) v Ryan [2000] HCA 4; (2000) 201 CLR 109 (Ryan). In that case a taxpayer filed a return for the 1986–87 financial year, and received a piece of paper that indicated that her tax liability was ‘$0.00’. Six years later, in 1994, she received an amended assessment in relation to that year which disallowed one of her previously allowed deductions and assessed her for over $14,000 in back tax. Not surprisingly, she tried to rely on s 170(3) of the Income Tax Assessment Act 1936 (Cth), which provided: Where a taxpayer has made to the Commissioner a full and true disclosure of all the material facts necessary for his assessment, and an assessment is made after that disclosure, no amendment of the assessment increasing the liability of the taxpayer in any particular shall be made after the expiration of 3 years from the date upon which the tax became due and payable under that assessment. [emphasis added]

[page 73] While you might think that would resolve the issue, in fact it did not. The majority of the High Court found that a notice that specified a zero amount of money due was not, within the terms of the Act, an ‘assessment’. The court said (at [15]): At the very least, language is strained by saying that tax becomes “due and payable” on a particular date in circumstances where the Commissioner has issued a document informing the taxpayer that the Commissioner has determined that the taxpayer owes no amount for tax. No amount of teasing of the words of s 170(3), or of the words of s 204, can reduce, let alone eliminate, that strain. Whatever may be the elasticity of the expression “the date upon which the tax became due and payable”, it does not, and cannot, accommodate the case where no tax is due and payable. [emphasis added]

In other words, the majority focused on the words ‘due and payable’ and held that since nothing is ‘due’ when there is a nil assessment, then s 170 did not apply. Modern treatment 2.42

Citation of the many other cases applying the ‘literal rule’

would not be helpful, as the approach has been generally discredited following the High Court decision in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 319–23 (Cooper Brookes). Mason and Wilson JJ referred to the paragraph quoted above from the Engineers’ case (see 2.40) and then stated (at 320): It would have been better had Higgins J omitted the last clause of the last sentence from the passage which we have quoted. The last clause may be taken to suggest that the operation of a statute is not relevant to the ascertainment of its meaning and this is certainly not now the case, if it ever was. Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural or ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.

In other words, the literal approach is not to be followed today where it would lead to an inconvenient or absurd result, if there is an alternative construction of the words which is ‘reasonably open’. The court will pay at least some attention to the effect of the interpretation of the words used in the statute. If that interpretation would clearly undermine the policy of the legislation as a whole, then the court will try to find another possible interpretation. 2.43 In the High Court case of Ryan mentioned above (see 2.41) one judge — Kirby J — dissented. He pointed out that the piece of paper that the taxpayer received 14 times referred to itself as an ‘assessment’. He made these comments (at [61]): [T]here is an alternative construction of the relevant provisions of the Act. That construction is to be preferred because it promotes the purpose for which the Parliament

[page 74] enacted s 170(3). It avoids the bizarre and clearly unjust consequences which would flow

from the construction urged for the Commissioner. [emphasis added]

He referred to previous decisions that might have been taken to support the Commissioner of Taxation and said (at [64], [68]): [I]f a court concludes that previous judicial observations about the Act are incorrect, have taken a wrong turning or have resulted in outcomes that are absurd, the judicial duty will be to express the true meaning of the Act. If the language of the statute permits of this Court the restoration of the Parliament’s apparent policy in a provision such as s 170(3), in the face of some judicial conclusions which have frustrated the attainment of that policy, this is not excessive activism … It would be absurd if, under the … Act, the taxpayer acquired the protection of s 170(3) in a case where he or she was assessed to tax due and payable in the sum of five dollars but no protection at all where the assessment was nil. The extent of the absurdity can be tested thus. On the Commissioner’s proposition, although his actions in accordance with the Act were precisely the same, and the same forms and notifications were duly sent to a taxpayer, it would remain open (in the event of a nil assessment) to subject a taxpayer to a fresh assessment of tax five, ten or 30 years later. This construction should not be imposed on the Act unless the words are intractable and do not permit of a more rational operation. [emphasis added]

Kirby J commented in conclusion (at [82]): [P]arallel to the legislative changes just described … have been moves of the common law itself to adopt a more purposive approach to the task of statutory construction … In Australia, an important exposition of the new approach for the courts was given by McHugh JA in Kingston v Keprose Pty Ltd … Although dissenting as to the result, his Honour’s treatment of the judicial function in statutory construction has proved most influential. … In the last decade, there have been numerous cases in which members of this Court, referring to the statutory and common law developments, have insisted that the proper approach to the construction of federal legislation is that which advances and does not frustrate or defeat the ascertained purpose of the legislature, to the full extent permitted by the language which the Parliament has chosen … Even to the point of reading words into legislation in proper cases, courts will now endeavour, more wholeheartedly than in the past, to carry into effect an apparent legislative purpose. Examples of this approach abound in Australia, England … and elsewhere. This Court should not return to the dark days of literalism. [emphasis added; footnotes omitted]

While dissenting in the specific result of Ryan, his Honour’s comments do represent the general approach of the courts today. In a decision on the OHSA 2000, Cahill v New South Wales (Dept of Community Services) (No 3) [2008] NSWIRComm 123, Boland J, President of the Industrial Court, commented (at 202):

The process of construction must always begin by examining the context of the provision that is being construed: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ.

[page 75] See also K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J. The objective is to find the underlying purpose or object of the statute and, if possible, to adopt an interpretation of the relevant statutory provision that furthers the purpose or object: D C Pearce & R S Geddes, Statutory Interpretation in Australia, (6th ed, 2006) at 33.

However, there will still be cases where the courts wrestle with what parliament intended. In Director of Public Prosecutions (DPP) v Downer EDI Works Pty Ltd and Roads Corporation t/as VicRoads [2015] VSCA 287 the Victorian Court of Appeal was asked to determine whether specific provisions requiring a roads authority to ensure the safety of road users and workers, should be deemed to apply to the exclusion of the general Occupational Health and Safety Act 2004 (Vic). The court held that there was no inconsistency, and that both sets of provisions could be complied with. In doing so they applied the general principle that statutes should be read consistently with each other unless there is a clear indication that one intends to over-rule the other: see the discussion of ‘implied repeal’ at [74]–[75]. ‘Golden rule’ Traditional formulation 2.44 To avoid some of the problems that arose when the literal approach was strictly applied, the courts developed a limited class of exceptions to this approach that went by the name of the ‘golden rule’. Essentially this rule stated that the literal rule would not be applied where the ordinary rules of grammar led to an absurd

result ‘on the face’ of the Act. Lord Wensleydale stated the rule in Grey v Pearson (1857) 6 HL Cas 61; 10 ER 1216. The ‘golden rule’ was limited, however, to those cases in which there was an apparent problem within the legislation; it did not apply where an interpretation led to an apparently strange policy result. One of the best examples of the application of the ‘golden rule’ is Lindner v Wright (1976) 14 ALR 105. In that case a section of the Fisheries Ordinance 1965 (NT) gave certain powers to an inspector of fisheries, provided that the inspector forwarded a report on certain matters. Section 8A(4) referred to the report. Section 8A(6) then mentioned ‘the report referred to in sub-section (3)’. There was no doubt that the intended reference was to subs (4). The court therefore said that it would treat subs (6) as if it referred to subs (4). The High Court had to consider whether there was a sufficient ‘absurd’ effect of a legislative provision to allow ‘reading in’ of extra words in Taylor v The Owners — Strata Plan No 11564 [2014] HCA 9. The majority (French CJ, Crennan and Bell JJ) held that, while the legislation operated in a narrow way if the words that were there applied, it would be going too far for a court to read in additional words. ‘Reading in’ words could only be done in very limited circumstances (at [38]): The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters

[page 76] of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision31. It is answered against a construction that fills “gaps disclosed in legislation”32 or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”33.

Modern treatment 2.45 In line with the more liberal modern approach in Cooper Brookes referred to above (see 2.43), the general trend (where the ‘golden rule’ is referred to at all) is to say that the court may exercise a discretion to depart in some way from the literal sense of the words not only in cases of absurdity ‘on the face’ of the Act. In Cooper Brookes, the High Court preferred to put it this way (at 321): … the propriety of departing from the literal interpretation is not confined to situations described by [the common law] labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

‘Mischief rule’ Traditional formulation 2.46 The broadest approach adopted by common law courts used to be what was called the ‘mischief rule’. The rule (and its unusual name) came from a case known as Heydon’s case (1584) 3 Co Rep 7a; 76 ER 637. In its original form the rule requires the court to consider the state of the common law before the passing of the statute; to consider the ‘mischief’ or problem intended to be remedied by the statute; and to interpret the statute to give effect to parliament’s intention to resolve the problem. The rule assumed that statutes were generally enacted to remedy some problem in the common law. If the statute was ambiguous in some way, then the court was entitled to examine the problem to be remedied and interpret the legislation accordingly. Modern treatment 2.47 In general we may say that in the modern approach the ‘mischief rule’ has been absorbed into the ‘purpose’ rule.

[page 77] ‘Purposive’ approach At common law 2.48 The ‘purposive’ approach is generally recognised as the primary modern approach to interpretation. This was the case even before the statutory developments that will be discussed below: see 2.49. This approach requires the court to consider the purpose of the legislation generally, rather than simply the ‘mischief’ created by the common law. In addition, it seems clear that the passages quoted from Cooper Brookes (see 2.42) would imply that the court does not have to find some ‘ambiguity’ or ‘uncertainty’ before turning to the purpose; it can look at the purpose of the Act (at least where that purpose appears from within the Act itself) from the outset. Statutory rule 2.49 Nowadays the question whether this is or is not the proper modern approach at common law is really academic, because a statutory rule exists which governs the issue in both the Commonwealth and state area.34 We will take as the primary example s 15AA(1) of the Acts Interpretation Act 1901 (Cth), which currently provides: In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.35

A similar provision applies to New South Wales legislation: see Interpretation Act 1987 (NSW) s 33. Both the statutory regime and the current trend in interpretation were referred to by McHugh J, when a member of the New South Wales Court of Appeal, in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421–4:

A purposive and not a literal approach is the method of statutory construction which now prevails … In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or

[page 78] object of the Act. The Acts Interpretation Act 1901 (Cth), s.15AA, and the Interpretation Act 1987 (NSW), s.33, both require this approach to statutory construction.36

2.50 In order to flesh out this theory, let us consider a decision of the New South Wales Court of Appeal on a provision of the former Workers’ Compensation Act 1926 (NSW):37 Monier Ltd (t/as Reliance Roof Tiles) v Szabo (1992) 28 NSWLR 53 (Szabo). Mr Szabo was claiming workers’ compensation under the 1926 Act for an injury sustained while working for Monier. As a matter of fact the lower court (the Compensation Court) found that he was an independent contractor rather than an employee, a distinction that will be discussed in detail in Chapter 3. However, s 6(3A) of the Act extended the definition of ‘worker’ to include a contractor who (among other things) does not ‘employ workers’. Mr Szabo was shown to have from time to time employed one worker. The question was: did the plural ‘workers’ include the singular ‘worker’? If not, Mr Szabo could still be regarded as a ‘worker’. The judgment of Kirby J is very helpful in answering this question, as he provides an excellent example of how a court tries to answer questions of statutory interpretation. In his judgment (at 56) he sets out the ways that the court can solve the riddle. He then goes on to refer to the Interpretation Act 1987, and the effect of the general rule. He discusses authority and examines the legislative history and speeches in parliament, none of which provide much help in determining the question. Finally he turns

to the overall purpose of the legislation. In the end he concludes that this purpose (and the fact that ‘workers’ is in the plural in this section but hardly anywhere else) point to the word being given a very ‘literal’ meaning: only someone who employs more than one worker will be excluded. So Mr Szabo could be regarded as a ‘worker’ and receive compensation.38 Interpretation in context of the Act 2.51 There are a number of other so-called ‘rules’ or guidelines that the courts adopt in reading statutes, a detailed examination of which are beyond the scope of this book. However, it is important to know that the one thing they all have in common is that they all are rules that require the court to look at the words of a section or subsection in context. That is simply a general rule of language that we all apply when reading anything — to read it in context. It has been said that a text, without a context, is a pretext. The context of a provision in a statute is, first, the part of the statute it is in; next, [page 79] the statute as a whole; and extending further, other statutes on similar topics, the previous common law and the constitutional basis. Keeping these things in mind — that the basic rule is to read a provision in context — we will consider some of the rules that courts use to remind them about context. Definitions of words 2.52 One of the most helpful parts of a statute when determining the meaning of a word is frequently the ‘definitions section’. Almost every Act of any length contains a section

defining certain key words. In most Acts these sections are near the beginning, often in s 3 or s 4. One exception is the Local Government Act 1993 (NSW), in which most of the definitions appear in a ‘Dictionary’ at the very end of the Act. (A corresponding example of this from the Commonwealth sphere is the Native Title Act 1993 (Cth).) These interpretations will be applied whenever the word appears in the Act, unless it is clear that some other meaning is required. As an example see the definitions section, s 4, in the Work Health and Safety Act 2011 (NSW). In addition to the definitions in a specific Act, each jurisdiction in Australia has an Act that provides definitions that are applicable to all other Acts. We will discuss these below: see 2.69. If a word is not defined in another part of the Act, or in another Act, then the court will usually take the ordinary everyday meaning of the word. But if the word has acquired a technical meaning in a particular area, that meaning may be applied. A technical legal meaning might be applied if an Act was altering an area of common law, for example. ‘Latin maxims’ 2.53 Courts also have historically used various Latin sayings — or maxims — from time to time. Four of the most commonly used are set out below, all of which are specific examples of the need to examine context when determining the meaning of a word. 2.54 Noscitur a sociis (‘he is known by his companions’): This maxim simply requires the court to consider the context of words. In particular this rule is usually cited when a general word has been used which could mean a number of things. The word is said to take its ‘colour’ from the surrounding context. Thus, in a prohibition on bookmaking, in any ‘house, office, room or place’, the High Court held that ‘place’ did not extend to a public road: Prior v Sherwood (1906) 3 CLR 1054. In R v Ann Harris (1836) 173

ER 198, a provision which made it a crime to ‘stab, cut or wound’ somebody was held not to include ‘bite’, and the accused, who had bitten off a woman’s nose, was set free. In a case perhaps more immediately relevant for our purposes, in WorkCover Authority of New South Wales (Inspector Gilbert) v Energy Australia (formerly Sydney Electricity) (1998) 85 IR 99, Hungerford J used the maxim to find that a reference to ‘liabilities’ in legislation setting up a new public authority in place of a previous one, [page 80] and transferring ‘liabilities’ from one to the other, did not include ‘criminal liability’. His Honour commented (at 115–16): The context limited the scope of the liabilities concerned to civil liabilities … Mr Williams’ submission applying the maxim noscitur a sociis … was correct.39

2.55 Ejusdem generis (‘of the same kind’): This is a more specific rule. It means ‘of a like nature’ or ‘genus’. Where a list of items is given in a statute, followed by a general word, then the general word will usually be held to fall into the same ‘genus’ or category as the specific words (assuming the specific items can be given some category). A statute referring to ‘horses, cows, goats and other animals’ might be thought reasonably not to cover tigers and lions. In Hughes v Winter [1955] SASR 238, the defendant, Winter, was charged with having gathered together a number of persons and obstructed traffic, contrary to the by-laws of the Adelaide City Corporation. The evidence was that he had done this by getting an employee to dress up in a gorilla suit and walk around on the steps of his theatre. The provision that he was supposed to have breached was: No person shall by speaking, shouting, singing, playing upon, operating or sounding

any musical or noisy instrument or doing anything whatsoever attract together a number of persons in any street or so as to obstruct traffic.

In fact it was found that the employee in the gorilla suit had made no noise, but had simply jumped up and down on the theatre steps. Was the action prohibited under the words ‘doing anything whatsoever’? The Supreme Court of South Australia gained a permanent place in statutory interpretation textbooks by applying the ejusdem generis rule, and finding that the defendant was not guilty because the ‘genus’ established by the earlier part of the section was ‘noise makers’. There is a helpful discussion of the maxim in Visy Paper Pty Ltd v Glass Granulates Pty Ltd [2014] NSWSC 1387, which, while dealing with contractual interpretation rather than statutory interpretation, is still relevant to its application in statutes. There it was found that where a contract involving one of the parties being under an obligation to remove ‘paper, plastic, cardboard and other contaminants’, the word ‘contaminants’ should be interpreted as being of the same ‘genus’ as the other words, and hence not including material containing inherently ‘dangerous’ contaminants such as asbestos. 2.56 Expressio unius est exclusio alterius (‘the expression of one implies the exclusion of others’): Where one thing is spelled out, this may exclude others by implication. For example, in a situation where a commission of inquiry was given specific powers to make certain reports, it was held that this implied that the commission could not make [page 81] a general report about someone’s criminal liability: Balog v Independent Commission Against Corruption (1990) 169 CLR 625. In Heffernan and Comcare (Compensation) [2015] AATA 655 the maxim was one of the factors that led the tribunal to conclude that,

where one provision of legislation explicitly referred to provision of a motor vehicle following an injury, that funding of a motor vehicle could not be justified under another provision which simply referred to providing ‘aids’ for a worker. Express reference to motor vehicles in one provision excluded a later general term from being designed to deal with motor vehicles. 2.57 Generalia specialibus non derogant (‘the general does not detract from the specific’): This refers to the principle that a general statute will not necessarily affect an earlier provision that was designed to deal with specific cases. See McLean v Kowald [1974] SASR 384; and, for a more recent example, see Totalizator Agency Board v TAB Agents’ Association of New South Wales (1995) 36 NSWLR 594 (Ind Ct of NSW, Full Ct) (TAB case). Particular parts of the Act 2.58 There are a number of rules governing whether the courts will consider the different parts of an Act as printed (other than the sections themselves) in interpretation — that is, headings etc.40 By way of summary, the long title, and the headings to Parts or Chapters of an Act are often consulted, but individual section headings are often considered less reliable.41 Even if these elements of the Act are considered in interpretation, this will always give way to the meaning of actual operative provisions themselves if the words are clear. Interpretation in context of the common law: presumptions 2.59 In addition to these syntactical rules on context, there are a number of more general rules, which take into account the context of the common law, and the historic principles of the legal system. Against interference with fundamental rights 2.60

As a first example we will look at the presumption against

interference with ‘fundamental rights’. The New South Wales Court of Appeal case of Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 132 ALR 449 provides a good illustration of this principle. In that case, property owned by Logan Park was forfeited to the Crown when one of the controllers of the company was convicted of drug dealing. At issue was a question of interpretation of ambiguous statutory provisions [page 82] that might have allowed Logan Park a second chance to appeal against the forfeiture of its property. Kirby ACJ said (at 455–6): The right to own and control property is an important civic right in a society such as ours … It will be presumed that [ambiguous federal legislation] is written against the background of an acceptance of such fundamental principles.

Generally, legislation that takes away property or liberty, or otherwise removes fundamental rights, will be construed against the removal of those rights where the legislation is ambiguous. This is sometimes now referred to as the ‘principle of legality’. However, as Durham Holdings Pty Ltd v State of New South Wales [2001] HCA 7; (2000) 205 CLR 399 illustrates, this presumption may be overcome by very specific language, as it was in that case where the New South Wales Parliament chose to appropriate coal at less than its full market value. In the judgment of the High Court, Kirby J reaffirmed the strength of the principle (at [28]): [W]ithin the Australian legal system, courts will presume that legislation (federal, State or Territory), or subordinate laws made under such legislation, do not amend the common law to derogate from important rights enjoyed under that law, except by provisions expressed in clear language. This principle is sometimes described as a “presumption”1 or as a “[rule] of construction”2 or as an “intention” which is attributed to the lawmaker. It rests on the imputed aspiration of the law to attain, and not to deny, basic precepts of justice. The presumption, rule of construction or imputed intention certainly applies to the taking of property without compensation. This has been acknowledged by this Court in respect both of legislation3 and

delegated lawmaking.4 Indeed, it has been suggested that “the general rule has added force in its application to common law principles respecting property rights”.5 1.

As it was in the Court of Appeal: Durham Holdings (1999) 47 NSWLR 340 at 353 [43].

2. 3.

Bropho v Western Australia (1990) 171 CLR 1 at 17. Bropho v Western Australia (1990) 171 CLR 1 at 17–18.

4.

C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400 at 406– 07, 415. American Dai3ry Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 at 683.

5.

But, he continued (at [31]), the presumption is always liable to be displaced by clear language: However, any presumption, rule of construction, or imputed intention is subject to valid legislative provisions to the contrary. Judges may decline to read such legislation as having such an effect. The more peremptory, arbitrary and unjust the provisions, the less willing a judge may be to impute such a purpose to an Australian lawmaker. But a point will be reached where the law in question is ‘clear and unambiguous’1 … Once that point is reached, subject to any constitutional invalidity, the judge has no authority to ignore or frustrate the commands of the lawmaker. To do so would be to abuse judicial power, not to exercise it. 1.

Bropho v Western Australia (1990) 171 CLR 1 at 17; Wik Peoples v Queensland (1996) 187 CLR 1 at 146–7; Durham Holdings (1999) 47 NSWLR 340 at 353 [44].

[page 83] 2.61 In the WHS area a good example of this principle in operation is the decision in CI and D Manufacturing Pty Ltd v Registrar Industrial Court of New South Wales (1996) 40 NSWLR 1. A company had been acquitted of an offence against the OHS Act 1983 (NSW). On appeal by WorkCover, the Industrial Court of New South Wales had reversed the acquittal and convicted the company of the offence. The New South Wales Court of Appeal overruled this decision of the Industrial Court. Clarke JA said (at 7): The decisions of the Federal Court of Australia in Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978–9) 38 FLR 397 and of the High Court of Australia in Davern v Messell (1983–4) 155 CLR 21, which approved Thompson, make it quite clear that a

fundamental principle applies to the effect that there is no right of appeal by the prosecutor against an acquittal of a criminal charge after a hearing on the merits unless specifically and clearly given by statute. This could be amplified by saying that the rule of statutory interpretation that no statute will be construed as abrogating a fundamental principle of the Common Law unless an intention to do so is clearly expressed applies so that a right of appeal against an acquittal will be found to exist only if the statute conferring appeal powers clearly and unambiguously confers that right. [emphasis added]

The New South Wales Parliament subsequently legislated to overturn the decision in this case, making it ‘clear and unambiguous’ that such a right of appeal had been conferred.42 Note also that in Evans v New South Wales [2008] FCAFC 130, a ground for overturning the restrictive World Youth Day legislation was that it interfered (without explicit parliamentary authority) with a fundamental common law right of ‘freedom of speech’. The development of the ‘principle of legality’ in recent years has been seen by some commentators as problematic. Meagher, for example, in the article noted in the Further Reading list at the end of this chapter, points out that there is a danger of this principle of statutory interpretation ‘transform[ing] a loose collection of rebuttable interpretive presumptions into a quasi-constitutional common law bill of rights’, and a danger that when judges rule on which rights are ‘fundamental’ they may be intruding into the power of parliament to balance various rights of sections of the community. These are issues that will no doubt continue to be debated for some time. Against retrospective operation 2.62 It is presumed that parliament does not intend legislation to operate retrospectively — that is, to make illegal what was previously legal: see, for example, Maxwell v Murphy (1957) 96 CLR 261. But this principle may sometimes be breached, especially when a change in government policy is announced that gives people a

[page 84] financial motive for reordering their affairs. For example, in New South Wales two key pieces of legislation dealing with liability for civil damages were expressed to commence retrospectively, to avoid the problem of litigants rushing the courts to take advantage of the current rules.43 Another example of legislation with a retrospective effect can be found in the transitional provisions transferring jurisdiction under New South Wales WHS law from the Industrial Court of New South Wales to the District Court. Schedule 18B item 4 of the Work Health and Safety Regulation 2011 (NSW)44 provides that if criminal proceedings under the OHSA 2000 were commenced in the Industrial Court between 7 June 2011 and 1 January 2012, in relation to an offence alleged to have been committed after 7 June 2011, then if those proceedings had not been finalised by the Industrial Court before 1 January 2012, they were deemed to be discontinued, and will be dealt with after that date by the District Court.45 This may be seen to be something of a ‘retrospective’ removal of jurisdiction from the Industrial Court. That re-enactment constitutes approval of previous interpretation 2.63 Where an Act has been interpreted in a certain way, and later re-enacted by parliament, there is a (fairly slight) presumption that parliament approved the previous interpretation. The TAB case referred to above (see 2.57) involved some consideration of this rule. This rule was also referred to by the High Court in Zickar v MGH Plastic Industries Pty Ltd (1996) 71 ALJR 32, where Toohey, McHugh and Gummow JJ approved the following passage from Flaherty v Girgis (1987) 162 CLR 574 at 594: Whilst it is true that, where an inference can be drawn from the terms in which subsequent legislation has been passed that Parliament itself has approved of a particular judicial interpretation of words in an earlier statute, a court should adhere

to that interpretation, the difficulty is in discerning the existence of parliamentary approval: see Geelong Harbour Trust Commissioners v Gibbs Bright & Co … Mere amendment of a statute not involving any re-enactment of the words in question could seldom if ever constitute approval of an interpretation of those words.

[page 85] Even re-enactment of the words in circumstances not involving any reconsideration of their meaning, as eg, in a consolidating statute, does not do so: Williams v Dunn’s Assignee …; Melbourne Corporation v Barry. … At most the principle affords a presumption of no great weight concerning the meaning of the words used and cannot be relied upon to perpetuate an erroneous construction … the suggested rule nowadays is little use as a guide and it will not be permitted to prevail over an interpretation otherwise appearing to be correct.

2.64 However, it is interesting to note that despite these qualms the courts continue to apply the presumption in some cases. In Inspector Belley v Freight Rail Corporation [2002] NSWIRComm 281 (Freight Rail Corporation), the question arose whether liability for criminal prosecution had been transferred to a purchaser of the business previously operated by the Freight Rail Corporation. In concluding that when the legislation accomplishing the transfer referred to ‘liabilities’, it intended to refer only to civil, not criminal, liabilities, Haylen J referred in detail to the previous decision of Hungerford J in a case involving similar legislation, WorkCover Authority of New South Wales v Energy Australia (formerly Sydney Electricity) (1998) 85 IR 99 (Energy Australia) (mentioned above at 2.54 in the context of the noscitur a sociis presumption). The legislation dealt with in Energy Australia had been very similar to the legislation in the Freight Rail Corporation, and it was held that where parliament had chosen to use similar words, and where it had already been ruled that those words excluded criminal liability, it was reasonable to assume that parliament approved of that previous interpretation. Haylen J commented (at 62–3): While there might be some validity in the attacks on the presumption based upon the artificiality of presuming Parliament knows and understands the various rulings that courts have made in construing legislation before Parliament re-enacts it, there

is not quite the same strength to that argument where Parliament deals with statutes administered by specialist tribunals or where there is a legislative history of frequent review and amendment. In the present case, there are grounds for considering Parliament’s approach to privatisation legislation as constituting an area where Parliament would more closely scrutinise the form of legislation which had been the subject of rulings by the courts. Although it is accepted that there are differences between the legislation dealt with by Hungerford J in Energy Australia, the basic format of that legislation is repeated in the Sale Act. As earlier referred to … the word ‘liability’ was found in association with the words ‘action, claim or demand’ and thus was held to be a reference limited to civil liability. [emphasis added]

The decision in Freight Rail Corporation may also have been assisted by the fact that, as noted previously (see 2.54, note 39), when parliament enacted the OHSA 2000 it included s 123, which deals with the issue (although in doing so s 123(2) confines ‘transferred criminal liability’ to a successor of a government corporation only if that successor itself is a government corporation, which was not the case here). Despite comments about the limited scope to be given to the ‘reenactment presumption’, it continues to be applied by the courts, especially in the context of specialised legislation which has been interpreted in a particular way by a specialised [page 86] court — see, for example, the decision of the High Court in Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10 at [15]–[16], holding that in interpreting a phrase in the corporations legislation which had been re-enacted after a major amendment, parliament could be presumed to intend the prior interpretation of the law to be continued. While their decision was specifically said not to be an example of this presumption (given that it was not a question of the meaning of a particular word or phrase), the Victorian Court of Appeal referred to a similar general principle in holding in Govic v Boral Australian Gypsum Ltd [2015] VSCA 130 that, when the

Victorian government enacted occupational health and safety regulations without explicitly declaring them to be ‘civilly actionable’, they were impliedly accepting the views adopted by courts on earlier regulations holding them to be a valid basis for a civil action for ‘breach of statutory duty’. (This topic is considered in greater detail in Chapter 6.) The court noted (at [157]): As these regulations are designed to protect the health and safety of employees in the workplace … a presumption arises that a breach of the duties they impose gives rise to a right to sue for damages. That presumption is reinforced by the fact that those duties are in substance the same as the duties previously imposed by the 1999 Regulations, breaches of which for many years have been held to give rise to such a right. [emphasis added]

That legislation does not bind Crown 2.65 In general, it is assumed that legislation does not bind the Crown. But the extent of the evidence that is needed to rebut this presumption has considerably diminished in recent years, so that it is now easier to establish that legislation does bind the Crown: see Bropho v Western Australia (1990) 171 CLR 1; Jacobsen v Rogers (1995) 127 ALR 159. Of course, the legislation may say specifically that it will bind the Crown: see Work Health and Safety Act 2011 (NSW) s 10. Liberal construction of beneficial provisions 2.66 There is a general rule that a ‘beneficial’ provision should be construed liberally — in favour of the person who is supposed to benefit. See Waugh v Kippen (1986) 64 ALR 195; and Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 11 per Clarke JA: … it is well recognized that the [Construction Safety] regulations are to be given a liberal interpretation in favour of the worker.

Strict construction of penal provisions 2.67 As a specific example of the ‘fundamental rights’ rule, a statute imposing a penalty, particularly a jail sentence, will be

construed against the Crown and in favour of the accused, where there is ambiguity: see, for example, Director of Public Prosecutions (DPP) v Serratore (1995) 132 ALR 461. [page 87] There can be some conflict in industrial safety legislation between this principle and the principle mentioned above at 2.66. If a provision imposes a penalty for breach of safety, how can it be both construed liberally to benefit the worker, but strictly to benefit the employer? The clash was evident in Doval: see 2.66. In that case, Kirby J disagreed with the majority of the court by holding that the employer had not breached the relevant regulation. He commented (at 4) that the majority view: … ignores the fact that the subregulation imposes penal consequences for the breach and is therefore to be construed in a way which facilitates practical application by the imposition of clear, ascertainable and reasonably achievable duties.

The High Court suggested, in Newcastle City Council v GIO General Ltd (1997) 149 ALR 623, that this rule is very much a rule ‘of last resort’ these days.46 Use of ‘shall’ and ‘may’ 2.68 In general, legislation assumes that where a power is given, or a duty imposed, by the word ‘shall’, then it is mandatory, and a failure to carry it out may render the act legally invalid. Where ‘may’ is used the person concerned has a choice whether to do it or not. But having stated the general rule, this presumption in particular may be easily overturned. If a court’s jurisdiction is said to rest on the mandatory performance of some action, the courts are fairly ready to say that failure may not destroy its jurisdiction. In Bourne v Murphy (1996) 92 LGERA 329, two judges of the New South Wales Court of Appeal differed on whether ‘may’ was

discretionary or mandatory: see Cole JA (at 349) and Beazley JA (at 365). The question was whether, having found that there were irregularities in a local government election, the court was obliged to dismiss the councillor concerned, or retain some discretion in the matter. In the end the result was the same, because both judges regarded the irregularities as so serious that even if the court still had discretion, it should exercise that discretion by dismissing the councillor. For further discussion of the limited circumstances in which the word ‘may’ imparts an obligation rather than a discretion, see the High Court decision in Samad v District Court of New South Wales (2002) 209 CLR 140; [2002] HCA 24.

Legislative rules for interpretation 2.69 As a number of technical questions of interpretation arise in connection with every statute, parliaments have adopted the approach of putting many of these rules in a special ‘Interpretation’ Act. For example, the Acts Interpretation Act 1901 (Cth) applies to federal legislation, and was one of the very first Acts passed by the Federal Parliament. [page 88] Many of the statutory amendments to the common law rules that have already been discussed were created as a result of similar Acts. It is also worth knowing, however, some of the other topics they deal with. Commencement provisions 2.70 In some jurisdictions, unless a specific commencement date is provided, a statute will commence 28 days after Royal Assent.47 In others, it commences on the day on which it receives

Royal Assent.48 In Tasmania, an Act commences, unless otherwise specified, 14 days after Royal Assent.49 Despite these varying default rules, in most cases an Act will in fact make it clear when it commences by including a specific commencement provision. Gender 2.71 Masculine includes feminine and feminine includes masculine in all jurisdictions.50 Number 2.72 The provisions that relate to gender generally also provide that singular includes plural and vice versa.51 These provisions were referred to in our discussion of Szabo: see 2.50. Personality 2.73 An incorporated body is usually deemed to be included in any reference to ‘person’.52 This very important provision is why a company, as well as an individual [page 89] person, may be convicted of an offence against, for example, the Work Health and Safety Act 2011 (NSW). Time 2.74 There are various provisions that deal with time. One of the more interesting is that an Act commences on the first moment of the day on which the commencement provision operates.53 In Re Flavel (dec’d) (1916) SALR 47, it was held that an estate duty provision which had been assented to by the

Governor-General at 10.00 am, applied to the estate of a person who had died at 7.45 am that morning.

Using ‘extra-legislative’ materials 2.75 Finally, one of the issues that has concerned commentators for a long time is whether a court can refer to matters outside the Act itself, such as the reports of law reform bodies or debates in parliament, to determine the intention of parliament. Traditional approach 2.76 The approach in previous years was that such materials were not to be admitted. One argument was that it would prolong trials greatly if all this extra material was open to be admitted; another was that individual speeches in parliament might not represent the will of the whole parliament. Modern approach 2.77 While a certain increased willingness to consider outside material was developing in the courts, the real innovation came with statutory change. In 1984, s 15AB was inserted into the Acts Interpretation Act 1901 (Cth). This section allows extrinsic material to be used in clearly defined circumstances: to confirm the ordinary meaning of the Act; where the Act is ambiguous; and where the ordinary meaning leads to a ‘manifestly absurd or unreasonable’ result.54 These circumstances, however, must be clearly present before the court is authorised to refer to the material. 2.78 For example, in Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416, the High Court

refused to allow extrinsic material where there was no ambiguity in the statute. [page 90] The High Court also issued a warning in Re Bolton; Ex parte Bean (1987) 162 CLR 514 that even if these materials are used, what the court must give effect to are the words contained in the Act itself. There was an extensive discussion of these issues in Harrison v Melhem [2008] NSWCA 67, where Spigelman CJ commented (at [12]) that: Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, “capable of assisting in the ascertainment of the meaning of the provisions” within s 34(1) of the Interpretation Act 1987. I only refrain from using the word “never” to allow for a truly exceptional case, which I am not at present able to envisage.

Still, when used with these constraints in mind, the provision has become a useful addition to the resources that a court uses in interpretation. In particular, the minister’s second reading speech, which sets out the overall policy of a bill, has proved useful in interpretation. In Newcastle City Council v GIO General Ltd (1997) 149 ALR 623, for example, the court relied extensively on both the parliamentary memorandum and the Law Reform Commission Report which lay behind the provision that was under interpretation. In a decision noted above (see 2.43), Cahill v New South Wales (Dept of Community Services) (No 3) [2008] NSWIRComm 123 at [235]–[237], Boland J used the parliamentary discussion of s 8 of the OHSA 2000 (NSW) to confirm the view — reached from a consideration of other sources — that the provision imposed an ‘absolute’ obligation on employers (a matter we will return to briefly in Chapter 7). In Director of Public Prosecutions (DPP) v Downer EDI Works Pty Ltd

and Roads Corporation t/as VicRoads [2015] VSCA 287 (noted previously) the court referred back to parliamentary documents, such as the Explanatory Memorandum dealing with specific provisions of the roads legislation, to assist it in coming to the view that a particular provision which was said to over-ride the OHS Act 2004 (Vic) was only applicable to civil actions, not criminal prosecutions — see the discussion at [81]–[89]. In terms of the Work Health and Safety Act 2011 (NSW), to take another example, no doubt reference will regularly be made to the Reports of the National Inquiry noted in Chapter 1. ______________________________

Answers to Stop and Think questions Note that not all the ‘Stop and Think’ boxes can be given short answers. However, I have tried to indicate the answers, or directions in which answers might be found, where possible. 2.1 1. Nine (this was ‘Act No 10 of 2011’: see Appendix 6, point 2). 2. 1 January 2012. 3. ‘Providing for uniform laws and protecting the health and safety of workers’ would seem to come pretty close. 4. Part 14 (see the definition of this term in s 4). [page 91]

Further Reading The books noted in the Further Reading list at the end of Chapter 1 all contain important sections on statutes and their

interpretation. Those who are interested in a more extensive discussion of the issues can also consult: S Corcoran and S Bottomley (eds), Interpreting Statutes, Federation Press, Annandale, 2005. D Meagher, ‘The Principle of Legality as Clear Statement Rule: Significance and Problems’ (2014) 36 Sydney Law Review 413 D C Pearce and R S Geddes, Statutory Interpretation in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2011. M Sanson, Statutory Interpretation, Oxford University Press, South Melbourne, 2012.

1.

More recently, after the National Review report and a change of government in New South Wales, s 197A has now been repealed: see Work Health and Safety Legislation Amendment Act 2011 (NSW), Sch 4.13[4]. We will examine these issues in more detail in Chapter 7.

2.

See the amendments made by the Occupational Health and Safety Amendment (Workplace Deaths) Act 2005 (NSW). See, for example, the Marriage Amendment (Marriage Equality) Bill 2015, introduced by the Leader of the Opposition on 1 June 2015.

3. 4. 5.

Constitution Act 1902 (NSW) s 5. For cases on this issue see: Pearce v Florenca (1976) 135 CLR 507; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; Port Macdonnell Professional Fishermens’ Association Inc v South Australia (1989) 168 CLR 340.

6.

At 10. For recent High Court comments reaffirming the doctrine of state parliamentary supremacy (though on other grounds overturning the legislation), see Kable v Director of Public Prosecutions (DPP) (NSW) (1996) 138 ALR 577. Also see Durham Holdings Pty Ltd v New South Wales [2001] HCA 7, discussed previously, for reaffirmation of the unlimited power of the New South Wales Parliament (acting within the Constitution), and Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27, for example, Gleeson CJ at [9]–[10], affirming the same thing for Victoria. See Ha v State of New South Wales; Walter Hammond & Associates v State of NSW (1997) 71 ALJR 1080.

7. 8.

For a detailed suggested list, see R D Lumb and G A Moens, The Constitution of the Commonwealth of Australia Annotated, 5th ed, Butterworths, Sydney, 1995, pp 508– 9. One other example might be the Commonwealth legislation enacted in connection with the Sydney Olympic Games in 2000: see the Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth).

9.

See Chapters 7 and 12 for further discussion on this topic.

10.

See, for example, Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441 at [57] (ACT Same Sex Marriage case). For comment on this case, see N Foster, ‘Unscrambling the Curate’s Egg — The High Court’s ACT Same Sex Marriage Decision’, 2015, . This Act was repealed on commencement of the WHS Act 2011 (Cth): see the Work Health and Safety (Transitional and Consequential Provisions) Act 2011 (Cth) Sch 1.

11.

12.

13.

For a helpful summary of the Work Choices case see J Catanzariti, ‘High Court Tick to Work Choices Further Entrenches the Corporations Power’ (2007) Feb Law Society Journal 50–51. We will discuss the issues relating to the reach of Commonwealth power in this area further in Chapter 7. A Brooks, Occupational Health and Safety Law in Australia, 4th ed, CCH, North Ryde, 1993, at [2304].

14. 15.

Civil Aviation Act 1988 (Cth) and related regulations. See the earlier discussion of the ‘reference of powers’ on corporations law: at 1.60.

16. 17.

Workplace Relations Amendment (Work Choices) Act 2005 (Cth). See New South Wales v Commonwealth of Australia [2006] HCA 52 (Work Choices case).

18.

Most of which commenced operation on 1 July 2009. See, for example, the definition in s 14 of a ‘national system employer’ as: ‘(a) a constitutional corporation, so far as it employs, or usually employs, an individual.’ That the scope (and even the existence!) of this implied freedom remained a matter of some debate within the High Court for some time can be seen from the contrasting decisions of Kirby and Callinan JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63. In that case, where a hidden camera had been used to film the commercial slaughtering of possums, Kirby J held that while Australian law would recognise a right of ‘privacy’ to some extent, that right would be overridden by the implication of freedom of political speech, discussion about animal rights being a ‘political’ matter. Callinan J, by contrast, questioned whether there was such an implied right. The other members of the High Court decided the case (and allowed the film to be broadcast) on other grounds.

19.

20.

21. 22.

23.

See cl 7 of the World Youth Day Regulation 2008 (No 32 of 2008), effective 25 June 2008, which read in part: ‘7(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that: … (b) causes annoyance or inconvenience to participants in a World Youth Day event …’. Clause 7(2) made it an offence to fail to comply with such a direction ‘without reasonable excuse’. See Evans v New South Wales [2008] FCAFC 130. For further comment on this decision, see N Foster, ‘Free Speech and Religious Freedom Even for ADF Members’, Law and Religion Australia, 10 Dec 2015, . Which, since James v Commonwealth (1936) 55 CLR 1, clearly binds the

Commonwealth as well as the states. It has been held that s 92 requires that interstate trade be immune from ‘discriminatory burdens of a protectionist kind’: Cole v Whitfield (1988) 165 CLR 360. 24.

25. 26.

27.

28. 29.

30. 31.

See Street v Queensland Bar Association (1989) 168 CLR 461; and more recently Goryl v Greyhound Australia Pty Ltd (1994) 120 ALR 605: a Queensland provision allowing Queensland residents access to a more generous payment regime for motor vehicle accidents was held to be discriminatory and invalid in denying such benefits to residents of other states. Citing the High Court case of South Australia v Tanner (1989) 166 CLR 161 at 165; 83 ALR 631. For consultation provisions in other jurisdictions, see Legislation Act 2001 (ACT) Ch 5; Statutory Instruments Act 1992 (Qld) Pt 5; Subordinate Legislation Act 1992 (Tas) ss 5, 6 and Sch 1; Subordinate Legislation Act 1994 (Vic) Pt 2. For ‘sunset’ provisions in other jurisdictions, see Statutory Instruments Act 1992 (Qld) Pt 7; Subordinate Legislation Act 1978 (SA) Pt 3A; Subordinate Legislation Act 1992 (Tas) s 11; Subordinate Legislation Act 1994 (Vic) s 5. Inserted by the Statute Law (Miscellaneous Provisions) Act 2010 (No 59 of 2010), Sch 1.27[3], as of 9 July 2010. The former OHS Regulation 2001 (NSW) was repealed by s 267C of the Work Health and Safety Act 2011 (NSW) as enacted. It is a somewhat annoying feature of New South Wales legislative practice that, since the effect of this provision was ‘spent’ once the Regulation and the former OHS Act 2000 (NSW) had been repealed, s 267C itself was automatically repealed (though not, of course, reviving the legislation it had abolished). As a result you will not find it in the usual sources of current law. But it is available in the ‘As Made’ area of the New South Wales legislation website, should you be interested. See C Cook, R Creyke, R Geddes and D Hamer, Laying Down the Law, 8th ed, LexisNexis Butterworths, Australia, 2012, at [9.4]. Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; [1984] HCA 48; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at 651–2 [9] per French CJ and Bell J; [2009] HCA 40.

32. 33.

Marshall v Watson (1972) 124 CLR 640 at 649 per Stephen J; [1972] HCA 27. Western Bank Ltd v Schindler [1977] Ch 1 at 18 per Scarman LJ cited by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115.

34.

Cook et al, note 30 above, at [9.9] list all the relevant state and territory legislation. As well as those noted in the text here, see Legislation Act 2001 (ACT) s 139; Interpretation Act (NT) s 62A; Acts Interpretation Act 1954 (Qld) s 14A; Acts Interpretation Act 1915 (SA) s 22; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation of Legislation Act 1984 (Vic) s 35(a); Interpretation Act 1984 (WA) s 18. A former, differently worded, form of s 15AA required the court to choose one construction that would promote the purpose of the Act, rather than ‘the best’. The new s 15AA was introduced from 27 December 2011 on commencement of the Acts

35.

Interpretation Amendment Act 2011 (Cth). The equivalent provisions in other jurisdictions still follow the older form. 36. 37. 38.

39.

See A MacAdam and T Smith, Statutes: Rules and Examples, 3rd ed, Butterworths, Sydney, 1993, p 347. Now repealed and replaced by the Workers Compensation Act 1987 (NSW). The interaction between parliament and the court’s interpretation of statutes is illustrated in this case by the fact that after this decision the New South Wales Parliament amended the 1987 Workers Compensation Act to clarify that a person who employs even one worker will be regarded as excluded from coverage by the Act: see WorkCover Legislation Amendment Act 1995 (No 89 of 1995) s 3, Sch 1, effective 1 January 1996. To continue the theme of parliament ‘correcting’ the courts, we may note that s 123 of the OHSA 2000 specifically provided that where one government corporation was replaced by another, then proceedings instituted against the former corporation could be continued against the successor. This issue is dealt with now in s 248(6)(b)(ii) of the WHS Act 2011 (NSW).

40. 41.

For further details consult textbooks such as MacAdam et al, note 36 above. However, under the Acts Interpretation Act 1901 (Cth) s 13, ‘all material’ in the Act from beginning to end is to be regarded as ‘part of the Act’ and presumably can be taken into account in interpretation.

42.

In the WorkCover Legislation Amendment Act 1996 (NSW) Sch 2.4. As noted above at note 1, however, the explicit provision allowing appeal from an acquittal, s 197A of the Industrial Relations Act 1996 (NSW), has now been repealed with the commencement of the harmonised legislation. See the Workers Compensation Legislation Further Amendment Act 2001 (Act No 94 of 2001), which received the Royal Assent on 6 December 2001, but s 2(2) of which deemed amendments limiting the right to recover common law damages for workplace injuries to have commenced on 27 November 2001; and the Civil Liability Act 2002 (Act No 22 of 2002), which received the Royal Assent on 18 June 2002 but commenced (for most purposes) on 10 March 2002.

43.

44.

45.

Previously contained in cl 6 of the Work Health and Safety (Savings and Transitional) Regulation 2011 (NSW), which was repealed by Sch 1 of the Work Health and Safety Regulation 2011 on its commencement on 1 January 2012. As we will see in Chapter 7, 7 June 2011 is a significant date because it is when amendments to the OHSA 2000 commenced, changing the nature of the duties under that Act from ‘absolute’ to ‘qualified’ by the addition of the phrase ‘reasonably practicable’. This, together with a change to the duty of company officers under s 26 of the OHSA 2000, was designed to be an ‘early implementation’ of the provisions of the Model Bill.

46. 47.

At 634 n 22 per Toohey, Gaudron and Gummow JJ; at 640 per McHugh J. Acts Interpretation Act 1901 (Cth) s 3A; Interpretation Act 1987 (NSW) s 23; Interpretation Act 1984 (WA) s 20.

48.

Interpretation Act (NT) s 6; Acts Interpretation Act 1954 (Qld) s 15A; Acts Interpretation Act 1915 (SA) s 7; Interpretation of Legislation Act 1984 (Vic) s 11. In

49. 50.

51.

52.

53. 54.

the ACT legislation is ‘notified’, and commences the day after notification: Legislation Act 2001 (ACT) ss 28, 73. Acts Interpretation Act 1931 (Tas) s 9. Acts Interpretation Act 1901 (Cth) s 23; Legislation Act 2001 (ACT) s 145; Interpretation Act 1987 (NSW) s 8; Interpretation Act (NT) s 24; Acts Interpretation Act 1954 (Qld) s 32B; Acts Interpretation Act 1915 (SA) s 26; Acts Interpretation Act 1931 (Tas) s 24A; Interpretation of Legislation Act 1984 (Vic) s 37; Interpretation Act 1984 (WA) s 10. See note 50; the only provisions where a different section deals with the matter from those noted there are: Acts Interpretation Act 1954 (Qld) s 32C; Acts Interpretation Act 1931 (Tas) s 24(d). Acts Interpretation Act 1901 (Cth) s 2C; Legislation Act 2001 (ACT) s 160; Interpretation Act 1987 (NSW) s 21(1); Interpretation Act (NT) ss 17, 24AA; Acts Interpretation Act 1954 (Qld) s 36; Acts Interpretation Act 1915 (SA) ss 4, 26; Acts Interpretation Act 1931 (Tas) s 41; Interpretation of Legislation Act 1984 (Vic) s 38; Interpretation Act 1984 (WA) s 5. For example, Legislation Act 2001 (ACT) s 74; Interpretation Act 1987 (NSW) s 24. For provisions in other jurisdictions to similar effect, see Legislation Act 2001 (ACT) ss 141–143; Interpretation Act 1987 (NSW) s 34; Interpretation Act (NT) s 62B; Acts Interpretation Act 1954 (Qld) s 14B; Acts Interpretation Act 1931 (Tas) s 8B; Interpretation of Legislation Act 1984 (Vic) s 35(b); Interpretation Act 1984 (WA) s 19. South Australia seems to be the only jurisdiction that has chosen not to enact such a provision.

[page 93]

Part 2 WORKPLACE SAFETY AND CIVIL LAW 3. 4. 5. 6.

Workplace Safety and the Contract of Employment Protection of Workplace Safety under Tort Law — Negligence: Duty of Care Protection of Workplace Safety under Tort Law — Negligence: Other Matters Protection of Workplace Safety under Tort Law: Breach of Statutory Duty

[page 95]

3 WORKPLACE SAFETY AND THE CONTRACT OF EMPLOYMENT

Aims The aims of this chapter are: to provide an overview of the common law and statutory rules dealing with the relationship between an employer and an employee; and to indicate the significance of those rules for workplace health and safety.

Objectives After completing this chapter, you should be able to: list the factors which a court will consider in deciding whether a particular relationship is an employment relationship or not; and identify the significance in the workplace health and safety area of the differing obligations and privileges attaching to employment relationships and other contractual relationships in the workplace.

Introduction 3.1 In this book so far we have looked at the sources and nature of law in general in Australia. In this section we start to look more directly at the content of the law. We start with the topic of ‘employment law’ because this forms the fundamental background to the law of workplace health and safety (WHS). It defines many of the legal relationships within the workplace and provides a setting for both the common law and the statutory duties that are imposed by the Work Health and Safety Act 2011 (NSW) (WHSA 2011).

Employment relationship 3.2 The law recognises a special relationship between employer and employee. Previously this relationship was known as the ‘master–servant’ relationship. In accordance with the egalitarian values of our society, this terminology has been changed, and basically the law of master and servant has now become the law of employer and employee. [page 96] Over many years cases have established that certain responsibilities and obligations flow from this relationship. We will see, for example, that at common law: an employer owes a duty of care in the area of negligence to someone who is its employee, along with a number of implied contractual duties (to be discussed below); the employee, similarly, owes certain well-established duties to

the employer; and in addition, an employer can be liable vicariously1 for injury caused to a third party by its employee. 3.3 In addition to the common law consequences of the relationship, a number of statutory schemes are based on the notion of employment: The industrial system, for example, usually operates on the basis that persons covered by awards are ‘employees’: see, for example, the Fair Work Act 2009 (Cth), which in s 11 provides: ‘In this Part, employee and employer have their ordinary meanings.’2 Much of the legislation relating to long service leave, annual holidays, etc relates only to ‘employees’.3 On the other hand, there has been a tendency in recent years to expand the range of legislation to cover people who are not traditionally regarded as employees. We saw an example of this in the case we looked at in Chapter 2, Monier Ltd v Szabo (1992) 28 NSWLR 53,4 where the definition of ‘worker’ was expanded for the purposes of workers’ compensation laws. Much of the legislation in this area deals with both employees and non-employees. In the previous Occupational Health and Safety Act 2000 (NSW) (OHSA 2000), for example, s 8(1) specifically imposed a statutory duty on an ‘employer’ to safeguard its ‘employees’. But s 8(2) of the Act extended that duty to ‘people (other than the employees of the employer)’, ‘while they are at the employer’s place of work’. The distinction between an employee and other types of workers has become increasingly less important for the purposes of workplace safety legislation. Under the WHSA 2011 people who have a duty to have regard for the safety of others in the workplace are often described as ‘person[s] conducting a business or undertaking’ (abbreviated as PCBUs). Those whose safety has to be looked after are described as

[page 97] ‘workers’: see, for example, WHSA 2011 s 19(1). The word ‘worker’ is defined in s 7 of the Act to include employees; however, the definition also encompasses a wide range of other people who would not previously have fallen within that category (such as ‘contractors’, ‘outworkers’ or even ‘volunteers’). Nevertheless, in order to know about the legal rights and obligations of workplace participants it is still important to have an understanding of the common law and other statutory distinctions between ‘employees’ and others. We will be exploring this topic in the rest of this chapter. 3.4 There is one important point to make about the employment relationship: while a company can be regarded as a legal ‘person’ for many purposes, it cannot be an employee. A company can and often is an employer, but the status of ‘employee’ is reserved for ‘natural’ persons — human beings. In the statutory context this was confirmed, for example, in the definition of ‘employee’ in s 4 of the former OHSA 2000, which defined an employee as an ‘individual’. (By contrast, an ‘employer’ was defined as a ‘person’ and, in the technical language of statutes, that implies not only human beings but also companies.)5 Interestingly, on an initial reading, it appears that the WHSA 2011 departs from this principle by defining the word ‘worker’ to mean a ‘person’ carrying out work. However, as historically employees have been defined as individuals, it seems likely that the courts will continue to interpret the word ‘worker’ as referring to individual human beings, rather than to companies. Further support for this view can be found in s 7(3) of the Act, which provides that a ‘PCBU’ can also be a ‘worker’ if the person is an ‘individual’ who carries out work. The purpose of s 7(3) is somewhat obscure. The provision may be designed to ensure that where there is more than one business operating in the one workplace, the individual business operators will owe duties of

care to each other. In any case, the assumption that someone designated as a ‘worker’ will be an ‘individual’ confirms the view taken here that the definitions of ‘worker’ in s 7(1) are intended to be confined to ‘individuals’, and that a company cannot be a ‘worker’ under WHSA 2011. 3.5 Can someone have more than one employer in relation to the same work? Of course someone can work for one employer on one day and for another employer on the next. However, for many years the courts have assumed that there can only be one employer in relation to a particular task performed by one employee. Recently, however, some cases have raised the idea that it might be possible for the one employee to have more than one employer, and for both (or all) of those employers to be vicariously liable for a wrong committed by the employee (for example, an injury to a member of the public). In Canada and the United Kingdom, for example, some courts have clearly found that in some situations there can be joint vicarious liability. In Blackwater v Plint (2005) 258 DLR (4th) 275, the Supreme Court of Canada found that both the Canadian [page 98] Government and the United Church of Canada were vicariously liable for sexual abuse of a child who had been cared for in an institution that they jointly managed.6 In the United Kingdom the English Court of Appeal in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151; [2005] 4 All ER 1181 found that both the traditional employer and a ‘host’ employer were vicariously liable in a workplace injury case.7 This reasoning was accepted in the later case of Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18 but not applied on the facts of the particular case. In an employment case, Cairns v Visteon UK Ltd [2007] ICR 616,

the Employment Appeal Panel noted the decision in Viasystems but concluded that even if it were applicable to a question of vicarious liability, they would not apply the doctrine to an action for ‘unfair dismissal’ by allowing the worker to effectively sue two parties as liable for the dismissal. Peter Clark J commented (at [17]): If the only reason is, as appears to be the argument for the Claimant in the present case, that she would have a better prospect of establishing unfair dismissal against the end-user rather than the agency, then we can see no basis for departing from what has been the common understanding from at least of the judgment of Littledale J in Laugher v Pointer [1826] 5 B&C 547, 558. A servant cannot have two masters.

In another United Kingdom decision, Colour Quest Ltd v Total Downstream UK Plc (Rev 1) [2009] EWHC 540 (Comm), the trial judgment in a case arising from a massive oil refinery explosion in the United Kingdom at Buncefield, Steel J (at [212]) accepted that Viasystems was binding, but found on the facts of the particular case that the employee in question (Nash) had been employed by Total, even though he was directed to work under the supervision of another firm on a day-to-day basis. It was accepted in Various Claimants, the Catholic Child Welfare Society v The Institute of the Brothers of the Christian Schools [2010] EWCA Civ 1106 at [45] and [73] that Viasystems stood for the proposition that there can be ‘dual concurrent vicarious liability’. This decision was upheld in Catholic Child Welfare Society v Various Claimants [2012] UKSC 56. 3.6 In Australia, however, the courts have not supported the proposition that there can be more than one employer. There were some comments in support of the idea (which were obiter dicta rather than essential to the decision) in the decision of the Australian Industrial Relations Commission in Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152.8 There was also some discussion in Costello v Allstaff Industrial Personnel (SA) Pty Ltd & Bridgestone TG Australia Pty Ltd [2004] SAIRComm 13 at [124]–

[135], and in the decision of Collier J in Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803. [page 99] But the best view of the law in Australia is that the previous common law position should be maintained. There is High Court of Australia authority in support of the traditional view in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626. This was an unusual case involving ‘deemed’ vicarious liability for the actions of a ship’s pilot being attached to the owner of the ship (as opposed to the employer of the pilot), but some of the comments of the court are clearly in favour of the fact that there could only be one employer at a time: see, for example, Wilson J (at 646): [W]e have a situation in which the biblical truth that ‘no man can serve two masters’ may not be without relevance.9

In Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250, the decision of the New South Wales Court of Appeal was to the effect that this binding High Court authority means that a person can have only one employer at one time: see Leeming JA (at [25]–[26]). The court stated that it would not follow the opposite result reached in the United Kingdom in Catholic Child Welfare Society v Various Claimants [2012] UKSC 56 noted above. 3.7 The position adopted by the United Kingdom courts appears to overturn assumptions that have been made in this area for many years, and it raises a number of problems. For example, how can someone be regarded as an employee of X when they have never consciously entered into a contract with X? If someone is an employee of both X and Y, then should both those parties have been organising deductions of income tax or superannuation?

Of course a statute may ‘deem’ people to be employees for specific purposes. In particular, in some Australian states there were previously ‘deeming’ provisions in some occupational health and safety (OHS) statutes which deemed employees of contractors to be employees of the principal in some cases — for example, the provisions considered in Moore v Fielders Steel Roofing Pty Ltd [2003] SAIRC 75 and R v ACR Roofing Pty Ltd [2004] VSCA 215.10 It is important to note, however, that these kinds of provisions will only operate for the purposes of the specific legislation concerned; they will not necessarily mean that a person is deemed to be an employee for the purposes of civil liability, for example. In general, however, outside the area of specific statutory ‘extensions’ of the definition, it seems that the question of whether someone is an employee or not should not be regarded as variable with the purposes for which the question is asked. The status of ‘employee’ is what one might call a legal ‘building block’ on which other concepts depend, and it would create far too much uncertainty for this status to be indefinitely malleable in different contexts. An interesting example illustrating that to be an ‘employee’ for one purpose will usually flow over into other contexts is the decision in Tomlinson v Ramsay Food [page 100] Processing Pty Ltd [2015] HCA 28, by the majority (at [10]), where the court accepted that in the absence of some special provision, the meaning of the word ‘employee’ would be the same under legislation regulating the bringing of a common law claim and legislation regulating recovery of wages.

Distinguishing employees from independent contractors

3.8 How, then, does a court distinguish between an employee and an ‘independent contractor’? One characteristic which both share is that they are engaged under a contract, a legally binding agreement to do work of some kind, in return for some form of payment. For this reason it might be logical to review the legal principles governing the existence of contract before considering the specific characteristics of the ‘contract of employment’. However, like most textbooks in the area, we will approach the matter slightly out of logical order. The principles of contract law will be considered at 3.41ff, below. 3.9 When describing a paid worker for legal purposes, the choice is effectively between categorising them as an ‘employee’ or someone who is called an ‘independent contractor’. These are the two mutually exclusive ‘pigeonholes’ that have been devised by the common law; someone who works under a contract is either one or the other. As North and Bromberg JJ put it in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37 at [173]: The divide between employee and independent contractor appears to be binary. In Australia, no third category has yet been recognised by the law to describe the worker and none is apparent. That means that the worker will either be an employee or an independent contractor.

Over the years a number of tests have been developed to resolve the question of whether a person is an employee or an independent contractor.11 One way the courts have expressed the difference between the two is by saying that the question is whether the person works under a ‘contract of service’ or a ‘contract for services’. A ‘contract of service’ is another way of describing the employment contract: the person has contracted to serve their employer. A ‘contract for services’, on the other hand, is an agreement to provide specific services, rather than to generally provide ‘service’. The language is derived in great part from the language used in the past to describe the master and servant relationship.

Over the years the approach of the courts in determining whether or not a person is an employee has varied. One factor that is consistently relevant is the ‘control’ factor: that is, how closely does the employer control the work of the worker? For some years there was a suggestion that an alternative test might be used — the ‘organisation’ test. [page 101] However, the current Australian approach is authoritatively set out in the two High Court cases of Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Stevens) (see 3.13 below) and Hollis v Vabu Pty Ltd (2001) 181 ALR 263 (Hollis v Vabu).

‘Control’ test 3.10 In Australian law the primary test for determining whether or not a person is an employee is still the ‘control’ test. However, ‘control’ in this sense does not simply mean ‘setting the agenda’ for work to be done, as all workplace contracts will involve this issue. The basic question which is asked is: does the alleged employer have overall control, not only of what work is to be done, but also of the manner in which the work is to be done? One of the earliest statements of this rule was in R v Walker (1858) 27 LJ MC 207 at 208: … the difference between the relations of master and servant and of principal and agent is this: A principal has the right to direct what the agent has to do; but a master has not only that right, but also the right to say how it is to be done.

In many cases this control will be exercised on a day-to-day basis. However, the courts have held that it is not necessary that this control actually be exercised; the right to exercise such control is also sufficient to satisfy this test.

3.11 This test was examined and upheld by the High Court in Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561.

Stop and Think 3.1 The case involved an injury occasioned by trapeze artists in the course of performing. What aspects of the work of trapeze artists do you think might have indicated that they were not sufficiently under the ‘control’ of the circus owners for them to be considered ‘employees’?

The question in this case was whether two trapeze artists working at a circus were employees or independent contractors. It was argued that in most of the aspects of their work they were not usually subject to the control of the circus owner. In particular, the circus owner did not have the power to control the central feature of their work, which was the way they performed their act on the trapeze. In its judgment the High Court set out two rules that have since been generally adopted. The first is that control need not be actually exercised over every part of the job, so long as the overall right to control is maintained. The second is that control over matters that are ‘incidental and collateral’ to the main job can be sufficient to establish the employment relationship. Dixon J referred to control over related matters such as the timing of performances and rehearsals, costumes and safety measures to show that the right of control existed in this case. [page 102] The Supreme Court of Canada (SCC) considered the issue of

‘control’ in its decision in McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39. Here an ‘equity partner’ in a law firm claimed that he was an ‘employee’ of the firm because he wanted to challenge the firm’s rule that partners had to retire at 65 (and local discrimination legislation meant that employees could challenge these sort of retirement provisions). The SCC ruled that as a ‘managing partner’ he was not subject to the control of the other partners, that he in fact exercised a high degree of control himself, and thus could not be regarded as an employee. The United Kingdom Supreme Court looked at a similar case in Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32, although it dealt with a statutory provision allowing a ‘worker’ to bring a whistle-blower claim, and ‘worker’ was defined to go beyond the straightforward category of ‘employee’. The majority noted, in the course of the proceedings, that there were English common law decisions holding that a ‘partner’ could not be an ‘employee’. (The word ‘partner’ in these decisions refers to the technical meaning of the term as one of a group of persons carrying on a business in common with a view of profit: see, for example, Partnership Act 1892 (NSW) s 1.)

‘Organisation’ test 3.12 In England the courts began to develop a different test called the ‘organisation’ test. Lord Wright in a Privy Council appeal from Canada said that a possible test would be: … whether the party is carrying on the business, in the sense of carrying it on for himself or on his own behalf, and not merely for a superior.12

This test was taken up by Lord Denning in the English Court of Appeal in Bank Voor Handel en Scheepvart NV v Slatford [1953] 1 QB 248 at 295. It examines whether a person is an employee by asking whether they are a part of someone else’s ‘organisation’ or working essentially ‘for himself’. The test was subsequently refined

by the Court of Appeal in Hall (Inspector of Taxes) v Lorimer [1994] 1 All ER 250 and is still applied by the United Kingdom courts.13 While this test has been referred to from time to time in Australia, it is fairly clear that at the moment it is not a part of the law of Australia. The current approach is that adopted in Stevens, as refined in Hollis v Vabu: see the discussion at 3.13. However, it is very interesting to note that in Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19, Kirby J hinted that the test may need to be reconsidered (at [69]): (3) The organisation test issue: Mrs Sweeney did not seek to revive Lord Denning’s attempt to explain the ambit of vicarious liability for persons working for and within the organisation of the defendant’s business.1 There are some similarities between the

[page 103] expression of this test (‘part and parcel of the organisation’) and other attempts to explain vicarious liability by reference to an analysis of ‘enterprise risk’ (for example, as considered by the Supreme Court of Canada2). This Court rejected the organisation test in Stevens.3 Whilst there may be more to the notion than some critics have suggested, it was not revived in argument in this appeal. Any reconsideration of the organisation test must therefore await another day. 1.

See, for example, Stevenson Jordan & Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101 at 111; Bank Voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 at 295.

2.

Bazley v Curry [1999] 2 SCR 534 at 548. See also Lepore (2003) 212 CLR 511 at 612–13. (1986) 160 CLR 16 at 26–9, 35–6. Cf Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395 at 402.

3.

Stevens approach 3.13 The main case which is still referred to today in Australian law on the issue is Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. Mr Stevens, a truck driver, and Mr Gray, a bulldozer driver, were working in a logging operation. Gray injured Stevens

while Stevens was attempting to help him load the truck. Stevens argued that Gray was an employee of the company in charge of the logging operation, Brodribb, and hence Brodribb were ‘vicariously’ liable for his injury. The facts of the case were that both Stevens and Gray provided and maintained their own equipment; set their own working hours (although were expected to deliver two loads a day); and payment was made according to the volume of timber logged, not the hours worked. Brodribb gave no guarantee of work; Brodribb’s supervisor did not direct them in the performance of their work (but did tell them where to work); and Brodribb did not deduct PAYE tax. In addition, and of particular note, Gray’s son sometimes worked as the bulldozer driver in place of his father. The court then had to resolve the tricky question of whether Gray was an employee or not. (The case also raised the question as to whether Stevens was an employee, as if so arguably Brodribb would have owed him a higher ‘duty of care’. We will return to this aspect of the decision in Chapter 4.)

Stop and Think 3.2 Before reading on, answer the following questions: 1. Why did the court need to decide the question whether the people involved in the accident were employees or independent contractors? 2. What facts in the situation do you think would have been most significant for the court in coming to its decision?

3.14 Mason J’s judgment represents the majority approach of the court. He held that although control is a key factor in deciding whether or not there is an employment relationship, it is not the

only factor that will be considered. The court will take into account various other criteria (or ‘indicia’) such as: [page 104] mode of remuneration (how someone is paid); provision and maintenance of equipment (whether they supply and maintain it, or the ‘boss’ does); obligation to work (do they have to work or can they choose each time whether to work or not?); hours of work and provision for holidays; deduction of income tax; and whether or not work is delegated (that is, can the worker ask someone else to do the job, or part of the job, for them?). To these criteria we may add one other that may be relevant, where all other factors are evenly balanced: whether the parties themselves describe the relationship as employment or as an independent contract. In the end the court held that Stevens and Gray were contractors, not employees. Their ability to organise their own work, supply their own equipment, and in particular the fact that they could ‘delegate’ their work to someone else on occasions, meant that they were contractors. 3.15 Following Stevens there have been many cases which have tried to resolve this issue of whether someone is an ‘employee’ or not. In Re Municipal Association of Victoria (1991) 31 AILR ¶163 (Family Day Care Workers case), for example, the question was whether family day care workers who looked after children in their own homes were employees of the local councils who paid them, or whether they were independent contractors. A feature of the work was that the local councils exercised a high degree of control over the way that the care was provided.

However, a number of other factors led to the Industrial Relations Commission finding that the workers were not employees: the control was more directed to standards than the way the care was provided; workers were paid according to the number of hours worked; care was provided in private houses using the workers’ own equipment; and workers set their own hours of work. Aufgang v Kozminsky Nominees Pty Ltd [2008] VSC 27 is a more recent example of a detailed application of the ‘indicia’, to a contract entered into by one medical practitioner with another. Smith J held that, on the facts, the doctor was an employee (at 41): Weighing up the relevant factors the evidence clearly supports the conclusion that Dr Aufgang was an employee of the defendant. The few matters relied upon by the defendant, either separately or in combination, are at best neutral from its points of view as to whether Dr Aufgang was an ‘employee’ or ‘independent contractor’. It is true that he had a considerable degree of discretion in the way he did his work but we are here dealing with the engagement of a professional person, a doctor, and one would not expect there to be any interference or direction as far as the carrying out of the work with particular patients is concerned. Against that it is clear, in particular, that:

[page 105] Dr Aufgang was expected to work for the practice and no other and out of the premises supplied by the defendant and use the facilities provided by the defendant. Dr Kozminsky on behalf of the defendant and Kozminsky Pty Ltd claimed the right to decide who did what in the practice and to give directions and the right to exercise control when that was necessary in his view. Whatever goodwill was generated by Dr Aufgang, it was generated for the two companies. He had no rights in any goodwill he generated. Plainly, in my view, Dr Aufgang was working for the business of the defendant and Kozminsky Pty Ltd and not for his own business. Plainly, he was not carrying on a business of his own. He was an employee of the defendant.

Ewart v Caruso [2013] WASCA 266, which is about a painter injured while painting a house, provides another good example of how the factors are applied: at [29], [33]–[34].

Development of Stevens approach in Vabu cases 3.16 A series of cases involving a courier firm, Vabu Pty Ltd (trading as ‘Crisis Couriers’ for part of the relevant time), led to an important refinement of the law in this area by the High Court. The company engaged both car and bicycle couriers, and the cases raised the issue of employment status for both taxation and civil liability purposes. The first case, the decision of the New South Wales Court of Appeal in Vabu Pty Ltd v Commissioner of Taxation (1996) 96 ATC 4898; 33 ATR 537 (Vabu taxation case), found that drivers retained by the company were independent contractors, despite the fact that they were required to accept the work allocated to them by the company, to perform it as the company directed, to wear uniforms, to be neat and tidy, to replace their vehicles when the company considered them unsatisfactory, to observe a starting time and to work a prescribed number of hours. Meagher JA commented (at 538): The cumulative effect of these conditions certainly gives the Company a deal of control over its courier. However, a man may supervise others without becoming their employer.14

3.17 In the next case, Hollis v Vabu Pty Ltd (t/as Crisis Couriers) [1999] NSWCA 334, the court held that a bike courier employed by the company was not an employee, and hence the courier company was not vicariously liable when a courier ran over a pedestrian. The facts were that Mr Hollis had been knocked over while crossing the footpath in the Sydney CBD by a bicycle courier, who simply rode on after a brief apology. Mr Hollis sustained serious injury to his leg. The courier, whose identity was still unknown at

the time of the hearing, was wearing a uniform with ‘Crisis Couriers’ clearly written on it. [page 106] Vabu Pty Ltd conducted their courier business under this name. Mr Hollis sued Vabu as ‘vicariously liable’15 for the actions of the courier. An initial problem Mr Hollis faced was that in the earlier decision mentioned above — the Vabu taxation case — the New South Wales Court of Appeal had found that car, motorcycle and bicycle couriers engaged by Vabu were independent contractors, not employees, for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth). As a result there was at one stage of the hearing a concession by Mr Hollis’ counsel that the bike courier was not an employee. He then had to argue that there were circumstances where a principal should be vicariously liable for the actions of a contractor.16 The court rejected the claim, holding by a 2:1 majority that the couriers were contractors and that no vicarious liability arose: see Hollis v Vabu Pty Ltd (t/as Crisis Couriers) [1999] NSWCA 334. 3.18 This decision was, however, overturned on appeal to the High Court in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 181 ALR 263 (Hollis v Vabu). By a majority of 5:2 the High Court held that the courier was an employee of Vabu, not an independent contractor. As a result Vabu was vicariously liable for the courier’s negligence.17 The majority judgment provides a sustained analysis of the criteria for distinguishing an employee from a contractor. The majority judgment first distinguishes the Vabu taxation case: see [21]–[22]. This is done on the basis that the decision was itself a ‘borderline’ decision, and that one of the factors that weighed with the Court of Appeal in that case was that the couriers from whom evidence was taken were all motor vehicle

and motorbike couriers, who had to provide their own vehicles ‘at considerable expense’. In the case under consideration by the High Court in Hollis v Vabu the court concluded that the provision of bicycles was not such an expense. The majority considered the terms of written contracts which were signed by the couriers, but made the important comment (at [24]) that: It should be added that the relationship between the parties, for the purposes of this litigation, is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to

[page 107] establishing ‘the totality of the relationship’ between the parties; it is this which is to be considered.18

The court also considered that Mr Hollis’ concession as to the legal status of the courier in the Court of Appeal need not be regarded as binding, as it was a conclusion of law, not a concession as to disputed facts, and allowing the issue to be reopened would not prejudice the other party: at [31]. In considering the issue of vicarious liability the majority reaffirmed the traditional rule that a principal is not automatically liable for wrongs committed by an independent contractor. However, in the course of discussion they focused on a particular characteristic of an employee — that the employee ‘represents’ the employer’s business to the community. The court stated (at [42]): In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise. [emphasis added]

3.19 While the notion of ‘control’ will still remain central to the tests for discrimination between employees and contractors, the

High Court decision in Hollis v Vabu (see [43]–[45]) indicates that since the decision in Stevens, the concept of control appropriate for modern Australian society may have developed further. Applying the principles noted in 3.18 to the bike couriers, the majority ruled that they were employees. Matters that tended to establish this were: There was no ‘skilled labour’ involved: at [48]. The couriers themselves had no effective control over the way in which they worked: they had a strict starting time, and evidence suggested they could not have delegated their work, or worked for another firm: at [49]. The fact that the couriers wore uniforms supplied by Vabu, and worked under its direction, indicated to the public that they were ‘representatives of the company’: at [50]. ‘The effect of Vabu’s system of business was to encourage pedestrians to identify the couriers “as a part of [Vabu’s] own working staff”’: at [52]. Holding Vabu liable for the couriers’ behaviour was likely to have the useful deterrent effect of making Vabu pay more attention to the risks of this behaviour: at [53]. Vabu tightly controlled the finances of the couriers, and its refusal to grant ‘leave’ meant that the couriers had limited opportunity to work for anyone else: at [54]–[55]. The fact that the couriers provided their own bikes was not decisive, as the bikes could be used for other purposes, and in any case were not very expensive: at [56]. [page 108] In the end, on all indications of ‘control’ Vabu were in complete control of the work and the way it was done. The couriers were not assisting in some other work that Vabu carried out; for all intents they were Vabu to the public, and hence they were accurately described as Vabu’s employees: at [57].19

3.20 From one perspective the decision of the majority might be characterised as simply an application of the settled ‘indicia of employment’ approach set out in Stevens: see 3.13. However, it could be argued that a close reading of the majority judgment reveals this is something of a development in this area. The reference to the policy considerations behind the doctrine of vicarious liability indicates a willingness to allow those considerations to inform the decision about employment status in individual cases. The notion of ‘representation’ now seems to play a more important part in the decision, as does the possible deterrent effect on future behaviour that would flow from the decision. It would seem to be unlikely that a court could find in the future that a closely controlled system of essentially unskilled labour, where the public would view those engaged as ‘representing’ the company concerned, could be classified as anything other than an employment relationship.20

Labour hire firms 3.21 A particular and increasingly common example of the difficulties that the question can involve is the issue of the status of workers placed in employment by so-called ‘labour hire’ firms. These firms are companies that arrange to find workers to be placed in workplaces on a casual basis. The attraction of the arrangement is that the person receiving the benefit of the services (the ‘host’ employer) is not required to arrange for tax, superannuation, workers’ compensation insurance and other employment details. The question remains, however: is the worker an employee? And if so, who is the worker’s employer? An early example of a case in which the court was required to grapple with this issue was Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 99 ALR 735 (Odco), a decision of the Federal Court. In that case an organisation called ‘Troubleshooters’ made casual labourers available for work on building sites. While the workers concerned ‘looked like’ employees, under

their agreement with Trouble-shooters they were paid an hourly rate; did not receive holiday pay, long service leave or sick pay; [page 109] no PAYE tax was deducted; and they supplied their own equipment. There was also no obligation to take any job offered by Trouble-shooters. The trial judge, Woodward J, found the workers were independent contractors, not employees. The Full Court upheld his decision. They noted that the fact that the agreement between Trouble-shooters and the workers specifically called them independent contractors, while not conclusive, was one of the facts that supported this conclusion. 3.22 It is important to note, however, that Odco is a very special case involving characteristics that are not present in much of the labour hire market. In Damevski v Giudice [2003] FCAFC 252, the Full Court of the Federal Court was called on to examine a case where the parties had entered into arrangements which were designed to create what was called an ‘Odco’-type situation but found they had failed to do so. In that case Mr Damevski had worked as an employee cleaner for the firm Eudoxos for three years, when the firm informed all its workers that they would now be required to work as contractors rather than employees. The workers were all asked to sign documents terminating their employment with Eudoxos, and to enter into an arrangement with a company called MLC Workplace Solutions. A supervisor verbally assured the workers that ‘nothing would change’ in terms of their work arrangements, and this was indeed the case. They continued to be supervised by the same people, to do the same work, and to wear Eudoxos uniforms. The only change that occurred was that the workers received their pay from MLC, but MLC only passed on the money after Eudoxos had

given it to them. The rate of pay was determined completely by Eudoxos, and Eudoxos behaved in such a way that it was clear that it felt free to hire and fire the workers. As a result the Full Court found that, despite the document of resignation that Mr Damevski had signed, Eudoxos remained at law the employer and Mr Damevski remained an employee. The court ruled that what was important was not the ‘labels’ that the parties attached to the arrangements, but the reality. And the reality was that Eudoxos remained in control of the workers, who seemed to all outward appearances to be Eudoxos’ employees. In terms of formal contractual theory the court ruled that the contractual relationship between Eudoxos and Mr Damevski could be implied from their behaviour. MLC’s only role was the administrative one of passing on money. 3.23 It is interesting to note that the English courts have also been willing to imply a contract of employment in some ‘labour hire’ cases where a formal document is not present: see, for example, Franks v Reuters Ltd [2003] EWCA Civ 417; Brook Street Bureau (UK) Ltd v Dacas [2004] EWCA Civ 217 (Dacas), followed in James v London Borough of Greenwich [2008] EWCA Civ 35 (James).21 These cases were discussed and [page 110] applied by the Victorian Court of Appeal in Homecare Direct Shopping Pty Ltd v Gray [2008] VSCA 111 (Homecare) in holding that Ms Gray, who had been engaged as a ‘distributor’ of Homecare products under a written contract with an ‘area manager’, Mr De Groot, was in fact working under an implied contract of employment with the supplier, Homecare. The need to focus on the reality of the relationship between the parties, rather than on the formality of what has been expressed in the documents, can be seen in the decision of the United

Kingdom Supreme Court in Autoclenz Ltd v Belcher [2011] UKSC 41. Workers who provided car-cleaning services for motor retailers under contract to Autoclenz had been required to sign contracts that spelled out that they were ‘independent contractors’, and which included a number of other contractual terms clearly designed to ensure that they would not be regarded as employees. One of the terms allowed them to ‘delegate’ their work to someone else. However, the Supreme Court upheld the finding of an Employment Tribunal that the clauses that gave the appearance of ‘independent contracting’ did not in fact represent the intentions of the contracting parties. The tribunal was entitled, Lord Clarke said (at [38]), to disregard the terms of the written documents, which were inconsistent with the reality of the working relationship. Concerns about possible abuse of power in connection with the designation of employees as independent contractors, in circumstances where that does not represent the reality of the legal situation, led to the introduction in recent years of provisions in the Fair Work Act 2009 (Cth) prohibiting such ‘sham arrangements’: see Div 6 of Pt 3-1 of the Act which bears that heading. The decision of the High Court in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45 illustrates the operation of those provisions. Cleaners who had worked for the Quest South hotel for some years were told that under new arrangements they were to be engaged by a firm called Contracting Solutions Pty Ltd, and their labour would be provided to the hotel as ‘independent contractors’. The High Court summarised (at [10]) the situation as follows: In fact, Ms Best and Ms Roden continued to perform precisely the same work for Quest in precisely the same manner as they had always done. In law, they never became independent contractors. At the time Quest represented that they were performing work for Quest as independent contractors of Contracting Solutions, they remained employees of Quest under implied contracts of employment.

The High Court held that, even where the cleaners had been misled about their contractual relationship with a third company,

the hotel had committed a breach of s 357(1) of the Act by wrongly informing them that they were contractors, and not employees. 3.24 Crawley and Stewart have both discussed the issues concerning labour hire firms in a very comprehensive and clear way.22 In his article Crawley refers to the South Australian case of Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438. There a ‘labour [page 111] hire’ firm was found to be the employer of the worker, Mr McCann, who was sent to work for the firm, Mason & Cox. Some of the matters that led the court to conclude that an employment relationship existed were regular pay based on a timesheet, deduction of PAYE tax, superannuation and workers’ compensation insurance. In addition, the worker was required to consult with the agency before accepting other employment. All these factors led to a finding that, despite the lack of control exercised by the agency, the agency was the worker’s employer.23 Ironically, perhaps, the result was that when he was injured, the worker was able to sue the company, Mason & Cox, for whom he did the daily work. This was because South Australian legislation abolished common law actions against ‘employers’; but since the agency was the employer, Mason & Cox were not, and so could be sued.24 In this book we will see a number of times that the South Australian legislation in particular has led to some very interesting decisions on the question of who is an employer and the duty of care owed by non-employers.25 3.25 In Workcover Authority of New South Wales v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565 Kirby ACJ commented (at [46]): Recent decisions of this Court show that determining … whether a person was a worker or an independent contractor involve[s] judgment. There are no hard and

fast rules … The test to be applied by Australian courts is stated in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. It represented something of a retreat from the previous reign of the ‘control test’. That test was found to be insufficiently flexible for the variety of employment relationships in the ‘modern post industrial society’. There ‘technical developments have meant that a person so engaged often exercises a degree of skill and expertise inconsistent with the retention of effective control by the person who engages him’. See Brodribb, 28n. [There are] a number of features of employment today which explain the way in which the law has changed in its attitude to the ‘control’ criterion. They include the increase in social, economic and industrial egalitarianism; the increase in highly skilled employment activities stimulated by the advances of technology; the increase in part time work; the changing organisation of employment and the growth of legal provisions for industrial democracy.

There is a very extensive discussion of the law relating to ‘labour hire’ and employment in the judgment of Conti J in Wilton & Cumberland v Coal & Allied Operations Pty Ltd [2007] FCA 725. In that case workers who were engaged by a labour hire firm to work in coalmines claimed that they were really employees of the mines rather than the labour hire firm. After a lengthy review of the facts and previous [page 112] authority, Conti J ruled that there was no employment relationship with the mines. For one thing, there was no ‘intention to create legal relations’ (see 3.49 for an outline of this essential element of a contract), and there had been no discussion of terms or conditions with the mines — all such matters had been dealt with by the labour hire firms.26 A useful practical list of factors considered by the courts on this question can be found in Abdalla v Viewdaze Pty Ltd t/as Malta Travel [2003] AIRC 504 at [34]. In the following extract, where the judgment is not clear as to whether the factor points to employment or an independent contract, indications to that effect have been inserted, either by highlighting (bold for employment, bold italics for independent contract) or an added comment.

(4) Consideration should then be given to the various ‘indicia’ identified in Brodribb and the other authorities bearing in mind that no list of indicia is to be regarded as comprehensive and the weight to be given to particular indicia will vary according to the circumstances. Where a consideration of the ‘indicia’ points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. For ease of reference we have collected the following list of ‘indicia’: Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work and the like.1 Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of independent contract2. While control of this sort is a significant factor [it] is not by itself determinative3. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where their work involves a high degree of skill and expertise4. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.5 “The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.”6 “[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”7

[page 113] Whether the worker performs work for others (or has a genuine and practical entitlement to do so) The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, if the individual also works for others (or the genuine and practical entitlement to do so) then this suggests independent contract. Whether the worker has a separate place of work8 and/or advertises his or her services to the world at large. (NF: Indicative of independent contract)

Whether the worker provides and maintains significant tools or equipment9. Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.10 Whether the work can be delegated or subcontracted.11 If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor12. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally. Whether the putative employer has the right to suspend or dismiss the person engaged.13 Whether the putative employer presents the worker to the world at large as an emanation of the business.14 [Possible indication of employment.] Typically, this will arise because the worker is required to wear the livery of the putative employer. Whether income tax is deducted from remuneration paid to the worker.15 Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.16 Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance. Whether the worker is provided with paid holidays or sick leave.17 [Indicative of employment.] Whether the work involves a profession, trade or distinct calling on the part of the person engaged.18 Such persons tend to be engaged as independent contractors rather than as employees.

[page 114] Whether the worker creates goodwill or saleable assets in the course of his or her work.19

Whether the worker spends a significant portion of his remuneration on business expenses.20 [Both above indicative of independent contract.] 1. 2.

Brodribb. Flows from the reasoning of Mason J in Brodribb at p. 24.

3. 4.

Brodbribb esp Mason J at p. 24. Zuijs v Wirth Bros. Pty. Ltd (1955) 93 CLR 561 at p. 571.

5. 6.

Hollis v Vabu (2001) 207 CLR 21. Humberstone v Northern Timber Mills (1949) 79 CLR 389 at p. 404 per Dixon J.

7. 8.

Brodribb per Wilson and Dawson JJ at p. 36. Brodribb per Wilson and Dawson JJ at p. 37.

9. Brodribb per Mason J at p. 24 10. Hollis v Vabu (2001) 207 CLR 21 at [47] see also [58]. 11. Brodribb per Mason J at p. 24. 12. Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539; AMP v Chaplin (1978) 18 ALR 385 at p. 389. 13. Brodribb per Wilson and Dawson JJ at p. 36. 14. Hollis v Vabu at [50]. 15. Brodribb per Mason J at p. 24; Wilson and Dawson JJ at p. 37. 16. cf Brodribb per Mason J at p. 24. 17. as to paid holidays, see Brodribb per Mason J at p. 24. 18. Brodribb per Wilson and Dawson JJ at p. 37. 19. ibid. 20. ibid.

This list is not exhaustive. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.27 (All bold emphasis has been added to the quotation by the author.)

Emerging new test? ‘Working in one’s own business’ 3.26 Some decisions in recent years have suggested that there may be an emerging additional test over and above the Stevens approach outlined at 3.13. In Wesfarmers Federation Insurance Ltd v Wells t/as Wells Plumbing [2008] NSWCA 186, Basten JA, after referring to some of the above cases, noted (at [33]–[34]):

In Marshall v Whittaker’s Building Supply Company [1963] HCA 26; 109 CLR 210 at 217, Windeyer J noted, in a passage cited with approval in the joint judgment in Hollis v Vabu at [40], that the definition of “worker” in the Workers’ Compensation Act 1912–1960 (WA) depended upon “the distinction between a servant and an independent contractor”. His Honour continued: That is rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own.

[page 115] That fundamental difference suggests that underlying various indicia relevant to whether a person is an employee or an independent contractor is the question whether the person is in fact running his or her own business. It will be unlikely that a person is an independent contractor if he or she has not established a business or taken any of the steps required by law in that regard. [emphasis added]

In that case the worker was a plumber, but the court found that he was not ‘running his own business’, as he was not licensed to work on his own, and had not obtained an ABN or his own insurance. A number of the other indicia noted above led to the conclusion that the worker was an employee: at the relevant time he was not working for anyone else, and the employer exercised a ‘significant level of control’ over his work: at [64]. While it was relevant that the worker was not necessarily ‘obliged’ to turn up for work, this factor alone (a lack of ‘mutuality of obligation’) did not override the importance of the other factors, especially the question of control: at [77]. 3.27 It is unclear yet whether this is a new test or simply one way of applying the Stevens factors. A similar approach, however, was adopted more recently by Bromberg J in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366; (2011) 206 IR 252. That case involved the employment status of a number of translators who were available ‘on call’ for legal or medical purposes. Bromberg J said (at [207]):

The majority in Hollis (citing Windeyer J) said the distinction between an employee and an independent contractor is ‘rooted fundamentally’ in the fact that when personal services are provided to another business, an independent contractor provides those services whilst working in and for his or her own business, whereas an employee provides personal services whilst working in the employer’s business: at [40]. Unless the work is being provided by an independent contractor as a representative of that entrepreneur’s own business and not as a manifestation of the business receiving the work, the person providing the work is an employee: Hollis [39], [40], [47], and [57] and see Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at [30]– [32]. [emphasis added]

His Honour then offered the following test (at [208]): Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows: Viewed as a “practical matter”: (i) is the person performing the work an entrepreneur who owns and operates a business; and, (ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work? If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.

[page 116] In the circumstances, as the majority of the interpreters concerned had no ‘business of their own’, they were to be regarded as employees under the common law. For another decision reviewing the criteria, see ACE Insurance Ltd v Trifunovski [2013] FCAFC 3,28 where a number of sales representatives were in fact employees, despite their contracts stating otherwise, mainly due to the high degree of control exercised by the main company, and the fact that none of the workers were conducting ‘their own business’.29 The move toward adopting a test for employment of asking whether a worker was ‘in their own business’ or not can also be seen in the judgment of North and Bromberg JJ in Fair Work

Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37 (Quest South Perth), where this approach is discussed: at [177]– [184]. (See also (at [192]) a summary of the usual characteristics one would expect in an ongoing ‘business’.) However, it is not clear whether this focus on the ‘business’ question is yet fully accepted as a way of resolving the question of whether a worker is an employee or an independent contractor. In the later decision of a differently constituted bench of the Full Court of the Federal Court, in Tattsbet Ltd v Morrow [2015] FCAFC 62, Allsop CJ (at [3]) said that it was ‘unnecessary’ to decide whether the Quest South Perth approach was correct, while Jessup J (at [61]–[62]) commented: … [H]is Honour ultimately saw the question as one which involved, in effect, a dichotomy between a situation in which the putative employee works in the business of another and a situation in which he or she conducts his or her own business as an “entrepreneur”. To view the matter through a prism of this kind is, however, to deflect attention from the central question, whether the person concerned is an employee or not; or, perhaps, as Mason J put it in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, 28, to “shift the focus of attention” to a no less problematic question. As Buchanan J put it in ACE Insurance, “[w]orking in the business of another is not inconsistent with working in a business of one’s own” [2013] FCAFC 3; (209 FCR 146, 182 [128]). On the other hand, if the putative employee’s circumstances exhibit the characteristics of a business, that will undoubtedly be a matter proper to be taken into account in determining the question at hand, so long as sight is not lost of the question itself. The question is not whether the person is an entrepreneur: it is whether he or she is an employee. After we had reserved on this appeal, the Full Court handed down judgment in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37. North and Bromberg JJ (with the agreement of Barker J) gave detailed attention to the question whether the cleaners were employees or independent contractors, in the course of which their Honours held that the answer to any such question would be yielded by first answering the question whether the workers in question were engaged in the conduct of their own businesses. While I would pay the greatest respect to this recent,

[page 117] considered, judgment of the Full Court, the fact is that their Honours’ observations

were, relevantly, by way of obiter. Furthermore, the present case is, on the facts, very different from Quest.

On appeal from the Quest decision, in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45, the High Court overturned the decision of the Full Court on an unrelated point of statutory interpretation, and did not address the question whether the ‘business’ test should be adopted as an alternative to the longstanding ‘indicia’ approach, or not. So it has to be said that the matter is still uncertain.30 Still, it would seem to be sensible to address the question whether a worker was running their own business, or not, as a part of the overall analysis of the issue, along with the other indicia set out in Stevens and previously discussed.

Change of employment status over time 3.28 Complex issues are sometimes raised when it appears that a party has changed their employment status from one category to another. Groavac v Pearce McMaugh Homes Pty Ltd [1998] NSWSC 66 provides a good example of the way that in any one particular case factors that might seem to point clearly to a status of, for example, an independent contractor, may be outweighed by other factors. In that case, despite the fact that the worker concerned provided his own tools, had tax deducted as a contractor, and was not entitled to holiday pay or sick pay, he was found to be an employee. The judge found that these factors were ‘remnants’ of his previous working relationship, which had changed over time from contractor to that of employee. On the other hand, in Rauk v Transtate Pty Ltd; Restile Pty Ltd v Transtate Pty Ltd [2000] NSWSC 1020 the opposite result followed. Mr Rauk, who had previously been employed by Transtate, formed a company called Restile of which he was the sole employee. Transtate then contracted with Restile to provide Mr Rauk’s services to do precisely the same work he had previously been doing. While Mr Rauk remained under the direction of Transtate,

that company stopped deducting income tax, stopped paying superannuation and other benefits, and stopped declaring the money paid to Restile as wages. In turn, Restile started deducting income tax and paying for workers’ compensation insurance. O’Keefe J found that Mr Rauk was no longer an employee of Transtate, despite the fact that his working conditions had not changed. His Honour commented (at [21]): Where two parties have solemnly and formally terminated the relationship of employer and employee and have genuinely sought to substitute a contractual

[page 118] relationship, as in the present case, it would need very unusual circumstances to infer, contrary to the intention and actions of the parties, that the relationship of employer and employee nonetheless continued.31

3.29 It is important to note that in all these cases the court may sometimes be influenced by the purpose for which the question of employment status is to be resolved. Is it a question of taxation? (In which case the worker will sometimes be keen to prove a contractor status.) Or is it a case of workplace injury? (In which case the worker will sometimes be eager to be seen as an employee.)32 On appeal in Transtate Pty Ltd v Rauk [2002] NSWCA 222, the New South Wales Court of Appeal (Powell and Santow JJA, Mathews AJA) upheld the decision of O’Keefe J and held that Mr Rauk was not an employee of Transtate. Powell JA, who delivered the judgment of the court, spent some time dealing with the factual and evidentiary issues. The employment issue is also discussed: at [74]–[79]. However, since his Honour refers to a legal concept not discussed in this chapter so far, it is appropriate to provide some background information. 3.30 One initial point worth noting is this. The decision in Hollis v Vabu was cited by counsel for Transtate as authority for

the fact that the mere description by the parties of their relationship as an ‘independent contract’ did not automatically mean that was what it was: Transtate Pty Ltd v Rauk (at [75]). One argument made on behalf of Mr Rauk was that letters exchanged between him and the company identified him as a contractor rather than an employee. Powell JA pointed out that this was true, but that a crucial difference between Hollis v Vabu and the case he was considering was that in this case a separate contract was entered into with a separate legal entity, the company Restisle.33 As this contract was not a ‘sham’, it was not possible that there could be an ordinary employment relationship between Transtate and Mr Rauk, as there was not even a contract between them.34 However, Powell JA went on to consider whether, even if there was no direct contract between Mr Rauk and Transtate, it could be argued that Mr Rauk had been ‘lent’ to Transtate by Restisle. In certain circumstances some older cases have referred to an employee of X, who does work for Y, as being an employee ‘pro hac vice’ of Y. [page 119] The Latin phrase literally means ‘for this occasion’, and refers to the possibility of a temporary transfer of the employment contract from one employer to another. While the doctrine has not been discussed very often in the last few years, it has been raised not only in Transtate but also in the judgment of Ashley J in Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194 (Deutz).

Can there be ‘temporary transfer’ of employment? 3.31 In Deutz, Ashley J gives a very helpful and detailed analysis of the history and development of the doctrine of ‘temporary employee transfer’: at [93]–[122]. Effectively, his Honour distinguishes two possible situations. One is where the loaned

employee has injured a third party, and the issue raised is whether the temporary ‘employer’ or the general employer should be held vicariously liable for the injury. The second is where the loaned employee has been themselves injured, and the question is whether the temporary or the general employer should provide compensation for the injury. In the first situation — which involves the question of vicarious liability — authority establishes that the courts may sometimes regard the temporary ‘employer’ as the worker’s employer pro hac vice and impose vicarious liability for the employee’s actions on the temporary employer.35 This will exonerate the general employer from its usual obligations. However, it has been held that there is a very heavy burden of proof on the general employer in these circumstances, and that what must be shown is that there is a transfer of the right, not merely to say what work should be done, but also the way in which the work must be done. Ashley J (at [100]) cites the following helpful passage from the judgment of Lord Denning MR in Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 446–7: The supposed transfer, when it takes place, is nothing more than a device — a very convenient and just device, mark you — to put liability on to the temporary employer; and even this device has in recent years been very much restricted in its operation. It only applies when the servant is transferred so completely that the temporary employer has the right to dictate, not only what the servant is to do, but also how he is to it … Such a transfer rarely takes place, if ever, when a man is lent with a machine, such as a crane or a lorry: nor when a skilled man is lent so as to exercise his skill for the temporary employer. In such case the parties do not contemplate that the temporary employer shall tell the man how to manipulate his machine or to exercise his skill. But a transfer does sometimes take place in the case when an unskilled man is lent to help with labouring work: see Garrard v AE Southey & Co [1952] 2 QB 174; [1952] 1 TLR 630; [1952] 1 All ER 597. [emphasis added]

On the other hand, in the second situation, where the issue is who should bear responsibility for a personal injury suffered by the worker, Ashley J in Deutz (at [115]) points out that the courts have sometimes been prepared to find a relationship of employment pro hac vice on a lesser degree of proof, to ensure that a worker will not

[page 120] miss out on compensation.36 However, as his Honour comments, ‘a claim can be mounted in such a case without resort to the relationship of employer and employee’. A duty of care can clearly be seen to arise simply from the fact of supervision, without the need to create an artificial ‘employment relationship’, as indeed O’Keefe J found at first instance in Rauk.37 3.32 Powell JA in his conclusion on the issue in the Rauk appeal (at [79]) ruled that it was possible in accordance with the second class of cases noted above to regard Mr Rauk as the employee pro hac vice of Transtate so that Transtate owed him a relevant duty of care. But in answering the question as to whether the limits to recovery of damages imposed by the Workers Compensation Act 1987 (NSW) Pt 5 applied to the case, the answer was that Mr Rauk was not an ‘employee’ of Transtate in the general sense. 3.33 A decision in a case stemming from a disastrous explosion in the United Kingdom illustrates how the courts may still occasionally have to grapple with these issues. In Colour Quest Ltd v Total Downstream UK Plc [2009] EWHC 540, Steel J made a number of rulings following what he described as the ‘largest peacetime explosion in Europe’, which occurred at the Buncefield Oil Storage Depot in Hemel Hempstead, Hertfordshire on 11 December 2005.38 It was conceded by the companies involved that the accident had been partly caused by the negligence of one of the operators, a Mr Nash, in allowing a tank to overfill. However, one of the issues at the trial was to determine who employed Mr Nash. Two options were available: the company Total, which was his ‘formal’ employer; or the ‘joint venture’ partnership between Total and Chevron known as Hertfordshire Oil Storage Ltd (HOSL) (in which Total had only a 60% share). Determining who, in fact, the employer was, developed into a

very complex issue. Steel J gave a lengthy account of the various contractual arrangements in place between the parties over many years, which were complicated by the fact that there was a joint venture agreement in place in relation to another refinery/storage site at Avonmouth, near Bristol, and that some of the terms of the relationships between the parties at the Buncefield site had been simply adopted from this previous agreement. In the end, one of the most significant documents recorded that a company called Fina (predecessor of Total) would ‘second’ its staff to the joint venture company HOSL. But as Steel J noted (at [75]), the crucial question was what this term actually meant: [page 121] Quite what “secondment” entailed was a matter of controversy. In particular whether it meant a temporary transfer of “employment” (Total’s case) or a temporary transfer of “role or place of employment” (Chevron’s case).

3.34 Total’s case, in other words, was that any employee ‘seconded’ to the joint venture thereafter became an employee of HOSL; whereas Chevron’s case was that such an employee remained an employee of Total/Fina, but was simply performing work on the site managed by HOSL (that is, a situation similar to a standard ‘labour hire’ arrangement). Total argued that in the circumstances of this case, Mr Nash had been temporarily ‘transferred’ as an employee to the joint venture HOSL, under the doctrine of employment pro hac vice. Steel J (at [207]) adopted the House of Lords decision in Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 to rule that the essential issue in determining whether there had been a temporary transfer of employment was: … the identity of the person who has the right to control the employee’s method of work: that is to say not the nature of the work but the manner in which it was to be undertaken.

After an exhaustive review of the available information and documents, Steel J concluded (at [310]–[313]) that Total, and Total alone, were not only Mr Nash’s employer on paper, but also in practical terms were in control of the tank-filling operation: All the staff at the HOSL site were engaged and paid by Total. They were all subject to Total’s promotion and disciplinary arrangements. Their place of work was allocated by Total. All these matters were undertaken without any discussion with let alone approval of the HOSL board. All instructions relating to the safe operation of the Buncefield site were promulgated by Total in accord with standards adopted by Total for all terminals which it regarded as being operated by Total. It was Mr White who was responsible for identifying tank filling as a critical task and creating any necessary work procedure. These were to be audited every 18 months by Total head office staff. I am satisfied that Total had control of tank filling operations … I conclude that Total has failed to discharge the burden of establishing that HOSL was responsible for the negligence of Mr Nash.

The final conclusion was put in this way, because the existence of the admitted contract of employment meant that Total bore the ‘heavy burden’ of establishing that Mr Nash had become, pro hac vice, an employee of HOSL.39 3.35 While the doctrine of employment pro hac vice is clearly a part of the common law, there may be some doubt whether it serves much purpose nowadays. In the first [page 122] class of cases there is a very heavy burden of proof that must be discharged to shift vicarious liability from the general employer to the hirer.40 (In Deutz the facts were that the employee had caused substantial property damage on the premises of the hirer. Ashley J held that the general employer had not discharged the heavy onus it bore to establish a transfer of employment to the hirer. The general employer remained vicariously liable for the damage caused by its employee.)

In the second class of cases it seems to be simpler to analyse the duty of care as one that is separate from, but similar in content to, the duty owed by a true employer to a true employee. The question of what duty is owed to different parties in the workplace will be revisited in Chapter 4.

Other issues to be considered 3.36 United Construction Pty Ltd v Birighitti [2003] WASCA 24 dealt with the question whether even the mutual agreement of the parties will always result in a change of employment status. An employee at one stage agreed with his employer to operate as a ‘partnership’ with his wife, and then later reverted to receipt of wages. The court held that even where there had been a clear intention at one point that the relationship should be one of independent contract rather than employment, the ultimate issue was a question of fact for the court to decide. Anderson J put it this way (at [13]): Whilst the parties may have genuinely expressed an intention in one part of their contract to enter into a relationship of principal and independent contractor and may have genuinely desired to do so the question remains whether in point of law they succeeded in doing so. That involves a consideration of all of the terms of the arrangement, not just the declaration by the parties that their relationship is one thing or the other. It is the effect of the arrangement as a whole which is decisive and if the effect of the arrangement as a whole is to create (or in this case maintain) the relationship of employer and employee then a statement that the relationship is to be that of principal or independent contractor is of no effect.

On the other hand, in Personnel Contracting Pty Ltd v CFMEU [2004] WASCA 312 (a case involving the jurisdiction of an Industrial Tribunal), the court held that, where other factors are evenly balanced, the fact that parties use the language of ‘independent contract’ may tip the balance in favour of such being recognised. 3.37 In Australian Air Express Pty Ltd v Langford [2005] NSWCA 96, a delivery driver engaged by AAE was injured by an employee

forklift driver. The driver argued that he was an independent contractor, and hence not subject to strict limits on damages imposed on employees by the Safety, Rehabilitation and Compensation Act 1988 (Cth), [page 123] which applied because AAE was a Commonwealth authority. The court found that the driver was indeed a contractor rather than an employee. Two factors which weighed heavily on the ‘contractor’ side of the line were that the driver provided his own, expensive, equipment (the truck);41 and that he was entitled under his arrangements with the company to delegate his work to someone else.42 On the other hand, the contrasting decision in Farmakis v WorkCover/Mercantile Mutual Insurance [2005] SAWCT 40, in which it was held that an owner/driver was an employee, illustrates that the resolution of each case requires a careful consideration of the particular facts. 3.38 In Plexvon Pty Ltd (in liq) v Brophy [2006] NSWCA 304, the injured worker had agreed to work for Plexvon but had then been told that the contract would be entered into with his personal company, Bamoragreen Pty Ltd. The evidence was that he was treated by Plexvon as if he were a Plexvon employee: Plexvon provided his tools, defined his hours of work and paid for his insurance, and he was supervised in a detailed manner on a daily basis by a Plexvon employee. Handley JA ruled that in the circumstances the worker was an employee of Plexvon, and his compensation for injury ought to be assessed under the Workers Compensation Act 1987 (NSW). In Victorian WorkCover Authority v Game [2007] VSCA 86, Mr Game was a member of a partnership that ran a bricklaying business. On the occasion in question, however, he had been

employed to dig some trenches for footings for a wall when another worker failed to appear at work. The court held that on this specific occasion, rather than conducting his own business, Mr Game had been engaged for the purpose of the employer’s business. He was using tools it supplied, and subject to its direction, and hence the trial judge in the case had good reasons for finding that he was an ‘employee’ at the time of the accident in question. In Golden Plains Fodder Australia Pty Ltd v Millard [2007] SASC 391, the Full Court of the Supreme Court of South Australia had to rule on the issue of which of two companies involved in running a business was the employer. The court upheld the decision of the trial judge that Mr Millard was not employed by Golden Plains, but by a related company called Macpri Pty Ltd. Documents indicated that Macpri had been described as Mr Millard’s employer by the company in many official documents over a number of years, and hence the court ruled that the intention of the parties should be given effect. They reaffirmed (at [33] ff) that the overall circumstances of the relationship will be considered, with weight being given to matters such as the description used in documents, although no one factor would be final. [page 124] 3.39 In Commissioner of State Revenue v Mortgage Force Australia Pty Ltd [2009] WASCA 24, the question was whether ‘consultants’ employed by mortgage brokers were employees or not (for payroll tax purposes). The following passage of the judgment (at [109]) is a good review of the relevant factors: In my opinion, when all of the competing and, in some instances, conflicting features of the relationship between the parties are viewed and weighed in their totality they militate decisively in favour of the conclusion that the consultants were independent contractors and not employees. The following factors are of particular significance in arriving at this conclusion: (a) The agreement between the parties that the consultants would be independent

contractors. This appears to be a genuine statement of their intention. … (b) In the present case, less weight should be given to those provisions of the Deed of Appointment and the Consultancy Agreement which confer on MFA or MFS the capacity to control … This is because the capacity to control appears to have been directed at protecting the goodwill of MFA’s business; in particular, the relationship between MFA and the financial institutions, and the goodwill attaching to the “Mortgage Force” name and logo. A capacity to control for this purpose is not inconsistent with the consultants having the status of independent contractors. (c) The obligation of the consultants, at their own expense, to provide their own motor vehicles, mobile telephones and pagers (and, in some cases, their own laptops or personal computers), subject to any agreement which may be made in a particular case for reimbursement by MFA or MFS of expenses legitimately incurred in providing the services. A motor vehicle, mobile telephone, pager and laptop or personal computer comprised the substantial majority of the equipment required by the consultants to perform their services. (d) The entitlement of the consultants, subject, relevantly, to the written approval of MFA or MFS, to appoint a “sub-agent” in his or her place for a significant period, and the contractual provisions to which I have referred relating to subagents and their appointment. See Stevens (26, Mason J), (38, Wilson and Dawson JJ); Australian Air Express Pty Ltd v Langford [2005] NSWCA 96; (2005) 147 IR 240 [56]–[60] (McColl JA, Ipp and Tobias JJA agreeing). (e) The absence of any entitlement to annual leave, sick leave, long service leave, paid overtime, superannuation contributions, worker’s compensation coverage or other insurance coverage of any kind, paternity or maternity leave or any similar leave. (f) The power of MFA or MFS to terminate the engagement of a consultant, at any time and without the consultant being in breach of his or her engagement, on two weeks’ written notice (under the Deed of Appointment) and four weeks’ written notice (under the Consultancy Agreement). [emphasis added]

3.40 There is also a very detailed review of the relevant law in the decision of the Administrative Appeals Tribunal in Roy Morgan Research Pty Ltd v Commissioner of Taxation [2009] AATA 702 that interviewers engaged to conduct surveys on behalf of the Roy Morgan company were employees rather than contractors, and hence superannuation payments were due. [page 125] The decision of Adonovski v Park-Tec Engineering Pty Ltd [2009]

NSWCA 305 illustrates the difficulty of pinning down out the precise identity of an employer when multiple firms are involved. Mr Adonovski claimed that he was employed by Barbeques Galore (BG) rather than Park-Tec, which was a crucial issue due to the fact that he had filed his claim against BG within the limitation period, but would be out of time if he tried to sue Park-Tec. He was found to be employed at BG (see [62]–[75]), for a number of reasons, including that a BG director signed his termination letter and BG issued his pay slips, and even the Park-Tec manager was unsure as to who employed him. Mr Andonovski later, however, successfully pursued action against Park-Tec as occupier of the premises of which the incident occurred.43 Andrew Stewart discusses many of the issues raised here and suggests a sensible reform — the development of a ‘standard’ statutory definition of employment that could be used across a range of statutes.44

Contract law: overview 3.41 As noted previously, we need to also briefly discuss the general principles of the law of contract, which underpins the entire employer–employee relationship.

What is a contract? Definition 3.42 It is important to stress that a contract is not simply (or even always) a piece of paper, but rather is an ‘enforceable bargain’. Any agreement between two people that the law will enforce is a contract, whether or not it is in writing: A “contract” is a promise, or set of promises, which the law will enforce.45

In the case of the contract of employment, often the contract will not be spelled out in detail in any one document, if it is written anywhere. Nevertheless, where the other elements are

present an offer of a job concluded by a handshake is just as binding as a long written document. What are the elements of a binding contract? They may be summarised as: offer, acceptance, consideration, intention to create legal relations, capacity and legality.46 [page 126]

Forming a contract: prerequisites Offer 3.43 Legally speaking, an offer is an indication that a person will enter into an enforceable agreement to do something, if the offer is accepted. The key point to note here is that an offer, once made, opens the way for another person to conclude a contract and establish legally binding obligations. Some common uses of the word ‘offer’ are not technical legal uses. For example, a ‘special offer’ sign in the window of a department store does not amount to an ‘offer’ in this sense, since even if you enter the shop, the store still reserves the right not to serve you if they have run out of stock, or for any other legitimate reason. In the area of employment, then, an advertisement in a newspaper seeking applicants for a job does not normally amount to a binding offer: even if only one applicant turns up, the prospective employer has the choice to accept or reject that applicant. Acceptance 3.44 Second, as well as a valid offer, there must be an acceptance of the offer that is in accordance with the offer. In other words, if someone offers you a job at $500 a week and you

say, ‘Okay, $600 a week, that’s a deal’, there will be no contract. In that situation the courts regard what you have said as a ‘counteroffer’, which the other person is then free to accept or reject. When does acceptance take place, and the contract spring into existence? The general rule is that an offer is accepted at the moment when the person who made the offer receives the communication of the acceptance. This is obvious when the parties are face-to-face, but is also applicable in cases of longdistance communication by instantaneous methods such as telephone or fax: Reese Bros Plastics Ltd v Hamon-Sobelco Aust Pty Ltd (1988) 5 BPR 11,106.47 3.45 There is one exception to this rule, where the parties have agreed that acceptance may be by post, called the ‘postal acceptance rule’: Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of the offer, the acceptance is complete as soon as it is posted.48

However, the rule sometimes leads to strange results: for example, if an offer of employment is made by mail to both A and B, with the intention that the first to [page 127] accept will get the job. In this case, if the job is accepted by A by a letter of acceptance posted on 1 May, but is accepted by B by telephone on 2 May, then A should get the job, even if their letter did not arrive until 3 May. As a result the courts recently have tended to confine the rule very strictly to cases where no other factors imply that acceptance should have been in a different manner: The application of [the rule] was limited to cases in which by reason of general usage

or the particular relations between the parties or the terms of the offer itself, the acceptance of an offer by posting was authorized.49

3.46 Questions are sometimes raised about the application of the ‘postal acceptance’ rule to contracts negotiated by email. Hill has argued very persuasively that since email is really these days a form of ‘instantaneous communication’, like the fax, the usual rule should apply, and a contract that is negotiated by email is only concluded when the offeror has actually received the email acceptance, not when it is sent.50 As to determining when an email is ‘received’, there may still be some room for debate. However, for the purposes of New South Wales law, the Electronic Transactions Act 2000 (NSW) s 13A provides: Time of receipt 13A(1) For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication: (a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee, or (b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both: (i) the electronic communication has become capable of being retrieved by the addressee at that address, and (ii) he addressee has become aware that the electronic communication has been sent to that address. (2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.

[page 128]

This means that if you are negotiating by email then arguably the moment of receipt is when the message enters your ‘in-box’ (by whatever name) regardless of whether or not you check it every day.51 For decisions to this effect, see Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123 and Murphy v State of Queensland (Darling Downs Hospital and Health Service) [2015] QIRC 129. Consideration 3.47 The third major element of a valid contract is what is called ‘consideration’. Australian law will generally only enforce agreements that have been paid for in some way, rather than voluntary promises. The major exception to this rule is in the area of what is called a contract ‘under seal’; this is an agreement in writing, signed by the party to be bound, attested by a witness, that is expressed to be ‘sealed’ and ‘delivered’.52 A ‘contract under seal’ may also be called a ‘deed’, a ‘covenant’ or a ‘specialty’. The defining characteristic of these agreements is that, in contrast to a ‘simple’ contract, no consideration is necessary. However, apart from this type of contract, other contracts require some sort of price to be paid. This price is called ‘consideration’. 3.48

What is ‘consideration’? According to Carter and Harland:

Consideration is some act or forbearance involving legal detriment to the promisee, or the promise of such an act or forbearance, furnished by the promisee as the agreed price of the promise.53

The courts are generally reluctant to inquire into the precise match between the different obligations under a contract. There is no rule at common law that a bargain must be fair, but simply that something must be paid. The rule is that consideration must be of some value (it must be ‘sufficient’) but not necessarily of the same value as that which is provided on the other side (that is, it need not be ‘adequate’). So a binding agreement may be made

where a nominal sum of $10 supports a major undertaking on the other side. Apart from very unusual cases, consideration must always be something either in the future, or else something which has just been provided in acceptance. An ordinary contract of employment, for example, involves two promises: a promise by the employer to pay wages, and a promise by the employee to work for the employer. At the time the contract comes into existence both those promises relate to the future, but they are ‘good’ consideration. [page 129] The lack of consideration, in this sense, in arrangements for voluntary work, is what leads to people who work as volunteers not being regarded as ‘employees’. In Drzyzga v G & B Silver Pty Ltd (1994) 10 NSWCCR 191, for example, Mr Drzyzga had been receiving casual work from time to time from a meat carter. On the day in question he had not been offered a job, but had asked if he could attend to learn the route in case in future he was offered a job. During the deliveries he was injured. He was unable to recover workers’ compensation, because the Compensation Court held that there was no contract. Truss J commented that there was no ‘mutuality of obligation’, which, in employment cases, is another way of referring to ‘consideration’.54 The court in Zaronias v Papaiani [2002] NSWCA 207 upheld a finding by the trial judge that the worker was a volunteer when he was killed. Mr Zaronias had been employed in casual work from time to time at a particular worksite, but on the day in question he had been told not to turn up. However, he did arrive at the worksite, though late in the morning, and without being invited started helping with some digging. The supervisor told him he was not needed. Unfortunately, a nearby wall fell on him a few

minutes later. The court said, however, that it was clear there was no contract in force on that day. Intention to be bound 3.49 The fourth major element that must be proved for there to be a binding contract is an intention to be legally bound. In Balfour v Balfour [1919] 2 KB 571 at 578–9, Atkin LJ said: … there are agreements between parties which do not result in contracts within the meaning of that term in our law … they are not contracts, and they are not contracts because the parties did not intend that they should be attended by legal consequences.

In Balfour the agreement in question was an undertaking by a husband to a wife, entered into while they were married. The question will be resolved by a court using an ‘objective’ test, not simply a ‘subjective’ one: however strongly held a party’s private opinion may be that they had no intention to be legally bound, if the words used, the circumstances of the case, the effect on parties, and the subsequent conduct of the parties are such that a reasonable person would conclude there was such an intention, then they will be held to the promise. [page 130] 3.50 To assist in resolving these questions the courts traditionally developed certain ‘presumptions’. A rebuttable presumption is a rule of evidence: in some situations a court is bound to find that something is true, unless evidence to the contrary is presented, sufficient to ‘rebut’ the presumption (that is, show it to be untrue). For example, in criminal law, there is a presumption that the accused is innocent; this can only be rebutted by evidence showing their guilt ‘beyond reasonable doubt’.

In the area of contract law, the view has been taken in the past that there is a ‘rebuttable presumption’ that arrangements between close family members (husband–wife, parent–child, siblings), or in a purely social setting, are not intended to create legal relations. Evidence establishing that in fact there was such an intention (taking into account the factors mentioned above) may rebut this presumption. It has also been argued that there is a ‘rebuttable presumption’ that arrangements of a commercial nature between unrelated parties are intended to create legal relations. Again, the presumption may be rebutted by evidence to the contrary. 3.51 Some examples may help to clarify the way the rules work. In the area of contracts of employment the issue may arise in a family business, where, for example, children work with their father. Is the arrangement intended to be a legally binding relationship? In the case of Bradley v Bradley (1978) AILR ¶168,55 a family hotel business went bankrupt. One of the sons sought an order from the court that he was entitled to arrears of wages as an employee (which would have meant that he received virtually the whole amount remaining after creditors had been paid). On the facts the court held that he had not been regarded as employed under a legally binding contract of employment. In Williamson v Suncorp Metway Insurance Ltd [2008] QSC 244, a father who, while helping his son in his business, fell off a roof, was held not to be an ‘employee’ as there had been no intention to create legal relations (despite an informal arrangement where the father was occasionally paid some money when the business was profitable). In Brejwo v Public Trustee [2002] NSWCA 115, an unusual claim that a contract existed was rejected on similar grounds. There it was claimed that the father of a minor who was receiving regular payments from the Public Trustee following the settlement of a damages claim made by the minor, was ‘employed’ by the Public

Trustee. The Court of Appeal rejected the claim on a number of grounds, one of which was (at [14]): … there is no evidence that the husband and the Public Trustee intended to enter into a contract or any other legal relationship. On the evidence, the husband continued to provide his services for his daughter within the family relationship because of his natural love and affection.

In Ziberoski v R & J Hill Investments Pty Ltd [1995] IRCA 203, an arrangement whereby a 13-year-old boy worked casually in a video store in return for free videos was held not to be intended to create legal relations. Presumably the age of the employee and the slightly unusual nature of the remuneration contributed to the finding. [page 131] In the High Court case of Dietrich v Dare (1980) 30 ALR 407, an offer was made to a handicapped man of a painting job on a ‘trial’ basis. The court found that the offer was made on the basis that there was no obligation on the man to work, and as a result there was no contract. 3.52 Outside the family and domestic situation, however, it will usually be held that work done for someone else that was paid for was done pursuant to a contract. In Re McGee; Inquiry into Elections for Office in Transport Workers’ Union (1992) 41 IR 27 the judge held that casual help supplied to a truck driver which was paid for by ‘slabs of beer’ was performed under a contract. This then qualified the person concerned to be regarded as ‘employed within the industry’. However, this is not always the case. In Andreevski v Western Institute Student Union Inc [1994] IRCA 88, the payment made to the editor of a student magazine, described as an ‘honorarium’, was held not to constitute a contractual relationship, especially in the context of other voluntary work performed by undergraduates.

Even being provided with accommodation and meals, for example, will not be enough to make someone an employee if there has been no intention to create a legal relationship. This was the situation in Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197. There the claimant, Mr Brown, was injured while working as a volunteer at ‘Teen Ranch’, a non-profit Christian organisation that ran camps for teenagers. He was provided with meals and accommodation, but was paid no wages. The court held that there was no legally binding contract, as there was no ‘intention to be legally bound’. As a result Mr Brown could not claim workers’ compensation. In Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201, teachers who worked at a religious school were found to be ‘volunteers’ and hence not to be employees.56 3.53 Having described the traditional approach to presumptions, it might be wise to note that in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 (Ermogenous) the High Court suggested that it is not always appropriate to use these presumptions. That case involved the question whether a Greek Orthodox Archbishop in South Australia had been working under a contract of employment or not with his church. A preliminary issue was whether or not there was a contract at all. Over a number of years there have been United Kingdom decisions holding that a minister of religion is [page 132] not normally in a contractual relationship with the church they work for. In the past the courts have focused on the ‘spiritual’ aspects of the relationship and have stated that it was not intended to be legally binding. So in Ermogenous, in the Supreme Court of South Australia, the Full Court stated that ‘an intention to enter a contractual

relationship about the remuneration and maintenance and support of a minister of religion is not to be presumed’: [2002] HCA 8 at [19]. But the majority of the High Court (Gaudron, McHugh, Hayne and Callinan JJ) doubted whether this was the correct approach, stating (at [26]): In this context of intention to create legal relations there is frequent reference to “presumptions”. It is said that it may be presumed that there are some “family arrangements” which are not intended to give rise to legal obligations and it was said in this case that it should not be presumed that there was an intention to create legal relations because it was a matter concerning the engagement of a minister of religion. For our part, we doubt the utility of using the language of presumptions in this context. At best, the use of that language does no more than invite attention to identifying the party who bears the onus of proof. In this case, where issue was joined about the existence of a legally binding contract between the parties, there could be no doubt that it was for the appellant to demonstrate that there was such a contract. Reference to presumptions may serve only to distract attention from that more basic and important proposition. [emphasis added]

In other words, their Honours seem to be suggesting a move away from the ‘presumption’ approach to an approach that focuses attention on the objective circumstances of the parties and what they should be read as having intended. Although the comments are made concerning a very narrow area (the employment of ministers of religion), this may well signal a change in the way courts approach the issue. 3.54 Interestingly, in a separate judgment Kirby J, in contrast to the majority, did not comment on the general issue of presumptions. His Honour based his decision, agreeing in the result with the majority, on the ground that as Australia was a very different country to England with a very different religious history, the English cases establishing a presumption that a minister of religion did not have a ‘contract’ were not applicable to Australia. In other words, he did not question the approach of using ‘presumptions’; he simply found that there was no presumption in the case of clergy and that the issue was basically one of what the parties had said and done, stating (at [74]): There is therefore no presumption that contracts between religious or associated bodies

and ministers of religion, of their nature, are not intended to be legally unenforceable. At least where the contracts concern proprietary and economic entitlements, of the kind which in this case Archbishop Ermogenous sought to enforce (and certainly where they are not intertwined with questions of religious doctrine that a court would not feel competent to resolve according to legal norms) there is no inhibition either of a legal or discretionary character that would prevent enforcement of such claims when they are otherwise proved to give rise to legal rights and duties. [emphasis added]

[page 133] In Ermogenous the archbishop had been invited by the Association to come from the United States to work in Australia, he had been paid a regular salary, tax had been deducted and all the other elements were present which made it clear that the parties would normally have viewed the arrangement as a binding contract. In the result, then, the High Court found that a contract was in existence, but remitted the case back to the South Australian court to determine the further question as to whether it was a contract of employment or not.57 It is interesting to note that even in the United Kingdom the rules concerning the employment of clergy are changing. In Percy v Church of Scotland Board of National Mission [2005] UKHL 73; [2006] 2 WLR 353, the House of Lords, like the High Court of Australia, held by majority that it should no longer be presumed that there is no intention to contract in relation to the work of a parish minister. In that case the member of the clergy concerned was held to be an employee and entitled to take an action for unfair dismissal. (The later decision in President of the Methodist Conference v Preston [2013] UKSC 29, holding that a minister of the Methodist church had only ‘spiritual’ and not legal obligations, illustrates the need for a careful analysis of the specific arrangements in each case.) In Australia, the court in Sturt v Farran, Bishop of Newcastle [2012] NSWSC 400 at [69]–[86], concluded that on the evidence available a parish priest was not an ‘employee’, in part due to the lack of intention to create legal relationship.

3.55 The law relating to intention to enter contractual relations was reviewed in Shahid v Australasian College of Dermatologists [2007] FCA 693 following the decision in Ermogenous. In Shahid, it was held that a doctor who had applied for admission as a dermatologist, and had been rejected, could not rely on any contractual relationship between herself and the college. The college had made no promises in accepting her application, and had never indicated any intention to form a binding contract. Nicholson J cited a number of cases to the effect that since the decision in Ermogenous (at [303]): … reliance on a presumption was no longer the appropriate test and that in every case the party asserting the existence of a legally binding relationship bears the onus of proof.58

However, while not doubting that general comment, on appeal in Shahid v Australasian College of Dermatologists [2008] FCAFC 72, the Full Court of the Federal Court found that there had in the circumstances been a reasonable expectation of a [page 134] contract being formed — the doctor in question had paid large sums of money for her application and exams, and had a reasonable expectation that in return the college would apply their previously published criteria in considering her application. Jessup J (with whom the other members of the Full Court agreed on this point) commented (at 215): The agreement between the appellant and the College which the trial Judge held was not accompanied by an intention to create legal relations involved an appeal from the decision of the selection committee. In each case the appellant paid a fee of not insubstantial proportions, in return for which the College promised that there would be an appeal with the characteristics alleged by the appellant. Where one party makes, and the other party accepts, a money payment as consideration for a promise by the other to provide some service or to bestow some benefit, the proposition that each intended the promise to be taken seriously and to carry the conventional legal consequences does seem rather obvious.59

A case that raises interesting questions on the issue of contract formation is Nield v Mathieson [2014] FCAFC 74. Ms Mathieson worked in a small corner shop for some years under an ambiguous employment arrangement. She was paid wages on a fairly standard employment contract for working between seven and eight hours a day. When she separated from her husband, she was offered a bedroom at the back of the shop and then continued to work without formal wages being paid, even working long hours. She later moved into a nearby property and paid rent but still received no wages. When the parties later had an argument, Ms Mathieson sued for back pay under the relevant award. Nields argued that she was a ‘volunteer’. The court held that there was an employment arrangement on foot prior to August 2006, the implication being from the behaviour of the parties that they intended to continue that arrangement after that point in time, and hence she was an employee and entitled to back pay. Capacity 3.56 The fifth essential element of a valid contract is that the parties concerned must have the legal capacity, or ability, to enter into it. Minors 3.57 The situation of minors (those under 18 years of age) is dealt with in New South Wales by the Minors (Property and Contracts) Act 1970 (NSW). Under that Act, a contract entered into by a minor, if beneficial to the minor, is presumed binding. Even if it is not classified as ‘beneficial’, it will be binding if ratified before the former minor’s nineteenth birthday. [page 135] Of course, the employment of minors will be affected by

legislation that prescribes the ages below which people may not be employed in certain areas. In New South Wales, the Children and Young Persons (Care and Protection) Act 1998 Ch 13, ss 221 ff regulates these sorts of matters in relation to children under the age of 15. Mental disability and intoxication 3.58 Someone who is incapable of understanding what they are doing, due to either mental disability or the effects of intoxication, also lacks the capacity to enter most contracts. Bankrupts 3.59 A person who is bankrupt is capable of entering a contract, but before the contract is complete the trustee in bankruptcy may intervene: Bankruptcy Act 1966 (Cth) s 126. However, employment contracts will not usually be affected. Associations 3.60 One area in which difficulties sometimes arise is where an unincorporated association, such as a club, is involved. Such a body is not a ‘legal person’, and cannot itself enter into contracts. A contract made with a club or group of this sort may sometimes be enforceable against the committee of the club, or against the particular individuals who signed the agreement. In Peckham v Moore [1975] 1 NSWLR 353, where a rugby league player who had been employed for three years by his club, sued the committee he was originally employed by, the court held that in fact he should have sued the current committee. Corporations 3.61 Companies, however, do have ‘legal personality’: see Corporations Act 2001 (Cth) s 124, which states that a company has ‘the legal capacity and powers of an individual’. As such, a

company may enter contracts. Similarly, a not-for-profit organisation which is incorporated under legislation such as the Associations Incorporation Act 2009 (NSW) is also regarded as having the ‘legal capacity and powers of an individual’: s 19. Legality 3.62 The final requirement for a valid contract is that it be for a legal purpose. For example, if a contract of employment had been entered into for the purposes of killing someone, it would obviously be unenforceable. This principle may sometimes be difficult to apply, as clearly not every minor breach of a statutory requirement ought to invalidate a contract. For comments on the issue by the High Court, see Fitzgerald v FJ Leonhardt Pty Ltd (1997) 71 ALJR 653. In Nonferral [page 136] (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312, the New South Wales Court of Appeal had to decide whether a contract of employment entered into by an illegal immigrant (and thus in contravention of Commonwealth law) was void due to illegality. The result would have been that the worker concerned would have been unable to be paid workers’ compensation benefits. Cole JA, who together with Stein JA held that the contract was not void for illegality, adopted the test set out by McHugh J in the High Court decision of Nelson v Nelson (1995) 184 CLR 538 at 613: … courts should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose unless (a) the statute discloses an intention that those rights should be unenforceable in all circumstances; or (b) (i) the sanction of refusing to enforce those rights is not disproportionate to the seriousness of the unlawful conduct; (ii) the imposition of the sanction is necessary, having regard to the terms of the statute, to protect its objects or policies; and

(iii) the statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the statute or the frustration of its policies.

In this case the federal law did not completely prohibit an immigrant from working in Australia; it simply required that before they did so, they should obtain a permit from a government official. Cole JA went on to say (at 316): In my view the statute does not disclose an intention that rights dependent upon a contract of employment entered into in breach of the statutory prohibition against the performance of work without the necessary permission should be unenforceable because of illegality. The sanction of refusing to enforce those rights would be disproportionate to the seriousness of the unlawful conduct. It is not necessary to impose such a sanction to protect the objects of the Migration Act 1987 because that Act imposes sanctions in the form of a penalty. [emphasis added]

In other words, the person concerned was subject to a fine; the imposition of the further penalty of invalidating their contract was not required by the legislative scheme. Note that in holding that this contract was still enforceable the New South Wales Court of Appeal declined to follow the contrary South Australian decision in Workcover Corporation (San Remo Macaroni Co Pty Ltd) v Da Ping [1994] SASC 4466. In the later Queensland case of Australia Meat Holdings Pty Ltd v Kazi [2003] QSC 225, the trial judge agreed with the New South Wales Court of Appeal that the illegality would not void the contract, but on appeal in Australia Meat Holdings Pty Ltd v Kazi [2004] QCA 147 the Queensland Court of Appeal (by a 2:1 majority) held that the contract was void and the worker not entitled to compensation. This conflict among the courts in three states may mean that the High Court will need to resolve the issue at some stage. In Singh v Taj (Sydney) Pty Ltd [2006] NSWCA 330, the court confirmed that a worker’s illegal status will not always mean that no recovery of compensation is possible. [page 137]

See also Hussein v Secretary DIMA (No 2) [2006] FCA 1263, holding an employment contract entered into by an illegal migrant void.60

Circumstances that might invalidate contract 3.63 As well as the requirement to establish the above six factors before a prima facie contract can be said to exist, there a number of other factors that the courts have held will invalidate a contract. Although we will not consider them in detail here, the following should be noted as circumstances in which a contract may be questioned. Formal factors: lack of writing 3.64 A contract may otherwise be valid but fail because it does not satisfy certain formalities required for that type of contract. The primary example of this is the requirement that contracts for the sale or other disposition of an interest in land must be in writing and signed by the party to be charged: Conveyancing Act 1919 (NSW) s 54A(1). Provisions of this sort are not usually applicable to contracts of employment. Mistake 3.65 The two parties who seem to be in agreement may have made a mistake about a significantly important aspect of the contract. But what sort of mistake will make a contract invalid? It used to be thought that where one party was under a fundamental misapprehension as to the subject matter of the contract, the contract was to be regarded as ‘void’; that is, as if it never existed. However, this then led to problems if a third party subsequently became involved. In recent years the courts have tended to say that where to all outward appearances a party has entered into a contract, even a fundamental mistake will not destroy the contract completely. But

the court may have regard to the mistake when dealing with the enforcement of the contract. 3.66 This was the approach taken by the High Court in Taylor v Johnson (1983) 151 CLR 422. The seller of land signed a contract that she thought provided that the price of her 10 acres of land would be $15,000 per acre. In fact the contract she signed stated that the total price was $15,000. The court held that there was a contract; however, in its equitable jurisdiction the court said that it would not enforce the contract because the purchaser knew that the vendor was mistaken as to the price, and stood by while she signed the contract without correcting her mistake. In the Queensland case of Macdonald v Shinko Australia Pty Ltd [1998] QCA 53, purchasers signed an ‘off-the-plan’ contract for a home unit. The vendor intended to sell a unit on the south side of the building, but due to a mistake on the part of both parties, the contract that was signed designated a unit on the north [page 138] side (which was worth more than the south side unit). While the contract itself was perfectly clear, the Supreme Court of Queensland said that the defendant would be allowed to produce evidence about what the parties had said and done before the contract was signed, to apply for the equitable remedy of ‘rectification’ on the ground of mutual mistake. Physical duress 3.67 As well as the possibility of mistake, there are other factors relating to a person’s consent to the contract that may make the contract unenforceable. One of these factors is when a person’s consent to the contract is induced by physical duress. Barton v Armstrong [1973] 2 NSWLR 598; [1976] AC 104

establishes that a contract induced by a threat of physical harm will not be enforceable. To establish this ground it must be shown that the threat was a threat: of death or bodily harm; calculated to induce fear; and in the circumstances actually the cause of fear. The threat need not necessarily be to the person concerned; a threat to a close family member will also invalidate the contract. Even if the threat was only one of the reasons for consenting to the contract, the person pressured into entering into it may still be entitled to relief.61 However, the person needs to act reasonably quickly in order not to be found to have ‘affirmed’ the contract once the duress has passed.62 3.68 A person who has been pressured in this way may also have other remedies under statute. Section 50 of the Australian Consumer Law states:63 50(1) A person must not use physical force, or undue harassment or coercion, in connection with: (a) the supply or possible supply of goods or services; or (b) the payment for goods or services.

This would prohibit, for example, undue harassment or pressure to pay an account. It would not usually be applicable to an ongoing employment contract, although [page 139] it perhaps might apply in some rare cases where a person had been coerced into doing work. Economic duress

3.69 As well as physical duress, the courts have also recognised the possibility of ‘economic duress’ invalidating a contract. The judgment of McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 is usually taken to represent the current law on economic duress in New South Wales. He summarises the doctrine in this way (at 45D): The rationale of the doctrine of economic duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate.

Further on in the judgment (at 46) he sets out the relevant questions as: The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.

He also emphasised that once it was established that illegitimate pressure had been brought to bear, it will be up to the party seeking to enforce the contract to show that the pressure was not operative in causing the contract to come about. The result of this type of economic duress is that the contract is voidable at the option of the victim, provided there has not been an ‘affirmation’ of the contract after the unlawful pressure ceased to operate. The kind of economic duress that could be used might be the threat to refuse to perform a contract at a particularly inconvenient time. In that case the court will give relief against a promise made under duress. Note, however, that it would be regarded as ‘economic duress’ where a person took a job merely because they needed an income. Undue influence

3.70 Short of actual duress, the courts recognise a range of other situations in which a person’s consent to a contract has resulted from the influence that another person has had over them, so that the choice to enter the contract was not freely made. In general, the court will give a remedy where a contract has been entered into in circumstances in which one party has a position of dominance over the other and has in fact taken advantage of that position. The basis of the doctrine is that the ‘weaker’ party’s will has been overborne by that of the ‘stronger’ party, so that it is [page 140] unfair to enforce the bargain. In a sense the doctrine of undue influence, which has been developed by the courts of equity, is a more ‘generous’ version of the doctrine of duress. 3.71 1. 2.

Undue influence may arise in two ways:

where there is a relationship of ‘confidence’ between the parties; or due to the circumstances of a particular transaction, perhaps when viewed against the history of the relationship between the parties.

Under the first heading, a relationship of confidence may be either actual, or it may be ‘presumed’ because the parties are in a relationship which the law automatically deems to be ‘confidential’. The sorts of relationships in which influence will be presumed are: parent–child; guardian–ward; doctor–patient; solicitor–client; agent–principal; trustee–beneficiary; religious adviser–disciple. If these relationships exist between the parties, then the law will presume that there was undue influence in a contract, and set it aside unless the more powerful person can show in some way that

undue influence was not used. However, not all family relationships give rise to a presumption of undue influence. For example, in Urane v Whipper [2001] NSWSC 796 at [22], Windeyer J commented that a gift from a father to a daughter would not be presumed to be due to undue influence, as opposed to a gift from a daughter to a father. The law presumes that a parent is able to withstand the influence of a child, although as will be seen when we look at this case from a different viewpoint (see 3.76) in particular fact situations that may not be true. Where the presumption applies, how can it be rebutted? The safest and most reliable way of doing this is to prove that the weaker person had independent advice about the consequences of their action, and was fully informed about the nature of the transaction and its possible detrimental aspects: Inche Noriah v Shaik Allie Bin Omar [1929] AC 127. 3.72 Even in cases in which a special relationship does not exist, there may in the circumstances be undue influence. For example, in Johnson v Buttress (1936) 56 CLR 113, the gentleman concerned was elderly, illiterate, recently widowed and dependent on Johnson when he gave him a cottage. The gift was set aside because no independent advice had been obtained concerning this transaction. In Lai See Law bht Protective Commissioner of New South Wales v Yan Mo [2009] NSWSC 639, Bergin J held (at [76]) that a transfer of a valuable house for a consideration of $1 had been made because of the ‘undue influence’ of the transferee, who had been caring for the transferor in her home: It is clear that the plaintiff trusted the defendant and was in a position in which the defendant was able to exercise dominion over her, particularly when the purported gift of the Property was made. She was living with the defendant and was reliant upon her for assistance in her daily living. It was just six weeks prior to the transfer of the Property to the defendant that the plaintiff had suffered the loss of her husband of many years upon whom she had been totally dependent for at least the previous three years. The plaintiff was in a very vulnerable position.

[page 141] Unconscionable behaviour 3.73 Apart from the cases dealing with undue influence, there is another equitable doctrine that relates to lack of proper consent: unconscionable behaviour. One aspect of this doctrine is that where the contract contains a particularly onerous and harsh clause, it should be specifically brought to the attention of the other party.64 The second and more wide-ranging area is that of unconscientious use of a superior position. Recent cases have spelled out the principle that a court will give relief from the harsh terms of a contract where: … a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage.65

In Louth v Diprose (1992) 175 CLR 621 at 626 (Louth), Brennan J described the factors involved in setting aside a gift on the grounds of unconscionable conduct: The jurisdiction … ordinarily arises from the concatenation of three factors: (i) a relationship between the parties which, to the knowledge of the donee, places the donor at a special disadvantage vis-à-vis the donee; (ii) the donee’s unconscientious exploitation of the donor’s disadvantage; and (iii) the consequent overbearing of the will of the donor whereby the donor is unable to make a worthwhile judgement as to what is in his or her best interest. [numbering added]

His Honour’s comments are equally applicable to the setting aside of a contract. 3.74 To determine special disability or disadvantage the courts usually refer to the list of factors set out by Fullager J in Blomley v Ryan (1956) 99 CLR 362 at 405: … poverty or any kind of need, sickness, age, sex, infirmity of body or mind,

drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary.

This list is probably not exhaustive. In Louth, for example, Mr Diprose’s ‘special disadvantage’ was that he was ‘utterly infatuated’ with Ms Louth, and in a state of complete ‘emotional dependence’ on her: 175 CLR at 629. It also needs to be shown that there is knowledge by the superior party of the disadvantage, and then a determination made as to whether or not they took advantage of it in an unconscionable way. This question comes down to the terms of the particular contract. In Commercial Bank of Australia v Amadio (1983) 151 CLR 447, a bank manager had required the elderly Mr and Mrs Amadio to sign a guarantee of their son’s loan when the manager [page 142] realised that the couple probably did not understand the implications of the guarantee. The recent decision of the High Court in Kakavas v Crown Melbourne Ltd [2013] HCA 25 makes it clear, however, that this doctrine only applies where there is actual knowledge of the disadvantage of the weaker party, not merely ‘suspicion’ or indifference: see [161]. 3.75 It also needs to be established whether the superior party’s behaviour was the cause of the contract. As Brennan J pointed out in Louth (175 CLR at 631), in establishing the above three factors, it will usually be sufficient for the court to infer that the weaker party’s will was effectively ‘overborne’ in the situation, and that this unconscientious behaviour was the cause of the bargain. He went on: ‘The inference may be drawn unless the donee can rely on countervailing evidence to show that the donee’s exploitative conduct was not the cause of the gift’: 175 CLR at 632.

See Bridgewater v Leahy [1998] HCA 66 for a case where the High Court was divided on the issue. Gleeson CJ and Callinan J found that the plaintiff, the deceased’s nephew, had not had any unconscionable influence over him, and that the deceased knew exactly what he was doing in leaving a large part of his estate to his nephew. The other three judges found that there was an unconscionable influence. 3.76 Urane v Whipper [2001] NSWSC 796 is an example of a case where unconscionable conduct was found. Mr Urane and Mrs Whipper were father and daughter. Mr Urane lived in Belmont South and Mrs Whipper and her husband lived in Kahibah. Mr Urane was quite elderly and had suffered a stroke; Mrs Whipper was caring for him. In order to do this more easily she proposed that the Belmont house be sold, the Kahibah house be sold, and that she, her husband and her father would all move into a better house in Floraville. The new house, however, was to be entirely in her name, and Mr Urane was to have no legal or equitable interest in it whatsoever. Later, as unfortunately often happens, Mr Urane and Mrs Whipper fell out, and Mr Urane had to leave the Floraville house to enter a nursing home. After further medical treatment he regained some of his memory and sued Mrs Whipper and her husband to recover some of the proceeds of his former house. Windeyer J held, as noted previously (see 3.71), that this was not a case of undue influence; not only was there no presumption, but he said on the basis of previous authority that for undue influence to apply there had to be a complete overbearing of the will, and in this case Mr Urane, while not entirely happy with the arrangement, did at least agree to it. But his Honour held that there had been ‘unconscionable conduct’ by Mrs Whipper. Mr Urane was clearly under a disability due to age and illness; Mrs Whipper knew this and took advantage of Mr Urane’s situation to pressure him into this agreement in an unconscionable way. Mr Urane had not been given any separate independent legal advice.

He should at least have been given some legal interest in the new property. Windeyer J ordered that the proceeds of the sale of the Belmont South house be refunded to Mr Urane, but he took into account the benefit that Mr Urane had had of living in the Floraville house for some time by reducing the amount of interest to be paid. [page 143] Statutory review of ‘unfair’ contracts 3.77 As well as the common law doctrines mentioned already, there are a number of pieces of legislation that are significant in giving courts power to vary contracts. The Contracts Review Act 1980 (NSW) is the most important. This is a radical piece of legislation designed to allow the courts to review a contract, and give relief, on the simple basis that, in the circumstances, the contract is ‘unjust’: s 7(1). The background and purposes of the legislation are discussed in West v AGC (Advances) Ltd (1986) 5 NSWLR 610, and by Spender AJ in ANZ Banking Group Ltd v Volmensky (SC(NSW), Common Law Div 92/15542, 14 December 1994, unreported). Section 7 is the provision that gives the court jurisdiction, and s 9 sets out the factors that the court must bear in mind in deciding whether or not a contract or term is ‘unjust’. In addition, s 106 of the Industrial Relations Act 1996 (NSW) gives a wide power to the Industrial Commission of New South Wales in Court Session to vary a contract under which work is performed in an industry, where the contract at the time the court is asked to make an order is unfair, harsh or unconscionable. However, the ‘Work Choices’ legislation removed most of the value of these provisions in relation to employees. As Stewart puts it:

A combination of s 26 of the Fair Work Act 2009 (Cth) and Part 2 of the Independent Contractors Act 2006 prevents the New South Wales unfair contracts provisions from applying either to national system employees,66 or to contracts for services (or related arrangements) involving a constitutional corporation. In practice, therefore, much of the Commission’s jurisdiction has been removed.67

Contents of contract of employment: terms General nature of employment relationship 3.78 This is an important background as we come to consider the obligations of the employment relationship as terms of the employment contract; while in many cases a straightforward contractual analysis will be appropriate, there may be obligations to be found in the employment relationship which are not solely derived from contracts between the parties. If there is a contract of employment, the next question to ask is: what are the terms of the contract? What have the parties agreed to do? In Commonwealth Bank of Australia v Barker [2014] HCA 32 at [16] (Barker), French CJ and Bell and Keane JJ gave an important overview of the relationship of employment law to contract law as follows: The employment relationship and the employment contract The history of the employment relationship is considerably longer than the history of the employment contract. The master–servant relationship, as it was once called,

[page 144] attracted incidental obligations before it began to be treated as contractual1. The evolution of its treatment by the common law has been described as “a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee)”2. That shift began in the United Kingdom in the nineteenth century with higher level occupations and had encompassed employees generally by the early twentieth century3. Associated with it were what Dixon J called “the fluctuating changes over the centuries in the extent to which the terms and conditions on the employment are left to free contract”.4 Today, it would be unusual to find an employment relationship defined purely by contract5. Large

categories of employment relationships are governed, at least in part, by statutory obligations expressed in industrial awards and agreements. There are laws dealing with unfair dismissal and the conditions of employment in relation to occupational health and safety. Anti-discrimination statutes of general application affect the conduct of the employment relationship. The relationship also has a fiduciary aspect6. [emphasis added] 1.

Attorney-General for NSW v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 at 245-246 per Dixon J, 256 per McTiernan J; [1952] HCA 2.

2.

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 436 perMcHugh and Gummow JJ; [1995] HCA 24. Deakin and Morris, Labour Law 4th ed (2005) at 22 [1.16], 25-26 [1.19]; Peden, “Contract development through the looking-glass of implied terms”, in Gleeson, Watson and Peden (eds), Historical Foundations of Australian Law, Volume II: Commercial Common Law, (2013) 201 at 204.

3.

4. 5. 6.

Attorney-General for NSW v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 at 248. Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312 at 315 [17] per Gleeson CJ, Gaudron and Gummow JJ; [2000] HCA 64; 176 ALR 693 at 697. Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 96-97 per Mason J; [1984] HCA 64.

Distinction between ‘express’ and ‘implied’ terms 3.79 The courts distinguish between ‘express’ and ‘implied’ terms of a contract. An express term is a term of the contract (whether it is in writing or not) to which the parties have actually addressed their minds. They have either discussed it, or it has been put down in writing and they have signed the written document. An implied term is one which has not been so spelled out. The High Court of Australia described the different types of ‘implied term’ as follows in Commonwealth Bank of Australia v Barker [2014] HCA 32 at [21]: Courts have implied terms in contracts in a number of ways: in fact or ad hoc to give business efficacy to a contract; by custom in particular classes of contract; in law in particular classes of contract; or in law in all classes of contract. Contractual terms implied in law may be effected by the common law or by statute.

If effected by the common law they may be displaced by the express terms of the contract or by statute. [footnotes omitted]

[page 145] 3.80 In relation to express terms, occasionally questions have arisen as to whether a written document described as a ‘policy’ of an employer has been incorporated into contracts of employment. It is worth noting that sometimes these documents have indeed been given contractual force. In Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120, it was held that a lengthy policy document issued by an employer containing assurances about fairness in dealing with employees was a part of the employment contract, and that breach of those assurances entitled the employee to seek damages.68 Another example is Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177, where a ‘policy’ document which was given to the employee as part of a package of materials to be read and complied with, was held to be a part of the employment contract. The policy document contained details about how complaints of harassment and bullying would be dealt with. In the circumstances the company failed to follow those procedures when the employee made a complaint against a supervisor. The court held that there had been a breach of contract and sent the matter back to a trial judge for a hearing on remedies: see [56]– [58]. In Gramotnev v Queensland University of Technology [2015] QCA 127, however, it was held that simply because a contract states that a policy regulates the behaviour of other staff members, this does not imply that the employer is promising that the staff will not breach that policy: at [89]–[90]. 3.81 An implied term, on the other hand, is a term of the contract to which the parties did not actually address their minds. It is a term of the contract that the court holds should be ‘read

into’ the contract for one of the reasons referred to in the quote from Barker noted above at 3.78: 1.

2.

3.

it may be implied ‘in fact’ because the court concludes that the parties would have agreed upon it if they had thought about it; it may be implied by the principles of common law, because the law presumes that such a term would be present in a contract of this particular type, or into all contracts, whatever the parties would say; or it may be implied by virtue of a statute.

Another possibility that has been suggested from time to time is that, in relation to contracts of employment, certain terms may be implied into contracts because of an industrial award covering the worker. We will examine these issues as they relate to the contract of employment.

Terms implied ‘in fact’ 3.82 This first category of implied terms tries to implement the real, but unspoken, intention of the parties when they entered the contract. The basic justification offered for this type of implication is that sometimes things remain unsaid which are necessary to give ‘business efficacy’ to a contract. The theory is that this is the kind of term [page 146] about which, if the parties had been asked at the time of making the contract, they would have said: ‘Of course, that goes without saying.’

Because it is important in commercial contracts not to read in terms that the parties don’t want, a set of fairly strict criteria have been formulated, which must be satisfied before a term can be implied into a written contract between two business people. These criteria were set out by the Privy Council in the case of BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 283 (BP Refinery). For a term to be implied into a formal contract it must be: 1. 2. 3. 4. 5.

reasonable and equitable; necessary to give business efficacy to the contract, so that without it the contract would be ineffective; so obvious that it ‘goes without saying’; capable of clear expression; and not contrary to any express term of the contract.

3.83 The High Court has drawn a distinction, however, between ‘formal’ contracts, where the terms are in writing or otherwise very clear, and ‘informal’ contracts. A contract of employment, for example, is often a very informal one: apart from the offer to pay a certain salary and a request to turn up at a certain time, often very little else is stated, particularly in contracts for manual labour or ‘non-skilled’ labour. One of the reasons for distinguishing between the two types of contracts is that in informal contracts it is often not very clear what the express terms of the contract are, let alone the implied terms. This approach was applied to contracts of employment in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 (Byrne & Frew). In that case two baggage handlers at Perth airport had been dismissed on the basis of video surveillance evidence that they had been rifling through the bags of airline customers in an attempt to steal items from the luggage. When they were dismissed they took action against Australian

Airlines for unlawful dismissal, on the basis that cl 11(a) of the industrial award that applied to them stated: Termination of employment by an employer shall not be harsh, unjust or unreasonable.

As well as the action for breach of the award, however, they argued that for a number of reasons this clause of the award should be held to be an implied term of their contract of employment. As a result, as well as the penalties for breach of award under the (then-applicable) Industrial Relations Act 1988 (Cth), they said they should be able to recover damages for breach of contract. 3.84 For the purposes of this chapter, we will just refer to the argument concerning a term ‘implied in fact’ into the contract. The High Court said that there was a difference between a formal written contract and an informal contract, such as the one in this case. Brennan CJ, Dawson and Toohey JJ (at 422) said that the test for implied terms in [page 147] an informal contract was contained in the judgment of Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 573: … in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties. [emphasis added]

The test for implication of terms into informal contracts is therefore a little bit looser than the BP Refinery test. It may be possible to imply a term under this test where without it the

contract would be ‘substantially’ ineffective or unreasonable, as opposed to ‘completely’ ineffective under the test outlined in BP Refinery. In applying the test in Byrne & Frew, the court concluded (at 422) that: It is not necessary to imply a term in the form of cl 11(a) for the reasonable or effective operation of the contract of employment in all the circumstances.

The common law terms as to dismissal were that it be on reasonable notice, or summary (‘on the spot’) in the case of serious breach. There was no evidence that the terms of cl 11(a) were needed in this case. 3.85 In the context of employment contracts, the Western Australia Industrial Appeal Court commented in United Construction Pty Ltd v Birighitti [2003] WASCA 24 at [14]: In the case of informal oral agreements the terms of which are not the subject of direct evidence the content of the arrangement may be inferred by examining events which succeeded the contract and from the course of dealing between the parties themselves, that is to say, their post-contract conduct: Haynes v McNeil (1906) 8 WALR 186; Glass v Pioneer Rubber Works of Australia Ltd [1906] VLR 754.

It has been held that it is not an implied term of a contract to reveal past misconduct, such as misappropriating company resources: Official Trustee in Bankruptcy v Concut Pty Ltd [1999] QCA 3. (The High Court overturned the decision on appeal but not in relation to the implied terms: Concut Pty Ltd v Worrell [2000] HCA 64.) One example of a failed attempt to find an implied term in an employment contract is Griggs v Noris Group of Companies (2006) 94 SASR 126, where an employee who had worked overtime and was entitled to ‘time off in lieu’ ended his employment and wanted to be paid for his accrued ‘time off’. The court was unable to imply a term, as it was not obvious what the parties would have agreed had they turned their minds to the issue.69

[page 148] A novel example is Gramotnev v Queensland University of Technology [2015] QCA 127, where a university lecturer raised various arguments as to why the termination of his employment was in breach of contract. Jackson J (with Margaret McMurdo P and Holmes JA agreeing) rejected his claims that international human rights norms should be implied terms, because the necessary international laws were yet to be incorporated into Australian law and would not give business efficacy to the contract: at [180]–[185]. The claim that there was an implied term of health and safety was also rejected when seen against existing legal regimes (tort, workers compensation and work, WHSA 2011 and similar statutes), given that it would not give business efficacy to the contract to impose a legal obligation more onerous than those that exist under those laws: at [173]–[179].

Common law implied terms 3.86 Second, apart from the terms implied by reference to the presumed intention of the parties, there are terms implied as a matter of common law into general classes of contracts, regardless of the intentions of the parties. There are a number of such implied terms in the class of contracts of employment.70 We will look at a number of these below in relation to duties (see 3.92ff) but here we focus on the implied term that is the most relevant for the purposes of this book: the duty to take care for the safety of employees. There was no doubt, in the early days of the development of the common law duty of an employer to provide a safe working environment, that this was a duty stemming from an implied term in the contract of employment. One of the very first cases where the duty was definitely established was the House of Lords decision in Wilsons and Clyde

Coal Co v English [1938] AC 57. There, Lord Wright referred to ‘those fundamental obligations of a contract of employment’, and identified the obligation as threefold (at [78]): … the provision of a competent staff of men, adequate material, and a proper system and effective supervision.

More recently, when the question has been asked whether the duty stems from the contract or from the area of tort,71 the courts have occasionally been less clear. However, in Wright v TNT Management Pty Ltd (1989) 85 ALR 442, the New South Wales Supreme Court was at least prepared for the purposes of the argument in that case to assume that it was a contractual implied term.72 There is definite authority in England that the term may be treated either as one in contract or in tort: Davie v New Merton [page 149] Board Mills Ltd [1959] AC 604. We will explore the detailed implications of a duty to take reasonable care for the safety of workers in Chapter 4. 3.87 In general, it will not make much difference whether an action is taken under contract law or in the law of tort. But for a (relatively brief) period of time the decision of the High Court in Astley v Austrust Ltd [1999] HCA 6 (Astley) made it important to clarify in some cases the nature of the action. The significance lay in the area of the possible reduction of damages awarded for a workplace injury on the grounds of the ‘contributory negligence’ of the injured worker. As we will see in Chapter 5, in an action based on the tort of negligence, contributory negligence of the worker may lead to a reduction in the amount of damages awarded. But the High Court’s decision in Astley established that, under the usual form of the relevant state legislation at the time, contributory negligence was not available as

a defence in an action for breach of contract.73 Accordingly, where an action might have been taken either in tort or contract, a plaintiff would be able to choose to take an action based on the contract, and so avoid a possible reduction in damages on the basis of contributory negligence. As a result, under the existing legislation that was considered in Astley, those acting in common law claims taken by employees for workplace injuries should have considered framing a claim in contract rather than tort in an appropriate case (if there was an issue of possible contributory negligence). For examples of cases where Astley was in fact applied in this way so as not to reduce a worker’s damages, see Jones v Persal & Co [1999] QDC 189 (a decision of McGill J) and Wylie v The ANI Corporation Ltd [2000] QCA 314. However, due to concerns expressed by insurers and others about the impact of these actions, state governments agreed to amend the legislation dealing with contributory negligence to overcome the effect of the Astley decision. In New South Wales, the Law Reform (Miscellaneous Provisions) Amendment Act 2000 inserted a completely new Pt 3 into the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). The Part now allows apportionment where an injured person sues on the ‘wrong’ of another, and ‘wrong’ is now defined to include ‘a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort’.74

Statutorily implied terms 3.88 We now return to the issue of identifying the terms of a contract. The third category noted previously under the heading of implied terms is that of terms implied by statute, as opposed to the common law. Of course, it is possible for a contract to contain terms implied by operation of an Act of Parliament, regardless of the intention of the parties. An example of such a statute is the Australian Consumer Law,75 s 55 of which implies into certain

contracts for the sale of goods, terms such as fitness for purpose or merchantable quality. The sale of goods legislation of other [page 150] jurisdictions also contains provisions to the same effect: for example, Sale of Goods Act 1923 (NSW) s 19. However, with the possible exception noted below, there is not a great deal of specific legislation implying terms into a contract of employment.

Provisions of industrial award? 3.89 The possible exception (which we will see is not an exception at all) concerns industrial awards. A detailed discussion of the industrial system in Australia is beyond the scope of this book. Until recently, some federal and state Arbitration or Industrial Relations Commissions awards existed that established certain minimum standards for employees in various industries. In Gregory v Philip Morris Ltd (1987) 77 ALR 79, the Full Bench of the Federal Court decided by majority that the terms of an award had been statutorily incorporated into an employee’s contract of employment. That case was followed by others that also held that such incorporation had taken place. What is the significance of this? If both parties were already obliged to obey the award, then why argue that it was a term of the contract? The reason for the argument was this: if the provision had become a term of the contract, then as well as the statutory remedies for breach of the award, it would be possible to sue for breach of contract, and possibly obtain a higher damages award. 3.90

The issue finally came before the High Court in Byrne &

Frew v Australian Airlines Ltd (1995) 185 CLR 410, the case on the dismissal of the baggage handlers at Perth airport mentioned previously: see 3.83. In this case the High Court refused to find that the provision of the award that prohibited unfair or harsh dismissal had become an implied term. They also found that the term was not incorporated into the contract by virtue of the statute. The majority (Brennan CJ, Dawson and Toohey JJ) noted that the provisions of the award applied to the parties by virtue of the statute under which it was made. They said (at 421): … it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award … Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations.

As a result, a contract of employment will not contain the provisions of an award as its terms, unless of course the parties have explicitly stated this. A number of ‘National Employment Standards’ are now contained in the Fair Work Act 2009 (Cth) Pt 2. But their enforcement, as with the former provisions, is probably limited to the statutory remedies provided under that Act.76 [page 151]

Consequences of contract of employment: duties 3.91 Once a contract of employment has been entered into, the parties to the contract are in a relationship with recognised duties owed one to the other, in the same way as duties are owed in other relationships, such as husband and wife, or parent and child, or director and shareholder. One way of characterising those duties (as noted above, 3.87) is

to say that they are implied terms of the contract of employment. Another way is simply to say they are legal duties arising out of the relationship. Many of these duties have an impact, either direct or indirect, on workplace safety.

Duties of employer to employee Duty to pay wages 3.92 The payment of wages, of course, is usually the fundamental purpose of the contract of employment, from the point of view of the employee. As well as the provisions of the contract, an industrial award or other instrument may prescribe rates of pay and create a legal duty on the employer to pay at that rate. Section 323 of the Fair Work Act 2009 (Cth) provides a statutory right to wages. There are a number of problems that may arise in the context of industrial disputes, such as the extent of the obligation to pay wages when ‘go slow’ or ‘work to rule’ campaigns are instituted. However, we will not be discussing these industrial law duties in this book. Duty to provide work? 3.93 In some situations there may be an obligation on an employer to provide work for an employee, in addition to paying wages. This will not generally be the case, particularly if the employer is obliged to continue to pay wages regardless of actual work. But in some cases, where the employee’s continued work is necessary for their expertise to be maintained, or in the entertainment industry where continued public exposure is important for their career, there may be an obligation implied. The majority of the Full Court of the Federal Court (Tamberlin and Goldberg JJ) put it this way in Ramsey Butchering Services Pty Ltd v Blackadder [2003] FCAFC 20 at [65]:

At common law there is no obligation upon an employer under a contract of employment to provide work to an employee unless the contract specifically requires that such work be provided, or unless it is necessary for the employee to continue to be employed in order to maintain a particular profile, such as an actor, or unless the nature of the work for which the employee is employed is such that the employee’s career and future prospects depend upon the employee working in a particular way, or unless the level of the employee’s remuneration depends upon the extent of the work the employee is able to undertake.

[page 152] In that case an order that an employee be ‘reinstated’ was held to mean that they were to be reappointed to a particular position, not necessarily that they were to be provided with work. 3.94 However, on appeal the High Court held that the Federal Court had not given enough weight to the provisions of the particular statute involved in that case — Workplace Relations Act 1996 (Cth) s 170CH(3) — which required an employee to be ‘reinstated’. As McHugh J commented (at [14]): To construe the power “to reinstate” as confined to restoring contractual or other legal rights fails to give full effect to the term “reinstate”. To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his “job” at the same place and with the same duties, remuneration and working conditions as existed before the termination. The Full Court of the Federal Court erred in the present case by holding that “the emphasis on appointing the employee to a ‘position’ demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms”.

In addition, while it was not strictly necessary for the resolution of the case to comment on the common law as to provision of work, Callinan and Heydon JJ (at [80]) seemed to indicate that in a future case the High Court may be prepared to revisit the traditional view. The circumstances of this case are covered by the federal statutory regime established

by the Act and the Federal Court of Australia Act. Decisions in other jurisdictions under other statutory regimes are of little assistance. Nor are the decisions of other courts or this Court at common law. It is accordingly unnecessary to consider whether the categories of cases in which at common law actual work must be provided for an unlawfully terminated employee or contractor, are closed, although one might question the current relevance of judicial pronouncements made more than 60 years ago in the United Kingdom as to the extent to which an employer might be obliged to dine at home in order to provide work for his cook.77 It may be that in modern times, a desire for what has been called “job satisfaction”, and a need for employees of various kinds, to keep and to be seen to have kept their hands in by actual work have a role to play in determining whether work in fact should be provided.

Duty to provide safe workplace 3.95 We have seen already that the duty to provide a safe workplace arises as an implied term of the contract of employment, as well as separately under the law of tort, [page 153] in particular the area of negligence (to be discussed in more detail in Chapter 4). This is of course one of the major topics we are considering in this book. However, as this duty is nowadays generally dealt with in the area of negligence, and because the issues of breach of duty and causation are relevantly the same, we will examine this matter in the next chapter. Duty to indemnify 3.96 Where an employee incurs personal expense in the performance of their duties, then the employer is under a duty to ‘indemnify’ or repay them: Pupazzoni v Fremantle Fishermen’s Cooperative Society Ltd [1981] AILR ¶168. The principle is usually applied to the ‘entertainment expenses’ of senior executives, etc. However, the duty is owed to all employees. There are no cases precisely on this point, but presumably this might cover a situation where, for example, immediate purchase of certain safety

equipment was a necessary part of an employee’s job, and the employee had to initially pay the cost out of their own pocket. Duty of mutual trust and confidence 3.97 While the law of the United Kingdom recognises an implied duty of ‘mutual trust and confidence’ owed by an employer to an employee (see Malik v Bank of Credit & Commerce International SA (in liq) [1997] UKHL 23; [1998] AC 20), this duty does not exist under Australian contract law, according to the decision of the High Court of Australia in Commonwealth Bank of Australia v Barker [2014] HCA 32. It was found that the existence of the duty in the United Kingdom was based on its own set of industrial laws, and that it was not the role of Australian courts to develop the law to recognise such a duty, but rather the legislature’s job, if it saw fit.

Duties of employee to employer 3.98 As well as duties owed by an employer, the law regards the employee as owing a number of duties. Duty to obey lawful and reasonable orders 3.99 The first is the duty to obey lawful and reasonable orders. The classic statement of the doctrine of ‘obedience’ in modern Australian law is that of Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and O’Sullivan (1938) 60 CLR 601 at 621–2: … the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.

In McManus v Scott-Charlton (1996) 140 ALR 625, a public servant had been ordered not to contact another officer ‘other than in the course of official business’, after a history of sexual harassment. The plaintiff’s salary was reduced as part of

disciplinary action as a consequence of telephoning the other officer after office hours. [page 154] The plaintiff complained that the direction was not one he was required to obey, being outside the ‘scope of the contract of service’. Finn J, in the Federal Court, held that the direction had a sufficient connection with the employment, being designed to correct a problem that was having a direct impact on the performance of officers in the workplace (other officers having also been previously harassed by the plaintiff). In particular, given the Commonwealth’s responsibilities under the Sex Discrimination Act 1984 (Cth), the order was a reasonable one. His Honour concluded (at [62]): … it is lawful for an employer to give an employee a direction to prevent the repetition of privately engaged in sexual harassment of a co-employee where: (i) that harassment can reasonably be said to be a consequence of the relationship of the parties as co-employees (ie it is employment related); and (ii) the harassment has had and continues to have substantial and adverse effects on workplace relations, workplace performance and/or the “efficient equitable and proper conduct” … of the employer’s business because of the proximity of the harasser and the harassed person in the workplace.

Of particular interest for our purposes are the following comments (at [59]): I would note in passing on this matter of consequences in the workplace that counsel for the applicant placed some emphasis — properly in my view — on the need for an employer to be sensitive to its potential liability to employees for “injury” (cf Safety Rehabilitation and Compensation Act, s 4) sustained in or as a consequence of the workplace environment; see also T MacDermott, “The Duty to Provide a Harassment-Free Work Environment”, (1995) 37 Jo of Indust Rels 495.78

The case provides a good example of how the law as to the duty to obey orders may interact with workplace health and safety requirements. We will return to the subject of discrimination and WHS law in Chapter 12.

3.100 There are many other common examples. Thus an employee directed to adopt a particular safety procedure, such as wearing goggles or other safety equipment, has a duty to obey the direction. However, the order needs to be reasonable as well as lawful. One example is Australian Government Railways Commission v Australian Railways Union of Workers (WA Branch) [1986] AILR ¶418.79 In this case an order was made requiring employees to wear safety glasses all day; the workers refused to do so, [page 155] the consequence of which was that their pay was docked. In the circumstances the Industrial Relations Commission of Western Australia held that the order, while lawful, was unreasonable, and the problem should have been addressed by a safety committee rather than simply by issuing a direction. In another case, Morris v Warman International Ltd [1996] IRCA 511, over a period of employment lasting some 20 years an employee had refused to wear safety glasses, despite repeated requests from supervisors. He claimed that he had a disability that made it extremely uncomfortable for him to wear the glasses. Finally, after formal written warnings, he was dismissed for continuing to refuse to wear the glasses. He appealed on the basis that his dismissal was unjustified under the ‘unfair dismissal’ provisions of the former Industrial Relations Act 1988 (Cth). He was successful on the basis that the judicial registrar found that the employer’s real reason for the dismissal was not the refusal to wear the glasses, but a desire to ‘downsize’ and to get rid of employees. The registrar seems also to have been influenced by the fact that the employer had tolerated the failure to wear glasses over a number of years. Nevertheless, the comments of the registrar make it fairly clear

that in another case, where the refusal to abide by safety requirements was not justified by medical or other reasons, such a refusal might amount to a valid reason for dismissal.80 An employee may be obliged to obey an order requiring a medical examination to be undertaken to determine their fitness to work, such as in Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32. There it was held that Qantas had a right to order a pilot whose health was at issue to provide a medical report before he was allowed to fly. 3.101 On the other hand, a number of cases establish that an employee is not obliged to obey orders of their employer where those orders would positively endanger the employee’s safety. In some situations this may be clear because the order would not be a lawful one. In Broken Hill Pty Co Ltd v Federated Ironworkers Assocn of Australia (NSW) [1976] AILR ¶255, Macken J said that for an order to be lawful it ‘must not conflict with any requirements of common law or statute law’. We will see that legislation imposes duties on both employers and employees in relation to safety, and an order that an employee work in unsafe conditions could arguably be viewed as a breach of that legislation, and not bound to be obeyed. [page 156] In other cases the courts have held that it would be unreasonable to require an employee to work in a situation of danger, at any rate where such danger had not been accepted as part of the employment: Robson v Sykes [1938] 2 All ER 612; Bouzourou v The Ottoman Bank [1930] AC 271. In Re Dismissal of Fitters by Broken Hill Pty Ltd (1969) 69 AR (NSW) 399 it was accepted that: … where the employee has grounds for genuine apprehension that the employee’s

personal safety might be endangered, there might be some excuse for refusing to obey orders and return to work.81

It is interesting to note that WHSA 2011 now contains a statutory recognition of this common law right.82 Duty of care and competence 3.102 An employee has a duty to carry out their job carefully and with the degree of skill commensurate with the job for which they were hired. This of course has implications in the area of safety. The degree of care required obviously extends to being careful not to injure fellow employees. This was made clear in Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555 (Lister). In that case Romford employed Lister as a truck driver. His father worked with him from time to time. While reversing his truck Mr Lister ran over his father, who was injured. The elder Mr Lister recovered damages from Romford on the basis of the younger Mr Lister’s negligence.83 Romford then sued the son, on the basis that he had been in breach of an implied term of his employment contract to exercise his skill as a truck driver with due competence and care. Romford — or more accurately Romford’s insurance company acting in Romford’s name — succeeded. The House of Lords held that there was indeed such a term of the contract, requiring the employee to drive carefully, and that since the employer’s damage had been caused by the breach of the term it was entitled to recover from the younger Lister. On the facts of the case there was apparently a suspicion that the father and son had in some way been acting fraudulently. Lister tried to respond to the action by in turn claiming that there was an implied term in his contract of employment that Romford would indemnify him for his own negligence. The court rejected that argument at the time. 3.103

Subsequent developments have changed the situation

dramatically in some states since Lister. This has mostly occurred through the enactment of specific legislation. The first New South Wales statute dealing with the issue was the Employee’s Liability (Indemnification of Employers) Act 1982 (NSW). This reversed the effect of Lister by providing that an employer could not seek indemnification from an employee [page 157] for the employee’s negligence, unless the action of the employee amounted to ‘serious and wilful misconduct’. Attempts were made to circumvent this legislation by using the provisions of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Pt 3, which required two people who were jointly liable for a tort to contribute jointly to a damages order. (See 5.82 where we discuss the operation of this Act.) However, in McGrath v Fairfield Municipal Council (1985) 156 CLR 672 the High Court held that this could not be done. The current New South Wales legislation is the Employees’ Liability Act 1991 (NSW), which confirms the High Court’s approach.84 The most important provision is s 3(1), which states: 3 Employee not liable where employer also liable (1) If an employee commits a tort for which his or her employer is also liable: (a) the employee is not liable to indemnify, or to pay any contribution to, the employer in respect of the liability incurred by the employer, and (b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort (unless the employee is otherwise entitled to an indemnity in respect of that liability).

The result is that an employee who negligently injures another person at work will not usually be liable in damages to their employer for breach of the implied contractual duty of care and competence, unless the behaviour can be characterised as ‘serious and wilful misconduct’ (an exception provided for in s 5 of the

New South Wales Act).85 Section 3(1)(b) also excludes possible personal liability owed in a negligence action [page 158] that might be brought by the injured fellow employee. However, it will not preclude an action against an independent contractor who injures a worker.86 But in most situations, even assuming a breach of duty could be proved (which will often be harder to do in the case of a fellow worker than it will in the case of the employer), an individual contractor will not be worth suing financially. Nor does the inability of an employer to sue for these sorts of damages remove the implied term of the contract to exercise care for fellow workers for all purposes. A negligent act which led to the injury of a fellow employee, while it could not lead to an order for damages in favour of the employer, might obviously still amount to a breach of the contract of employment and thus justify dismissal of the wrongdoer. 3.104 The Insurance Contracts Act 1984 (Cth) also contains a provision relating to an employee’s liability. Section 66 of that Act prevents an insurer, where the employer has a right of action against an employee, from taking action in the employer’s name against the employee. But s 9(1)(e) of the Act excludes the application of the Act to: … contracts and proposed contracts … (e) entered into or proposed to be entered into for the purposes of a law (including a law of a State or Territory) that relates to: (i) workers’ compensation.

This section may, therefore, be of limited relevance for our purposes.87 3.105 In addition to these statutory ‘overrulings’ of Lister, the recent trend in the courts has been to suggest that a contract of

employment may well contain an implied term that the employer will indemnify the employee for their negligence, at least in the situation where driving a car is part of the employee’s duties: see Rowell v Alexander Mackie College of Advanced Education (1988) Aust Torts Rep ¶80-183.88 [page 159] It should be noted that Lister is still formally good law in those states of Australia where legislation such as the Employees Liability Act 1991 (NSW) has not been introduced, although for purely pragmatic reasons it seems not often to be invoked.89 As an example, however, of an attempted claim under common law principles in Canada, see Douglas v Kinger, 2008 ONCA 452. There a 13-year-old employed to do ‘odd jobs’ around a holiday cottage carelessly caused a fire which burned the house down; the insurance company of the owner sued the boy for the damages it had to pay out. The Ontario Court of Appeal rejected the claim on broad ‘policy’ grounds, holding that in light of the ‘parties’ expectations, representations and reliance, ‘it would be neither just nor fair to impose the loss on the respondent’: at [54]. With respect, I doubt that this somewhat loose analysis would be used by an Australian court (though it is hard to disagree with the result).90 Duty of attendance 3.106 There is an implied duty not to be absent from work without good cause during the time of work: Adami v Maison de Luxe (1924) 35 CLR 143. This case was cited recently by the Full Federal Court in Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [12]. Duty of good faith

3.107 Finally, the courts have held that there is an implied term of the employment contract that the employee will work ‘in good faith’. This is a very wide term that covers a range of issues, from not taking bribes to not disclosing company secrets.91 In relation to this implied duty Gleeson CJ, Gaudron and Gummow JJ said in Concut Pty Ltd v Worrell [2000] HCA 64 at [25] ff: In Pearce v Foster,1 Lord Esher MR stated it to be a “rule of law” that “where a person has entered into the position of servant, if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him”. In Blyth Chemicals Ltd v Bushnell,2 in the course of considering the position of the respondent, who was the manager of the appellant’s business, Starke and Evatt JJ said:3 As manager for the appellant, the respondent was in a confidential position. And it is clear that he might be dismissed without notice or compensation if

[page 160] he acted in a manner incompatible with the due and faithful performance of his duty, or inconsistent with the confidential relation between himself and the appellant.

In the same case, Dixon and McTiernan JJ said:4 Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. [emphasis added] 1.

(1886) 17 QBD 536 at 539. See also the discussion by Viscount Simonds in Sterling Engineering Co Ltd v Patchett [1955] AC 534 at 543–4 and in Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 at 575–6; cf Scally v Southern Health and Social Services Board [1992] 1 AC 294 at 306–07; Mahmud v Bank of Credit and Commerce International SA [1998] AC 20 at 34–5, 45–6.

2. 3.

(1933) 49 CLR 66. (1933) 49 CLR 66 at 72–3.

4.

(1933) 49 CLR 66 at 81.

These propositions were also strongly affirmed by Kirby J: at

[51]. 3.108 Palmer J summed up the common law in this area well in Digital Pulse Pty Ltd v Harris [2002] NSWSC 33 at 20–2: An employee has a duty to act in the interests of the employer with good faith and fidelity. That duty is implied in every contract of employment if it is not otherwise imposed by an express term. In addition, the duty is imposed upon every employee by the law of fiduciaries, the relationship of employer and employee being recognised as a paradigmatic fiduciary relationship. The obligations imposed by the duty are not coterminous with the employee’s normal working hours: they govern all the activities of the employee, whenever undertaken, which are within the sphere of the employer’s business operations and which could materially affect the employer’s business interests. Whether a particular activity could materially affect the employer’s business interests is a question of fact and degree. The duty of loyalty requires that an employee not place himself or herself in a position in which the employee’s own interest in a transaction within the sphere of the employer’s business operations conflicts with the employee’s duty to act solely in the employer’s interest in relation to that transaction. A fortiori, an employee may not take for himself or herself an opportunity within the sphere of the employee’s business operations without the employer’s fully informed consent.92 [emphasis added]

[page 161] ‘Acting in the interests of the employer’ in the WHS area might presumably involve being alert to possible safety lapses that have the potential to create liability for the employer.

Duties of employer to third parties: vicarious liability 3.109 Under the previous heading we considered the consequences of the employment contract for the duties of the parties to each other. In this section we consider the consequences of the employment contract for injuries that might be suffered by a third party. The doctrine of vicarious liability only operates where

there is a question of an injury caused by an employee to some other person, and it is claimed that the employer might be liable to the other person.

Introduction 3.110 In general the principle established by a long line of cases is that an employer may be held ‘vicariously liable’ for the wrongful actions of its employee where those actions are carried out ‘in the course of’ the employee’s employment, even if the employer is not personally ‘at fault’. This means that the actions of the employee, where they injure a third party, are regarded as the actions of the employer. This doctrine will often be applied in circumstances where the employer had no knowledge at all of the wrongful actions of the employee; nevertheless, there will still be legal liability. The origins of the doctrine of vicarious liability lie partly in history and partly in ‘public policy’. As the majority judgment of the High Court (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) commented in Hollis v Vabu [2001] HCA 44 at [34]–[35]: In Darling Island Stevedoring and Lighterage Co Ltd v Long,1 Fullagar J expressed the view, surely correctly, that the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy. A fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law. Dean Prosser and Professor Keeton observe:2 A multitude of very ingenious reasons have been offered for the vicarious liability of a master: he has a more or less fictitious ‘control’ over the behavior of the servant; he has ‘set the whole thing in motion’, and is therefore responsible for what has happened; he has selected the servant and trusted him, and so should suffer for his wrongs, rather than an innocent stranger who has had no opportunity to protect himself; it is a great concession that any man should be permitted to employ another at all, and there should be a corresponding responsibility as the price to be paid for it — or, more frankly and cynically, ‘In hard fact, the [real] reason for [employers’] liability is … the damages are taken from a deep pocket.3 [footnote omitted]

[page 162] Each of these particular reasons is persuasive to some degree but, given the diversity of conduct involved, probably none can be accepted, by itself, as completely satisfactory for all cases.4 1.

(1957) 97 CLR 36 at 56–7.

2. 3.

Prosser and Keeton on the Law of Torts, 5th ed (1984), §69 at 500. Baty, Vicarious Liability, (1916) at 154.

4.

The imperfections of the various rationales are discussed in Note, ‘An Efficiency Analysis of Vicarious Liability Under the Law of Agency’ (1981) 91 Yale Law Journal 168 at 169–73; Flannigan, ‘Enterprise Control: The Servant-Independent Contractor Distinction’ (1987) 37 University of Toronto Law Journal 25 at 26–37; Davis, ‘Vicarious Liability, Judgment Proofing, and Non-Profits’ (2000) 50 University of Toronto Law Journal 407 at 409–12.

3.111 In New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4, Gummow and Hayne JJ again reviewed the policy bases of the doctrine at [196] ff. Their Honours noted that justifications have been offered in terms of ‘loss-distribution’ in the community (effectively the so-called ‘deep pockets’ principle); that those who create a risk by running an enterprise should bear a large share of that risk; and that the doctrine acts as a deterrent against employers having a careless attitude to safety, and will encourage them to choose staff carefully. In Majrowski v Guys and St Thomas’ NHS Trust [2006] UKHL 34, Lord Nicholls commented on the policy issues in a similar way (at [9]): Whatever its historical origin, this common law principle of strict liability for another person’s wrongs finds its rationale today in a combination of policy factors. They are summarised in Professor Fleming’s Law of Torts, 9th ed, (1998) pages 409– 10. Stated shortly, these factors are that all forms of economic activity carry a risk of harm to others, and fairness requires that those responsible for such activities should be liable to persons suffering loss from wrongs committed in the conduct of the enterprise. This is ‘fair’, because it means injured persons can look for recompense to a source better placed financially than individual wrongdoing employees. It means also that the financial loss arising from the wrongs can be spread more widely, by liability insurance and higher prices. In addition, and importantly, imposing strict liability on employers encourages them to maintain standards of ‘good practice’ by

their employees. For these reasons employers are to be held liable for wrongs committed by their employees in the course of their employment.

Lord Phillips in Catholic Child Welfare Society v Various Claimants [2012] UKSC 56; [2013] 1 All ER 670 at [35] more recently summed up the general policy reasons behind vicarious liability as follows: The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

[page 163] (ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) The employee’s activity is likely to be part of the business activity of the employer; (iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; and (v) The employee will, to a greater or lesser degree, have been under the control of the employer.

3.112 The doctrine, while it had roots in earlier decisions, of course became much more important at the time of the Industrial Revolution, which saw the rise of large numbers of employees engaged by ‘masters’ who did not necessarily supervise them directly, and the potential for harm to be done to others by the development of industrial activity. Giliker comments: [T]ruly vicarious liability arises only by the end of the seventeenth century at a time of expansion in commerce and industry. Holt CJ promulgated a test of implied command and set down the foundations for the modern doctrine in a number of judgments. In Boson v Sandford in 1691, Holt CJ famously stated that ‘for whoever employs another is answerable for him, and undertakes for his care to all that make use of him’.93 Although there are signs that liability was, even in the time of Chief

Justice Holt, limited to where the employee was going about his master’s business, from the 1800’s the courts started to develop the course of employment test.94

Neyers95 suggests that vicarious liability (for employees at least) can be more satisfactorily justified as a finding that there is an implied term of a contract of employment that the employer will indemnify the employee for any wrongs committed by the employee in the course of employment, along with a further rule which permits the victim of the harm to ‘short-circuit’ their need to sue the employee and allows them to sue the employer directly. This view has not yet been recognised by the courts but does seem to explain a number of features of the law of vicarious liability (though, as Neyers acknowledges, its acceptance would involve the need to overrule the controversial decision of Lister v Romford Ice & Cold Storage Co [1957] AC 555, discussed above: see 3.102).96 3.113 Whatever the theoretical difficulties of the doctrine, it is deeply rooted in the legal system. Note, however, that this fictional attribution of the employee’s actions to the employer does not at common law exonerate the employee from his or her own [page 164] personal liability.97 That is why, in the absence of legislation such as that discussed above,98 an employee may remain liable to an employer for damages occasioned by their own negligence. However, the principle of vicarious liability means that, in appropriate circumstances, when an employee is negligent the employer will also be able to be sued for that negligence. In practice, of course, the employer will usually be the only party with sufficient resources to be worth suing.

Tort law

3.114 We will see in Chapter 4 that a person may be liable in the law of torts for negligence in certain circumstances.99 Where an employee is acting ‘in the course of his or her employment’, and commits a negligent act, then there is a general principle of law that the employer will be liable for damage caused by the employee. What does it mean for the wrongful action to be done ‘in the course of employment’? Usually this is not a very strict test: as long as in some sense it can be said the employee is ‘doing what they are paid to do’, then the test will usually be satisfied. So, for example, the courts have often found that an employee is acting in the course of their employment even when the employee is actively disobeying the employer’s instructions. The test that is usually adopted, in cases of carelessness, is to ask: was the employee doing an act they were authorised to, but doing it in an unauthorised way? Or was the employee acting on their own account, ignoring their employment altogether? Negligence and course of employment 3.115 We will first consider this situation where the actions alleged to occur were careless, rather than deliberate. In Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509, a petrol tanker driver was smoking while siphoning petrol from his lorry into an underground tank, and blew up the whole area when he threw down a match. Viscount Simons LC commented that the driver’s duties included turning the taps on and off. He said (at 514): [page 165] In circumstances like these, ‘they also serve who only stand and wait’. He was presumably close to the apparatus, and his negligence in starting smoking and in throwing away a lighted match at that moment is plainly negligence in the discharge of the duties on which he was employed by the respondents.

Another example is the case of Phoenix Society Inc v Cavenagh (1996) 25 MVR 143, where a bus driver caused an accident while drunk. Although he had been told by the employer not to drink, the employer was still found to be vicariously liable. In a number of cases even the breach of a direct order from the employer has been held not to take the employee outside the scope of employment. In Bugge v Brown (1919) 26 CLR 110, the defendant, a grazier, sent his employee, Winter, out to an isolated part of the station to do some work, and gave him some chops for his lunch. He specifically ordered him to cook them at an old house where there was a proper kitchen. Instead, Winter used an old chimney nearer where he was working, and as a result fire broke out and burned Bugge’s property. Despite Winter’s disobedience, the High Court held that he was acting in the course of his employment, and held Brown, the employer, liable. 3.116 Still, there are some actions that are so unconnected with what the employee is being paid to do that they will not be seen as being within the course of employment. These are sometimes described as cases where the employee is on a ‘frolic of his own’, a curious phrase which seems to have been first used in Joel v Morison (1834) 6 C & P 501 by Parke B. Examples where an employee has been held to be off on one of these ‘frolics’ include McClure v Commonwealth [1999] NSWCA 392, where a soldier purloined a piece of ammunition as an ornament and it later exploded, and Hilton v Thomas Burton (Rhodes) Ltd [1961] 1 All ER 74, where employees had gone to a café to wait until ‘knock-off’ time. In Heasmans v Clarity Cleaning Co [1987] ICR 949, an employee of a cleaning company committed the tort of conversion by making long-distance phone calls while in the plaintiff’s premises. He was held to be acting outside the course of his employment.100 In Klesteel Pty Ltd v Mantzouranis [2008] NSWSC 194, a mechanic, who had been drinking alcohol for some time after hours, drove his work vehicle (which bore the employer’s logo),

and collided with a car. The court held that he was not acting in the course of his employment and that the employer was not liable, stating (at [44]–[46]): The facts found by the Magistrate so far as they are relevant to the issue of vicarious liability were as follows: (a) the vehicle that caused the damage was owned by Klesteel; (b) the driver of the vehicle was employed as a mechanic by Klesteel;

[page 166] (c) the driver was driving under the influence of alcohol at the time of the accident; (d) the vehicle was ‘part of his package’ as an employee but that did not in any way affect the relationship between the employee and the employer; (e) the driver was permitted to use the vehicle for his own private and domestic purposes; (f) Klesteel was a reasonably large company engaged in the business of supplying machinery and vehicles; (g) the driver was employed as a mechanic whose duties were to carry out repairs or maintenance on such equipment located at different places around the greater metropolitan areas; (h) although it was apparently infrequent, he might be required on occasions to make such calls during out of work hours and accordingly his custody of the vehicle was a matter of convenience for both him and the employer. There was no finding that he was making a maintenance call at the time of the accident. There was no connection between his driving on the relevant occasion and his duties of employment. He was not driving in the intended performance of his duties. In my view, the only result reasonably open on the strength of her Honour’s findings of fact is that, on the occasion of the accident, Mr Mercado was not acting in the course of his employment.

3.117 Blake v J R Perry Nominees Pty Ltd [2010] VSC 272 (Blake) is another example of a case where an employee’s action was outside the ‘scope’ of the employment. Blake, a truck driver, and another employee, Jones, were standing by a beach waiting for a ship to arrive so they could pick up a load. As a prank, Jones kicked Blake in the leg, causing him to fall and as a result suffer some quite severe injuries.

There was no evidence that Jones had been vicious or in any way prone to these sort of actions. Jones’ actions, while not malicious, were clearly intentional and constituted both a tortious battery and a criminal offence: see [36]. The court held that there was no element of ‘personal’ fault on the part of the employer; it was not in any way foreseeable that such an incident would occur. The question then was: was the company vicariously liable for the actions of its employee Jones? The court held it was not. The case was quite similar to Deatons v Flew (see 3.120 below) in that it concerned an assault that was in no way connected with employment duties. The judge applied the ‘close connection’ test discussed below (see [68]): there was no express or implied authority for Jones to play pranks on fellow workers; it was no part of his duties to inflict violence (unlike the bouncer cases); and this action was not ‘closely connected’ with what he was paid to do: at [84]–[94]. There had been one previous case in which a ‘prank’ of a similar sort had been accepted as part of the scope of employment: Hayward v Georges Ltd [1966] VR 202 (Hayward). In that case, one worker on the way to the tea-room robustly thumped another worker on the back, leading to injury. There a jury found that the action was within the scope of employment as an ‘exuberant’ way of doing the job, and the trial judge supported the jury’s verdict as a possible finding. However, the judge in Blake distinguished Hayward, and it seems unlikely that it is good authority today. This decision then went on appeal, and the trial judge’s ruling was upheld by a 2:1 majority, in Blake v J R Perry Nominees Pty Ltd [2012] VSCA 122. The majority (Harper [page 167] JA and Robson AJA) agreed (at [66]) that the employer was not vicariously liable, and that this was a case like Deatons v Flew: The action of Mr Jones in hitting Mr Blake and thus causing his near collapse was done neither in furtherance of the interests of J R Perry Nominees Pty Ltd nor under

its expressed or implied authority. Nor was it an incident to or in consequence of anything Mr Jones was employed to do. It was a spontaneous act of a prankster. No proper thought was given to it. The occasion for the prank, and the form it took, may have arisen from the fact that Mr Jones was a truck driver employed by the defendant; but a prank of this kind, generated wholly within the confines of Mr Jones’ brain, was not within the course of his employment as a truck driver.

Neave JA, however, disagreed; her Honour took the view that this was best described as ‘horseplay while waiting to do one’s job’ and hence was sufficiently connected with the employment. She commented (at [14]): An approach under which an employer may be held vicariously liable for the serious criminal act of sexual abuse, or for the defalcation or theft by an employee, but not for an injury caused by an employee in a brief episode of horseplay while waiting to perform a required task, is difficult to justify on policy grounds.

In a recent United Kingdom decision, Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47, another ‘horseplay’ case, one worker had been doused by another with a flammable thinning agent and set on fire. Applying the United Kingdom and Canadian decisions we will be considering below, Longmore LJ (for the court) held that there was not a ‘close enough connection’ between the work and the wrong; while the work involved the use of the thinner, there was no encouragement to use it in this way! 3.118 Other cases also illustrate the principle that an employee may even be doing something with the permission of an employer, and still not be acting ‘in the course of employment’ for the purposes of the doctrine of vicarious liability. In Crook v Derbyshire Stone Ltd [1956] 2 All ER 447, a truck driver had permission to stop by the road and visit a café for refreshment. While crossing the road to the café he was involved in a collision with a motorcycle that led to injuries to the motorcyclist. The court held that his employer, however, was not vicariously liable, as while he was authorised to do the action concerned, it was not something he was doing which he was ‘employed to do’ — it was purely for his own benefit.101

[page 168] In Stenner v Taff-Ely Borough Council (United Kingdom Court of Appeal, Civil Division, 15 May 1987, unreported), a gym instructor had been given permission from the owners of the gym, the council, to open the gym on the weekend to allow a friend to use the equipment. When the friend was severely injured the court held that the council could not be held vicariously liable. Once again, although the action was ‘authorised’, it was not done for the benefit of the employer and hence not in the course of employment. Similar reasoning seems to lie behind the decision of the High Court in Commonwealth v Cocks (1966) 115 CLR 413, where an employee had been given permission (and the offer of reimbursement of petrol and costs) to drive his own car in relocating from Canberra to Melbourne, and while on the journey his wife was injured. The court held that, as the employee was not doing what he was employed to do, the Commonwealth was not vicariously liable to the wife. Course of employment and intentional wrongdoing 3.119 While the general phrase ‘doing what they were paid to do’ seems apt to describe the negligence cases, it becomes more difficult when situations of intentional wrongdoing are considered. It will usually be clear that an act of hitting or otherwise attacking someone else is not what an employee was ‘paid to do’. In an older High Court case, Deatons Pty Ltd v Flew (1949) 79 CLR 370, a barmaid (by the amazing name of Opal Ruby Pearl Barlow) was insulted by a drunken customer; she threw a glass of beer at him, and the glass slipped out of her hand and also hit him on the face. The customer sued both the barmaid and her employer. In rejecting the action against the employer Dixon J said (at 381–2):

… it was an act of passion and resentment done neither in furtherance of the master’s interests nor under his express or implied authority, nor as an incident to, or in consequence of, anything the barmaid was employed to do.

As a result the barmaid was found to have not been acting ‘in the course of her employment’. Other cases in which an employee has committed the tort of battery (the name of the tort involving an intention to touch or hit someone else) while in some sense ‘at work’, but where there has been found to be no vicarious liability, include Keppel Bus Co v Sa’ad bin Ahmed [1974] 1 WLR 1082 (bus conductor struck passenger in course of verbal altercation unrelated to collection of tickets) and Warren v Henleys Ltd [1948] 2 All ER 935 (petrol pump attendant struck customer).102 The decision of the House of Lords in Lister v Hesley Hall Ltd [2001] UKHL 22 dealt with the vexed question of whether the doctrine of vicarious liability can apply to intentional, as opposed to careless, actions. In that case the warden of a school boarding house had committed a number of sexual assaults on students in his care. [page 169] Some of the students later sued the school, claiming that it was vicariously liable for the warden’s actions.103 The House of Lords unanimously found the school vicariously liable. In doing so they commented that the traditional test for vicarious liability (stated above: see 3.113), that the action must be in some sense what the person was employed to do, may need to be restated in the case of intentional torts. After all, it could hardly be said that in assaulting the boys the warden was in any sense ‘doing what he was paid to do’. The test in these cases, however, is whether the wrongful act was ‘so closely connected’ with the employment that the employer should be held liable.104 In particular, where the employer has been entrusted with the care of

somebody, and has then entrusted that care to the employee, it will not be hard to find a sufficiently ‘close connection’.105 In coming to their decision the House of Lords adopted essentially the same approach as suggested by the Canadian Supreme Court in the similar child abuse case of Bazley v Curry [1999] 2 SCR 534.106 3.120 In the later case of Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 1 All ER 97, the House of Lords generally affirmed this approach to the question of ‘course of employment’. While that case involved the liability of partners, and specifically the phrase in the relevant legislation ‘acting in the ordinary course of business’, the members of the House took the view that the test was really the same. Lord Nicholls said (at 23): Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorized to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.

[page 170] Acknowledging that this ‘sufficient close connection’ test leaves a lot to be desired in terms of predictability, Lord Nicholls said that the court will have regard to the course of previous decisions in making a judgment about whether the connection is established. In that particular case the parties accepted that a solicitor, Mr Amherst, was ‘acting in his capacity as a partner’ of the firm when drafting documents which led to fraud on Dubai Aluminium. This implied that he was clearly acting on behalf of the firm, rather than simply in his own interests. The firm was found to be vicariously liable. Lord Hobhouse commented on this issue later in the judgment (at 129): But the circumstances in which an employer may be vicariously liable for his employee’s intentional misconduct are not closed. All depends on the closeness of the connection between the duties which, in broad terms, the employee was engaged to perform and his wrongdoing.107

In Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 (Mohamud) a customer who simply went into a service station to ask if they did printing, was savagely attacked and beaten by the salesman, Mr Khan, who was behind the counter. The Court of Appeal held (see [2014] EWCA Civ 116) that there was no vicarious liability, as the salesman had no responsibility for ‘keeping order’ and the attack was simply motivated by racial hatred rather than by any aspect of the employment duties: see [49]. The United Kingdom Supreme Court, however, in its 2016 decision, overturned that decision and held that there was a sufficiently ‘close connection’ between what the worker was employed to do, and the harm he committed. Lord Toulson articulated the test in this way (at [44]–[45]): The first question is what functions or ‘field of activities’ have been entrusted by the

employer to the employee, or, in everyday language, what was the nature of his job. As has been emphasised in several cases, this question must be addressed broadly… Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice … The cases in which the necessary connection has been found … are cases in which the employee used or misused the position entrusted to him in a way which injured the third party.

Here Mr Khan’s job was to ‘attend to customers and to respond to their inquiries’ — see [47]. He injured the customer in events which flowed directly on from those activities. However, it has to be said that the result in Mohamud seems to be inconsistent with the outcome and reasoning in the Australian decision in Deatons v Flew, noted earlier at 3.120; and there is some doubt as to whether the High Court of Australia would be prepared to over-rule Deatons. [page 171] 3.121 This issue received detailed attention from the High Court of Australia in New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4 (Lepore), although due to the differing approaches of the judges in that decision there is still some remaining uncertainty about the relevant law. In Lepore, an appeal from the New South Wales Court of Appeal,108 it was alleged that a sexual assault was committed on a student by a teacher on school premises and in school hours. It was heard in the High Court at the same time as an appeal from two similar cases heard in Queensland.109 In the decision appealed from, the New South Wales Court of Appeal by majority (Mason P and Davies AJA; Heydon JA dissenting) found that the New South Wales Government was liable for the assault. Liability was imposed, however, not on the grounds of vicarious liability,110 but on the basis that the school had a ‘non-delegable duty of care’ to the student — as the teacher

had breached this duty the school was therefore liable. We will return to the issue of ‘non-delegable duties’, and the relevance of the High Court decision in Lepore to this area, in Chapter 4. The majority of the High Court in Lepore specifically addressed the issue of vicarious liability for an intentional wrong.111 Their Honours all accepted that it is possible for vicarious liability to exist in the case of an intentional tort: two old English cases had established that there was liability in the case of fraud and theft.112 The difficult question was to define the circumstances in which an intentional wrong, such as sexual assault, could be said to be ‘in the scope of employment’. 3.122 To summarise the different judgments, the result of the case is that it is possible for there to be vicarious liability of an employer for an intentional assault committed by an employee. Their Honours who so held113 seemed to adopt three possible tests for the situation where such liability will exist: 1.

According to Kirby J the appropriate test for vicarious liability in this context is, in accordance with the English and Canadian cases, to simply ask whether there is a ‘sufficiently close connection’ between the employer’s enterprise and the wrongful [page 172]

2.

conduct of the employee: see [273], [320]. Gleeson CJ, in asking the question of ‘sufficient connection’ (at [74]), seems to support a similar test.114 Gummow and Hayne JJ in their joint judgment prefer to articulate the test in terms drawn from the judgment of Dixon J in Deatons v Flew Pty Ltd (1949) 79 CLR 370 — that vicarious liability should only attach to an employer where the wrongful conduct was done either in the actual or apparent

3.

pursuit of the employer’s interests or in the course of authority which the employer held the employee out as having: see [239]. Gaudron J seems to suggest that the question is whether the employer is ‘estopped’ from denying that the employee had authority to carry out the wrongful act in question: see [130]. But this is not a narrow test; her Honour suggests that the fact that a teacher is allowed to chastise a child in a secluded area may amount to such an estoppel: see [132].

The comment of Lord Phillips on this decision, in the later United Kingdom case of Catholic Child Welfare Society v Various Claimants [2012] UKSC 56; [2013] 1 All ER 670 at [82] seems fairly apt: … the High Court of Australia, when considering whether a school authority could be vicariously liable for sexual assault committed on a pupil by a teacher, has shown a bewildering variety of analysis: New South Wales v Lepore [2003] HCA 4; 212 CLR 511.

Perhaps the best that can be said by way of summary of the decision in this case is that it may well be possible that an employer will be vicariously liable for the wrongful intentional act of an employee, and will indeed be likely if the first two of the above tests are satisfied: that the wrongful act is ‘closely connected’ with the employer’s enterprise; and that it is done in actual or apparent pursuit of the employer’s interests. Further clarification may have to await a course of judicial decision.115 3.123 The application of principles of this kind to another sexual abuse case can be seen in Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256. In that case a claim was made against the church for sexual abuse committed by a priest who had been given a ‘youth worker’ role; the priest met the plaintiff at a ‘disco’ he had organised, and later developed the relationship by getting him to do odd jobs around the house. (The priest was conceded to be an ‘employee’ of the diocese, a concession which the court in this decision accepted.)

The trial judge had found that there was not a ‘sufficiently close connection’ to the [page 173] church, as the boy had not attended church services nor was a member of the local congregation. The Court of Appeal overturned this decision. They said that the connection was to be found in a number of features of the relationship: the very fact that the priest wore clerical garb and worked in the community with the authority of the church put him in a position of trust which he had abused; the priest had been designated to work with young people; he had met the plaintiff at a church-sponsored disco; and some of the abuse occurred in his premises which were church-owned and provided for use by clergy. Lord Neuberger MR also noted (at [46]) that another feature of the case was that the priest had a ‘duty to evangelise’, and hence it was part of his job to meet people who were not already members of the church. The other members of the Court of Appeal agreed generally with the judgment, but stressed that even where a church did not impose such a duty, it would still be possible to find vicarious liability where, as stated by Smith LJ (at [95]), the body ‘clothe[d] the priest or pastor with the ostensible authority to create situations which the priest or pastor can and does then subvert for the purposes of abuse’. In JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, the Court of Appeal ruled that priests working in the diocese, while not formally employees, were in position ‘sufficiently akin’ to employment that the diocese could be held vicariously liable for their actions.116 The relationship between their work and the harm done was ‘sufficiently close’ for this to be established; the priest had been placed in a position of

power and trust by the bishop, and the bishop had sufficient general control over what the priest did to be held responsible. In Catholic Child Welfare Society v Various Claimants [2012] UKSC 56 noted previously, Lord Phillips (at [92]) found that the Institute were vicariously liable for sexual assault committed by individual brothers (where the school in question was a residential school for ‘troubled’ boys): Living cloistered on the school premises were vulnerable boys. They were triply vulnerable. They were vulnerable because they were children in a school; they were vulnerable because they were virtually prisoners in the school; and they were vulnerable because their personal histories made it even less likely that if they attempted to disclose what was happening to them they would be believed. The brother teachers were placed in the school to care for the educational and religious needs of these pupils. Abusing the boys in their care was diametrically opposed to those objectives but, paradoxically, that very fact was one of the factors that

[page 174] provided the necessary close connection between the abuse and the relationship between the brothers and the Institute that gives rise to vicarious liability on the part of the latter.

3.124 In a Canadian decision, Reference re Broome v Prince Edward Island 2010 SCC 11, the Supreme Court of Canada ruled, however, that the Provincial Government was not vicariously liable for alleged sexual abuse committed in private children’s homes. The province did not employ the workers in the homes, and there was not a sufficiently ‘close connection’ to impose vicarious liability: see, for example, at [64]. In NA v Nottinghamshire County Council [2015] EWCA Civ 1139 at [15] the English Court of Appeal also held that the relationship between ‘foster parents’ entrusted with the care of a child in their families, and the local authority who had entrusted the child, was not such as to impose vicarious liability on the authority for wrongs committed by the foster parents. In a case involving the tort of ‘conversion’ (the civil action for

theft), Brink’s Global Services Inc v Igrox Ltd [2010] EWCA 1207, the company, Brink’s, were carriers who had accepted a shipment of silver bars to be carried from a bank in London to a bank in India. The pallet on which the load was being carried had to be fumigated before being loaded on a ship. An employee of Igrox, the fumigation company, managed to steal a number of the silver bars while purportedly doing the fumigation. The question was whether Igrox was vicariously liable for the theft committed by its employee. After a review of recent decisions (including the line of decisions from Lister) the Court of Appeal held that the company was vicariously liable: there was a ‘sufficiently close connection’ between the work which Igrox was engaged to do, and the risk of theft, which was ‘reasonably incidental’ to the purpose of the employment: see, for example, at [30]. The decision seems to have been influenced by the fact that, while a container was being fumigated, Igrox effectively had total control over who did, and did not, enter the container. 3.125 We can apply the principles from Lepore to workplace injuries generally. If an employee assaults a fellow employee, then in many circumstances the employer may be held liable. Obviously, there will still be some cases where the assailant will be held to be acting ‘outside the course of employment’, or where there is not a ‘sufficiently close connection’ between the employment and the assault. Bill Williams Pty Ltd v Williams (1972) 126 CLR 146, where the worker, Williams, was shot by a man who claimed that Williams was having an affair with his (the assailant’s) wife, might be such a case, if the assailant was a fellow employee.117 For a case where an employer was [page 175] held vicariously liable for what seemed to be an unlawful assault

by an employee, see Knight v State of New South Wales [2001] NSWSC 1096.118 See also Canterbury Bankstown Rugby Football League Club Ltd v Rogers (1993) Aust Torts Rep 81-246, where a professional rugby league player was able to recover damages for battery, based on a head-high tackle by another player, from the other player’s club as employer. 3.126 Lepore has subsequently been considered in other decisions on this issue of vicarious liability. In Gordon v Tamworth Jockey Club Inc [2003] NSWCA 82, a volunteer who was assisting at a race meeting was suddenly and violently assaulted by a cleaner working on the course who had become drunk. The court referred to the discussion in Lepore but concluded (at [16]–[17]) that the employer was not vicariously liable on whatever view was taken of the decision. The cleaner was not engaged in ‘keeping order’ or in any other sense doing what he had been given authority to do. The court in this case also rejected the ‘personal’ liability of the club for failure to control the employee, despite the fact that a member of the committee had passed by just prior to the incident and seen the drunken cleaner throw a glass bottle (at a possum), which smashed on the ground just near the plaintiff. With respect to the court, I tend to agree with White and Orr’s comments on this aspect of the case — that it seems slightly harsh not to conclude that there was at least some breach of care by the club when it had become aware that not only was the employee drunk but that in a general sense he seemed to be careless about whether or not he was threatening the plaintiff.119 3.127 A consideration of situations where injuries are caused by a ‘bouncer’ illustrates the difficult problems raised in this area. In a United Kingdom case, Mattis v Pollock [2003] EWCA Civ 887; [2003] 1 WLR 2158, the owner of a nightclub was found to be liable to pay damages to a patron of the club who was stabbed by the club bouncer. The case was unusual in that the bouncer had

been engaged in a fight with a group of customers, had left the premises to return home and collect a knife, and then returned to commit the assault. Despite the fact that the incident did not occur on the work premises, that some time had passed between the work-related fight and the later assault, and the fact that clearly the nightclub owner had no opportunity to prevent the bouncer’s action, the court held that it was so ‘closely connected’ with the bouncer’s work that there should be vicarious liability. The case is discussed in articles by Weekes and Giliker.120 [page 176] In New South Wales a similar situation arose in Starks v RSM Security Pty Ltd [2004] NSWCA 351. Starks was drinking at the Bondi Hotel and playing a video game when approached by the security guard for the hotel, Wilson, and asked to leave. Starks objected to being asked to leave, as he had not been bothering anybody. Wilson then head-butted Starks, causing him serious injury. The court found that Wilson’s response was in no way necessary or excusable. The trial judge awarded damages against Wilson, but refused to award damages against his employers, the firm RSM, because he said that Wilson was acting in a way that went far beyond the ‘scope of his employment’. The Court of Appeal applied the reasoning in Lepore and found that, while clearly unauthorised and inappropriate, the behaviour of the guard was ‘closely connected’ with what he was paid to do and hence the employer was liable. Beazley JA, who delivered the main judgment of the court, said (at [24]): Although Mr. Wilson’s action in head-butting Mr. Starks was unreasonable, uncalled for, and not a usual mode for a security officer to use to persuade a customer to leave hotel premises, the fact is, Mr. Wilson acted in that way in the course of seeking to have Mr. Starks leave the premises. In my opinion, his action was so directly connected with his authorised acts that this case is one that falls on that side of the line that makes the employer vicariously liable.

The court distinguished Deatons v Flew because in that case the High Court had said that it was not part of the barmaid’s duties to keep order in the bar. In this case it was precisely part of Mr Wilson’s duties to do so. 3.128 In Ryan v Ann St Holdings Pty Ltd [2006] QCA 217, where a club bouncer called some patrons back into the club and assaulted them, the club was held liable because the bouncer’s actions were so ‘closely connected’ with what he was paid to do: see Williams JA (at [18]) and Jerrard JA (at [38]).121 In yet another ‘bouncer case’, Sprod bnf Sprod v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319 (Sprod), Ipp JA, who gave the leading judgment, commented on the difficulty of knowing what test to apply after Lepore (at [54]): It is not easy to trace a certain and secure path through the dicta. The safest course is to attempt to apply all of them to the facts of the particular case. The answers that this course produces will assist in resolving the issue, particularly if the answers, or a substantial majority of them, are the same.

In Sprod, the plaintiff had been drunk and offensive to customers of a pizza shop which was protected by a security firm. The security firm guards escorted the plaintiff outside; two of them then took him down a side alley and gave him a brutal beating (causing brain damage) while two other guards were observed to be ‘keeping a lookout’. The trial judge held that there was no vicarious liability because the beating was effectively motivated by ‘blood lust’ on the part of the guards. However, after a careful analysis of the facts, Ipp JA was forced to conclude that this was not so. The beating appeared to have been administered in ‘cold blood’, and afterwards one of the [page 177] guards had said to the shop owner, ‘You won’t have to worry about him any more’. Ipp JA said (at [79], [84]):

In my view, these three matters outweigh the violence of the assault. There may well have been an element of personal animosity and personal vindictiveness, but, in my view, the three matters indicate that this element was not the dominant cause of the assault. In my opinion, the dominant cause of the assault was a desire on the part of the guards to do their duty by ensuring that the appellant would not again make a pest of himself at the shop, would not return to the shop, and would not again molest the customers, particularly Ms Synnerdahl (who was told ‘not to worry’ by one of the guards after the assault had occurred) … The remarks I have made explain why I consider the requirements laid down by Gleeson CJ in Lepore for liability by an employer for unauthorised criminal wrongdoing by an employee are satisfied. The same applies to the reasons expressed by Gaudron J in that case. The assault was committed in the intended pursuit of the respondent’s interests or in the ostensible pursuit of its business, and so satisfied the requirements of Gummow and Hayne JJ in Lepore (at 594, [239]). The connection between the unauthorised acts of the guards and the acts which their employer, the respondent, authorised, was sufficiently close, according to the criteria laid down by Kirby J in Lepore, to extend vicarious liability to the respondent for the intentional wrongdoing of its employees.

See Smith v Cheeky Monkeys Restaurant [2009] NSWDC 257 for another case where an employer was found vicariously liable for the actions of a bouncer. In Bilal Kassem v ACN 075092232 Pty Ltd (in liq) (formerly known as ‘Australian Event Protection Pty Ltd’) [2009] NSWDC 262, yet another bouncer case, the security firm was held vicariously liable for an assault committed by a bouncer in the course of evicting a violent and aggressive patron. Hungerford J said (at [94]): In the result, I find that the assault of the plaintiff by Mr Mataka was not some personal or independent act on his part but rather was incidental to his employment in that he had the task of effectively removing the disorderly plaintiff and denying him admission to the Club. Although the manner of doing so was excessive and quite improper, it was nonetheless sufficiently connected with the duty he was authorised to perform in the course of his employment. It follows, in my view, that the first defendant is vicariously liable for Mr Mataka’s acts against the plaintiff.

The issue of ‘bouncer’ cases can be further complicated when the relevant employee who intervenes to attempt to prevent an altercation is not employed as a security guard.122 3.129 In a ‘non-bouncer’ case, Ffrench v Sestili [2007] SASC 241, Ms Sestili ran a personal carer’s service for disabled persons. Ms Ffrench was unable to care for herself, and a Ms Brown was

engaged by Sestili to look after her. Having been given access to Ms Ffrench’s ATM card for shopping, Ms Brown managed to steal approximately $35,000 over several months (by withdrawing the money in large amounts from ATMs). [page 178] Was Sestili as the employer of Brown vicariously liable for the theft (a civil action in the tort of ‘conversion’)? The Full Court of the Supreme Court of South Australia (Debelle J in the leading judgment) gave a very careful analysis, applying Lepore, to find that she was in fact vicariously liable. An interesting issue arose concerning the precise circumstances of the thefts and whether all the money that was taken was sufficiently ‘closely connected’ with the employment. Approximately $7000 was from an account which was designated for day-to-day expenses and to which Brown had been given clear access; the balance of the money was withdrawn from another account and it was unclear how Brown had obtained the relevant password. However, in the end, Debelle J ruled that the circumstances of Brown’s employment — which gave her control over personal and confidential papers — were sufficiently connected to this account to make the employer vicariously liable for the theft from it as well. 3.130 Giliker argues that the best way of reading the cases on ‘close connection’ is to see them as standing for a rule that imposes vicarious liability for intentional wrongs only where the job the employee is engaged to do involves the ‘protection’ or ‘care’ of either persons or property: It is submitted that vicarious liability should be imposed for intentional torts only where the employee is engaged to perform duties of a protective or fiduciary nature which safeguard the interests of the employer or others … Vicarious liability for intentional torts should therefore only arise where the employee is entrusted with a protective or fiduciary discretion,123 that is, where the employee is entrusted to

protect the employer’s property, customers, employees, or specific individuals for whom the employer has taken responsibility. If this requirement is satisfied, then the court should examine whether the act in question was undertaken in the purported exercise of these duties.124

This view would have the advantages of excluding vicarious liability in a case such as Mattis, but allowing it in most of the other cases where it has so far been recognised. It is unclear, of course, whether the courts will be persuaded to adopt this suggestion. In particular, it may not be consistent with the somewhat broader view of the ‘scope of employment’ adopted by the United Kingdom Supreme Court in Mohamud, discussed above at 3.121.

Criminal law 3.131 Does the principle apply in the area of criminal law? In general, the criminal law has not imposed vicarious liability on employers for crimes committed by employees.125 An employee who commits a murder in the course of their employment, for example, will not see their employer sent to jail. [page 179] There is sometimes an exception to this, however, in the area of what are called ‘regulatory’ laws for the public benefit.126 Whether or not such an exception exists can often be a difficult question of statutory interpretation. As we will see when we examine the Work Health and Safety Act 2011 (NSW) in Chapter 7, most of the offences created by that Act are imposed directly on the ‘person conducting the business or undertaking’ (that is, often an employer: see 7.31), so that the scope for a claim of vicarious criminal liability is fairly small.127

Liability consequences of ‘independent

contractor’ status 3.132 If the employment relationship establishes such strong liability, what are the implications when the work is done for someone other than as an employee? If someone is an independent contractor, then in general a principal will not be automatically vicariously liable for all the actions of the contractor. In Hollis v Vabu [2001] HCA 44, the High Court commented (at [32]): It has long been accepted, as a general rule,1 that an employer is vicariously liable for the tortious acts of an employee but that a principal is not liable for the tortious acts of an independent contractor.2 1.

See the observations of Brennan J in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 575.

2.

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 329–30, 366.

3.133 This principle was reaffirmed in the High Court decision in Sweeney v Boylan Nominees Pty Ltd (2006) 80 ALJR 900; [2006] HCA 19 (Sweeney). Mrs Sweeney was injured in a service station by a fridge door which had become detached. The fridge had been serviced by Mr Comninos, who had done the job when requested by Boylan Nominees, the company who had supplied the fridge. The question was whether Mrs Sweeney could recover damages from Boylan. The New South Wales Court of Appeal and all the members of the High Court found that Comninos was not an employee. He was not wearing a uniform, he supplied his own tools and equipment, he invoiced Boylan on a job-by-job basis, and he was conducting his own business: see the majority, Gleeson CJ, Gummow, Hayne, Heydon, [page 180] Crennan JJ (at [31]); Kirby J (at [73]). So was there some basis on

which Boylan could be found vicariously liable for the negligence of a contractor? The majority of the court said no. The only real argument concerned the ongoing authority of Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 (CML), in which a very strong High Court bench (including Dixon J) had found that an insurance company was vicariously liable for defamation uttered by its contractor agent who was selling insurance on its behalf. According to the majority in Sweeney, the exception to the usual rule against vicarious liability for independent contractors that was found in CML should be confined to a narrow ratio. On one view (see [22]) it should only apply to the case of an agent with authority to bring about legal relations between the principal and third parties, and even there (perhaps) to ‘slanders uttered to persuade the third party to make an agreement with the principal’. This view, with respect, appears to be a little narrow. Arguably, the CML principle would cover other acts carried out in the course of contractual negotiations. One example might be Donut King Australia Pty Ltd v Barber [1999] SASC 241, where Donut King were held liable for damage caused by careless statements made in some sense on its behalf by a company negotiating a ‘sub-franchise’ with the plaintiffs. 3.134 Kirby J in dissent in Sweeney argued that CML was not as confined as expressed by the majority, and that there should be vicarious liability for the actions of a ‘representative agent’ who effectively ‘stands in place of’ the principal and ‘assumes to act in the principal’s right’: see [100] for the most thorough expression of the principle. Boylan had allowed Comninos to be regarded (in their words) as ‘our mechanic’, and he had been given authority to take payment. By virtue of his position as a representative of Boylan he had been given permission to enter the premises and work on the fridge: at [96]. However, on a consideration of the authorities, the majority

appear to have the stronger argument. Mr Comninos wore no uniform, drove his own truck and did not really ‘pretend’ to be part of Boylan’s organisation. (Kirby J specifically held that a reconsideration of the ‘organisation’ test for employment was not justified and must ‘await another day’: see [61] point (3)). It could be argued that the more natural reading of CML lies somewhere between the extremes of the majority and Kirby J — that there can be liability for the acts of ‘true’ agents (persons with authority to enter into contracts on behalf of a principal, which was not Mr Comninos’ position in CML); but that this liability should extend beyond liability for defamation into liability for other wrongs committed in the course of concluding a contract.128 This ‘general rule’ that there is no vicarious liability for contractors does not, however, mean that a principal can completely avoid liability for the actions of a contractor in all circumstances, nor that it will never owe duties to the contractor themselves. [page 181]

Liability for actions of contractor: ‘non-delegable duty’ 3.135 While the doctrine of ‘vicarious liability’ does not directly apply to a contractor, the courts have on a number of occasions held that there are some situations where a principal is liable for the actions of a contractor.129 The decision of the High Court in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 discusses different situations where this is so. In that case, the Port Authority had employed a contractor to carry out welding work near some particularly inflammable material, which caught alight and burned down a warehouse. The court held that in the circumstances the Port Authority were liable for the actions of the contractor. This was said to be on the basis of what the court called a ‘non-delegable duty’.

For the purposes of this book the main thing to note is that the duty of an employer to provide for the safety of its employees is one area where the employer will be held liable for negligent actions committed by an independent contractor it engages.130 That is, if a contractor C engaged by a principal P, injures one of P’s employees E through negligence, the employer P will also be liable, without proof of any other specific negligence on its part. This was clearly established in the High Court in Kondis v State Transport Authority (1984) 154 CLR 672. The State Transport Authority (STA) had engaged a contract crane driver for a job. He was attempting to extend the jib of the crane, when he dropped a heavy rod on the ground without looking to see if anyone was there. The rod injured Mr Kondis. The High Court held that the STA was liable for the negligence of the contractor. The duty of the employer to provide its employee with a safe system of work could not be satisfied by claiming that the employer had chosen a reliable contractor. The court said that the duty was ‘non-delegable’, that is, the fulfilment of the duty cannot be ‘delegated’ to someone else, and remains the duty of the employer, even when a contractor carries out the work. The duty will be deemed to be breached by the employer, if the contractor is negligent, even if the employer itself has taken all due care. Mason J concluded (at [688]): [T]he respondent’s duty to provide a safe system of work was non-delegable and the respondent was liable for any negligence on the part of its independent contractor in failing to adopt a safe system of work.131

3.136 While the above principles are well established, it is disturbing that senior courts still occasionally get them wrong. This seems (with respect) to have happened in Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148 (Placer).

[page 182] The injured employee in this case was a Mr Murphy, employed by Specialised Reline Services (SRS). He was injured when a crane being operated by a Mr Leach (employed by Drake) dropped a heavy load on him. Placer was the general occupier of the site (a gold mine). Placer and Drake accepted liability. (Leach’s action of moving the load over some unprotected workers was clearly careless, and Placer conceded it ought to have coordinated activities more carefully.) The issue was, however, whether SRS, the employer, could be held liable, for the purpose of being required to make a contribution to the damages being paid by the other companies. On the surface, the situation was so similar to that in Kondis that it is difficult to see how the two cases could be distinguished. However, both the trial judge and the Court of Appeal appeared to confuse the different aspects of non-delegable duty, and in the end the Court of Appeal held that the employer, SRS, was not liable at all. It is not to the point, of course (as reference to Kondis would show) that the employer had itself behaved without fault. The issue is whether the employer can be held liable under the law of non-delegable duty for carelessness by one of the other participants. There is one relevant distinction from Kondis, which is that SRS had not ‘engaged’ either Placer or Drake to do work for it. But the fact is that SRS placed Mr Murphy in a situation where his safety depended on decisions made by both other companies, and in general the effect of the non-delegable duty doctrine seems clearly to impose liability in those circumstances. 3.137 With respect, the Court of Appeal arguably veer off course in Placer at the point where Pullin JA says (at [19]): ‘It [nondelegable duty] remains a duty to exercise reasonable care.’ This is misleading, if it is forgotten that the duty is best described as a duty ‘to see that reasonable care is taken’ by whomever has been

entrusted with the supervision of the employee, rather than merely a duty to actually take such care. This led to much discussion on what SRS had done to ensure its workers were safe. Yet all that was irrelevant because SRS should, under the classic doctrine, be held responsible for what Drake or Placer did, not merely for what they themselves had done. There are issues in the case about whether there is liability for a ‘casual act of negligence’. However, (as we will see in Chapter 4) the only way to make sense of this exception is to regard it as applying to carelessness which is unrelated to the task which was entrusted to the other party — and here driving a crane carefully was clearly part of the task. With the greatest of respect, Pullin JA seems in error when he attempts to distinguish Kondis (at [65]– [67]) by saying that liability was found there because of the ‘employer’s breach of its personal duty of care to provide a safe system of work’. This is true, but seems to be misinterpreted. The High Court clearly meant that the ‘personal’ duty was breached through the carelessness of the contractor. In brief, Placer seems a very unsatisfactory decision and may need to be corrected in the future. 3.138 The area of ‘non-delegable duties’ received lengthy consideration in Lepore. The key thing to keep in mind when a ‘non-delegable duty’ is being considered is that the issue is whether a principal is liable for a wrongful act committed by a contractor. But this means that it must still be possible to show that somebody has committed [page 183] a wrongful act; it is not a form of ‘absolute’ liability. Kirby J sums this up well in his comments in Lepore (at [290]–[291]): The purpose of developing the doctrine of non-delegable duties seems to have been to ensure that, in cases in which courts have considered that liability ‘should’, or

‘ought’ to,1 be imposed, the principles of vicarious liability, specifically the restriction on an employer’s vicarious liability for the conduct of an independent contractor, should not act as a barrier to such liability. Liability on the basis of nondelegable duties has therefore been described as a ‘disguised form of vicarious liability’.2 However, the non-delegable nature of the duty was not designed, as I read the cases, to expand the content of the duty imposed upon the superior party to the relationship, so as to enlarge that duty into one of strict liability or insurance. It was simply a device to bring home liability in instances that would otherwise have fallen outside the recognised categories of vicarious liability. 1. 2.

Cf Barak, ‘Mixed and Vicarious Liability — A Suggested Distinction’ (1966) 29 Modern Law Review 160 at 160–1. Fleming, The Law of Torts, 9th ed (1998) at 434.

The majority of the High Court found it necessary to consider in Lepore the question whether there can be a breach of a ‘nondelegable duty’ committed by an intentional wrongful act (it will be recalled that the issue was the alleged sexual assault of a student by a teacher). Kirby J declined to rule on this issue, holding that as the teacher was acknowledged to be an employee the question of a ‘non-delegable duty’ did not arise: see [295]. With respect, this seems very persuasive.132 Nevertheless, the decision of the other members of the court must now be regarded as authoritative. 3.139 In the end the decision of those members of the court who decided this issue seems to be that there can be no breach of a non-delegable duty by an intentional wrongful act: see Gleeson CJ (at [38]); Gummow and Hayne JJ (at [265]); Callinan J (at [339]) agreeing with Gleeson CJ. But even this conclusion is muddied somewhat by the apparent assumption by some members of the court that a non-delegable duty is a so-called ‘strict’ duty. Still, it seems safest at the moment to take the view that a non-delegable duty of care will not be breached by an intentional (as opposed to a wrongful) act. There has even been some support for this view in the United Kingdom in the recent decision of the English Court of Appeal in NA v Nottinghamshire County Council [2015] EWCA Civ

1139 (see Burnett LJ (at [35]), although the other members of the court did not explicitly agree.) [page 184] The result of this state of authority appears to be fairly unsatisfactory. It would seem to lead to the conclusion that if an employee is injured by the deliberate act of a fellow employee (say, deciding to ram him with a forklift as a result of some heated dispute on the factory floor), then the employer would be liable in damages; but if precisely the same act was carried out by a contracted forklift driver who was engaged temporarily, there would be no such liability. If and when these sorts of cases arise, the courts may be required to further clarify the operation of these liability rules.133

Principal owes some duties of care to contractor 3.140 On the other side of the equation, the principal is not completely free from duties owed to the contractor, to provide for the safety of a contractor or a contractor’s employees. This was established clearly in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. In that case it was determined (as outlined previously, see 3.13) that Stevens and Gray were both contractors rather than employees. Did this mean that there could be no liability for Stevens’ injury attaching to the principal, Brodribb? Not at all. As we will see when the area of negligence is discussed in Chapter 4, for a duty of care to be established there must be a relationship of some sort between the parties (called in some of the older cases ‘proximity’). This relationship is established where a contractor is engaged in circumstances where the principal has to set down a system of work. In Stevens, Mason J said (at 31):

If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work … he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system.

However, unlike the duty owed to an employee, this is in most cases not a ‘non-delegable’ duty. To breach the duty owed to an independent contractor, the principal must be personally negligent. In the Brodribb case, the court found (by majority, Deane J dissenting) that Brodribb had not breached its duty; the system it had set up had its risks but it was commonly used in this type of work. Brodribb was not liable for the negligence of Gray. We will explore in more detail the question of when a duty of care is owed to contractors in Chapter 4. [page 185]

Termination of contract and remedies 3.141 Finally, in our review of employment and contract law, how does the contract of employment come to an end? In this area we will briefly review the general principles of termination of contracts, and also specifically refer to issues arising in the special case of the contract of employment.

Termination of contract under general law 3.142 A contract, as we have seen, is an enforceable agreement between two parties. It begins when offer is met by acceptance. When does it end, so that the parties are no longer in a relationship regulated by the contract? There are, broadly, five ways in which a contract can be ‘discharged’:

1. 2. 3. 4. 5.

by performance; by agreement; through frustration; through breach; and by operation of law.134

We will mention each of these briefly; however, a close consideration of the complications of each is beyond the scope of this book. By performance 3.143 This simply means that if the parties have each carried out all the obligations they had under the initial contract (that is, have performed their contractual duties), then there is no contract any more, and they are ‘strangers’ once again. There are various legal rules about how exact or precise the performance must be in different situations. In relation to a contract of employment, complications in this area arose when a person was hired for a specific period of time and could not serve out that time. To take an extreme example, in Cutter v Powell (1795) 6 Term Rep 320; 101 ER 573, a sailor was hired for a trip from Jamaica to Liverpool. About three-quarters of the way home he died. His widow could not recover any wages from the ship-owner, because he had not completely performed his obligations. Nowadays federal and state awards and other legislative instruments usually specifically provide that wages accrue either daily or hourly, so that even if the contract involves payment fortnightly, a worker who finishes in the middle of a fortnight can recover for the portion of the time actually worked. This is a situation where the award (as given effect by statute) would override the specific provisions of the contract. In addition to this, in New South Wales the Building and

Construction Industry Security of Payment Act 1999 (NSW) creates a statutory right for contractors in the construction industry to be paid at regular intervals during the completion of a project. [page 186] By agreement 3.144 A contract may come to an end if the parties agree. They may have agreed beforehand that it will come to an end on the happening of a certain event. In the case of the contract of employment an implied term is usually that either party may terminate the contract by giving ‘reasonable notice’, or else by the employer paying the equivalent in wages. However, there are provisions relating to ‘unfair dismissal’ (noted below at 3.152) which have an impact on termination of employment. Through frustration 3.145 A contract may also be at an end when it is ‘frustrated’. Frustration involves the happening of some event which neither party could have foreseen but which has ‘radically changed’ the circumstances in which the contract was entered into. The contract is either impossible to perform (such as where a concert hall where a singer was to perform burned down)135 or has become something so radically different that it is no longer what was agreed to. It is not very common these days for an employment contract to be completely frustrated. Even the burning down of a factory might not be enough, if the employer has other areas of business where the workers could be employed. Where a worker is sick for a long period of time, this may give the employer the right to give notice, but will usually not amount to automatic frustration. Through breach

3.146 A contract may also be discharged due to breach of the contract by one party. Not every breach will put an end to the contract, though. The courts distinguish between three types of ‘terms’ of contracts: conditions, which are major terms without which the parties would not have entered the contract; warranties, which are less important; and terms that are called ‘intermediate’ or ‘innominate’.136 Without going into details, a breach of a mere warranty simply entitles the innocent party to an award of damages; but a breach of a condition, or a serious breach of an innominate term, entitles the innocent party to get out of the contract altogether — to ‘repudiate’ it. In general, however, even a serious breach of this sort will not terminate the contract until the innocent party chooses to accept it as grounds for repudiation and does in fact repudiate the contract. 3.147 In the case of a contract of employment some extra complications arise because of the special character of the obligations of service under the contract. The issue arises in the case of wrongful dismissal of an employee. The courts take the view that the contract of employment continues on foot until the employee accepts the dismissal as terminating the contract. But they have said that even though the contract may [page 187] still be technically in existence, the relationship of employer and employee may be terminated.137 It is also well established that, since the price for wages is work, an employee who is wrongfully dismissed cannot just remain idle and ‘clock up’ wages; the only remedy the employee will usually have is an order for damages. In Byrne & Frew v Australian Airlines (1995) 185 CLR 410, Brennan CJ, Dawson and Toohey JJ said (at 427–8):

It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract … Of course, even if an employee who is wrongfully dismissed chooses to keep the contract of employment on foot, he or she cannot claim remuneration in respect of any period after the wrongful dismissal because the right to receive remuneration for services is dependent upon the services having been rendered … Moreover, a court will not, save in exceptional circumstances, order specific performance of a contract of personal service. The possible continuation of the contract of employment after a wrongful dismissal will, therefore, ordinarily be of no real significance as it will for all practical purposes be at an end.

By operation of law 3.148 In some rare situations a contract will be terminated by operation of a rule of common law or a statute. One example might be where a new piece of legislation makes it illegal to do what the contract envisaged. But most of the more common situations are dealt with by specific provisions. Even an order for the winding up of a company will not always automatically discharge all its employees: Re Matthew Bros Ltd [1962] VR 262.

Statutory regulation of termination of employment 3.149 Due to the complexity of this area, we can only briefly outline the impact of statutory provisions on termination of employment. For a number of years it has been a feature of industrial awards that they contain a clause prohibiting dismissal that is ‘harsh, unjust or unreasonable’. This modified the common law rule, which was that the employer could dismiss for any reason on giving adequate notice or money in lieu of notice. These rules were further modified by the provisions of the Workplace Relations Act 1996 (Cth) (as it was previously titled) Div 3 of Pt VIA.138 [page 188]

For an example of the interaction between the statutory provisions concerning dismissal, and health and safety issues, see Kennelly v Incitec Ltd [1998] FCA 1470. Mr Kennelly was a supervisor on a production line who was found to have wrongly removed a ‘danger tag’ that was designed to warn that maintenance was being carried out on some equipment. The equipment was started up, but as no one was working in the area at the time there were no injuries. Nevertheless, Mr Kennelly was summarily dismissed. On application to the Federal Court for damages for unfair dismissal, the court found that the employer had established that Mr Kennelly was guilty of ‘serious misconduct’ within s 170CP(1)(c) of the Act. Regulation 30CA of the Workplace Relations Regulations 1989 (Cth) previously provided: (1) For paragraph 170CM (1)(c) of the Act, serious misconduct includes: (a) wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; and (b) conduct that causes imminent, and serious, risk to: (i) the health, or safety, of a person …

The court held that a ‘risk’ had been created, even though no injury ensued, and that as a result the dismissal was valid. Under s 387(a) of the current Fair Work Act 2009 (Cth) a worker’s dismissal may be found not to be ‘harsh, unjust or unreasonable’ if based on the employee’s ‘capacity or conduct (including its effect on the safety and welfare of other employees)’. For example, in Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35 the Full Court of the Federal Court upheld the dismissal of a ferry master after he had reported for work having recently taken cannabis, contrary to a company safety policy. ______________________________

Answers to Stop and Think questions

3.1 One factor that might lead the court to consider that a trapeze artist was not subject to ‘control’ might be that the work obviously requires a particular skill, and the employer cannot stand by and give detailed directions about how to swing on the bar. 3.2 (i) The court in Stevens v Brodribb needed to determine whether or not the workers were ‘employees’ for two reasons. First, if Mr Stevens, the injured worker, was an employee, then the company Brodribb would have owed him a clear duty to take reasonable care for his safety. This will be discussed further in Chapter 4. Second, if Mr Gray, the bulldozer driver, was an employee, then the company could be held ‘vicariously liable’ for Mr Gray’s carelessness. (ii) This question is one only you can answer: what do you think would be important to the court in answering the question? But as you read the text you will notice that the court seemed to regard that the degree of freedom accorded to the two workers in deciding whether or not to work was important, as was the fact that Mr Gray at least was able to ‘delegate’ his work to someone else on occasions. [page 189]

Further Reading On contract law in general J W Carter and D J Harland, Cases and Materials on Contract Law in Australia, 6th ed, LexisNexis Butterworths, Sydney, 2012. S Graw, An Introduction to the Law of Contract, 6th ed, Lawbook Co, Pyrmont, 2008: an excellent brief outline of contract law for non-lawyers.

S Hill, ‘Flogging a Dead Horse — The Postal Acceptance Rule and Email’ (2001) 17 Journal of Contract Law 151– 62. G C Lindsay, Contract, LBC Nutshell, 4th ed, LBC Information Services, Pyrmont, 2000. P Radan and J Gooley, Principles of Australian Contract Law, 2nd ed, LexisNexis Butterworths, Sydney, 2010. L Willmott, S Christensen and D Butler, Contract Law, 2nd ed, Oxford University Press, South Melbourne, 2005. On contract of employment B Brooks, Contract of Employment: Principles of Australian Employment Law, 4th ed, CCH, North Ryde, 1992. L Clarke, ‘Mutuality of Obligations and the Contract of Employment: Carmichael and Anor v National Power plc’ (2000) 63 Modern L Rev 757–63. M Crawley, ‘Labour Hire and the Employment Relationship’ (2000) 13 Aust Jnl of Labour Law 291–6. B Creighton and A Stewart, Labour Law, 5th ed, Federation Press, Sydney, 2010, esp Chs 7 and 8. G Golding, ‘Terms Implied by Law into Employment Contracts: Are They Necessary?’ (2015) 28 Australian Journal of Labour Law 113. R Guthrie, ‘Tourists Overstaying Their Welcome: When the Visa Runs Out and the Workers Stay On’ (2004) 6 Legal Issues In Business 4. R Johnstone and T Wilson, ‘Take Me to Your Employer: The Organisational Reach of Occupational Health and Safety Regulation’ (2006) 19 Australian Journal of Labour Law 59–80. R McCallum, McCallum’s Top Workplace Relations Cases, CCH, North Ryde, 2008. R Owens and J Riley, The Law of Work, Oxford University

Press, Oxford, 2007. M J Pittard and R B Naughton, Australian Labour Law: Cases & Materials, 5th ed, LexisNexis Butterworths, Australia 2010. R Price, Employment Law in Principle, 3rd ed, Lawbook Co, Pyrmont, 2009. P Punch et al, Australian Industrial Law, CCH, North Ryde, 1995. J Riley, Employee Protection at Common Law, Federation Press, Sydney, 2005. C Sappideen, P O’Grady, J Riley and G Warburton, Macken’s Law of Employment, 7th ed, Lawbook Co, Pyrmont, 2011. A Stewart, ‘Redefining Employment? Meeting the Challenge of Contract and Agency Labour’ (2002) 15 Australian Journal of Labour Law 235–76. A Stewart, Stewart’s Guide to Employment Law, 5th ed, Federation Press, Sydney, 2015. [page 190] A Stewart (principal author), Understanding Independent Contractors, Piper Alderman, CCH, North Ryde, 2007. N Van der Waarden, Employment Law: An Outline, 2nd ed, LexisNexis Butterworths, Chatswood, 2010. P W Young, ‘Quantum Meruit — Illegal Contract’ (2007) 81 Aust Law Jnl 308–9. On vicarious liability and non-delegable duty D

Brodie, ‘Enterprise Liability: Justifying Vicarious Liability’ (2007) 27 Oxford Jnl of Legal Studies 493–508.

J Catanzariti, ‘Non-delegable Duty, Vicarious Liability and the Course of Employment’ (2003) 41(3) Law Society Journal 36–7. C Crawford, ‘Bouncers and Vicarious Liability’ (2006) Nov Proctor 23–4. S Deakin, ‘“Enterprise-Risk”: The Juridical Nature of the Firm Revisited’ (2003) 32 Industrial Law Journal 97–113. N Foster, ‘Convergence and Divergence: The Law of Nondelegable Duties in Australia and the United Kingdom’ in A Robertson and M Tilbury, Divergences in Private Law, Hart, Oxford, 2016. N Foster, ‘Vicarious Liability for Independent Contractors Revisited: Sweeney v Boylan Nominees Pty Ltd’ (2006) 14 Torts Law Journal 219–23. G H L Fridman, ‘“The Course of Employment”: Policy or Principle?’ (2002) 6 Newcastle Law Review 61–75. P Giliker, ‘Making the Right Connection: Vicarious Liability and Institutional Responsibility’ (2009) 17 Torts Law Journal 35–54. B Hall and S Cooke, ‘Employers Not Liable for Intentional Wrongs: The Limits of Non-delegable Duties’ (2003) 9(1) Employment Law Bulletin 3–5. J W Neyers, ‘A Theory of Vicarious Liability’ (2005) 43 Alberta Law Review 1–41. J Neyers, ‘Joint Vicarious Liability in the Supreme Court of Canada’ (2006) 122 Law Quarterly Review 195–201. T Paine, ‘Employer’s Vicarious Liability’ (2003) 60 Plaintiff 23–6. R Stevens, ‘A Servant of Two Masters’ (2006) 122 Law Quarterly Review 201–5. R Stevens, ‘Vicarious Liability or Vicarious Action?’ (2007) 123 LQR 30–4.

J Teague, ‘Vicarious Liability: A Comparative Review of the Common Law after Ffrench’ (2008) 16 Tort Law Review 39–47. P Telford, ‘Non-delegable Duties and Vicarious Responsibility’ (2003) 18(4) Australian Insurance Law Bulletin 41–5. P Vines, ‘Case Notes: NSW v Lepore; Samin v Qld; Rich v Qld’ [2003] Melbourne University Law Review 22 (available on AUSTLII). J Wangmann, ‘Liability for Institutional Child Sexual Assault: Where Does Lepore Leave Australia?’ (2004) 28 Melbourne University Law Review 169–202. S Watson and C Noonan, ‘The Widening Gyre of Vicarious Liability’ (2009) 17(2) Torts Law Journal 144–61. [page 191] R Weekes, ‘Vicarious Liability for Violent Employees’ (2004) 63 Cambridge Law Journal 53–64. S White and G Orr, ‘Case Note: Precarious Liability: The High Court in Lepore, Samin and Rich on School Responsibility for Assaults by Teachers’ (2003) 11 Torts Law Journal 1–47. Po Jen Yap, ‘Enlisting Close Connections: A Matter of Course for Vicarious Liability?’ (2008) 28 Legal Studies 179–214.

1.

‘Vicarious’ liability is liability that attaches to a person who is held responsible for the actions of someone else who has actually committed the wrong. See below at 3.110ff for detailed discussion.

2.

Note that in s 12 of that Act we are told that the words ‘employer’ and ‘employee’ may be differently defined in other Parts of the Act. But the ‘base’ meaning is the

3.

4. 5.

6. 7. 8.

common law meaning that we will be exploring in this chapter. In Hollis v Vabu Pty Ltd (2001) 181 ALR 263, McHugh J notes that the question whether or not someone is an employee has implications for ‘industrial relations, for workers’ compensation law, for working conditions, for the obligations of employers to make superannuation contributions and group tax deductions and for the payment of annual and long service leave and taxes such as payroll tax’: at [69], footnotes omitted. See Chapter 2 at 2.50. See, for example, Interpretation Act 1987 (NSW) s 21(1): ‘“person” includes an individual, a corporation and a body corporate or politic.’ This was noted in Chapter 2 at 2.73. See the article by J Neyers (2006) in the Further Reading list at the end of this chapter for a brief discussion and critique. See the article by R Stevens (2006) in the Further Reading list at the end of this chapter. For further details, see the article by Cullen in the Further Reading list at the end of this chapter.

9. 10.

For the Biblical reference, see Matthew 6:24, Luke 16:13. See also the Occupational Safety and Health Act 1984 (WA) s 23D. A number of similar provisions are discussed in R Johnstone and T Wilson, ‘Take Me to Your Employer: The Organisational Reach of Occupational Health and Safety Regulation’ (2006) 19 Australian Journal of Labour Law 59–80, esp at 68–70.

11.

For a comprehensive discussion of the differences between employees and independent contractors, see A Stewart, Stewart’s Guide to Employment Law, 5th ed, Federation Press, Sydney, 2015, Ch 3. Montreal v Montreal Locomotive Works [1947] 1 DLR 161 at 169.

12. 13.

14.

15.

16.

For an example see St John’s College School, Cambridge v Secretary of State for Social Security [2001] ELR 103 where it was held that part-time visiting music teachers were sufficiently part of a school’s ‘organisation’ to be regarded for social security purposes as being ‘employed’ by the school. This decision was followed in Cecily Rhind v Westside Car Carrying Pty Ltd (SC(NSW), Hidden J, 27 March 1997, unreported), where a truck driver required to wear company uniform and to work whenever the company required was found to be a contractor. As we have seen already (see 3.2), and will explore in more detail below (see 3.10 ff), the common law regards an employer as ‘vicariously liable’ for wrongs committed by an employee in the course of their employment, whether or not the employer had any personal involvement in the commission of the wrong. As we will see later in this chapter (see 3.133), the law generally is that a principal is not vicariously liable for wrongs committed by an independent contractor. This well-established principle was in fact challenged by McHugh J in his dissent in Hollis, but the majority of the High Court held that since on the facts (as we will see) the courier was an employee, there was no need to make a more sweeping change to the law of vicarious liability.

17.

The two judges who dissented did so on diametrically opposed grounds. McHugh J argued that the court should recognise a third category of employment relationship, that of ‘agency’, and hold Vabu liable for the actions of the courier on this basis. Callinan J, however, argued that Mr Hollis should be bound by his counsel’s concession that he was a contractor, not an employee, and hence should fail on this basis.

18.

For further support for the view that it is the ‘totality of the circumstances’ which the court will consider, not the labels chosen by the parties, see United Construction Pty Ltd v Birighitti [2003] WASCA 24, esp at [13] and [77]. The theme is also developed below in relation to labour hire firms. In dissent McHugh J did not think that the couriers should be viewed as employees, particularly in circumstances where they provided their own equipment. Instead, his Honour argued (as he had argued, although also in dissent, in Scott v Davis (2000) 74 ALJR 1410) for an extension of vicarious liability to ‘agents’, and for a third classification to be added to the traditional bipartite employee–contractor dichotomy. While his Honour’s views on this issue are well worth considering, the majority did not share them.

19.

20.

21.

Having said that, of course each case will still depend on its own facts. See Daykin v Neba International Couriers [2002] WASCA 213 where a car courier with a greater degree of control than in Vabu was found to be a contractor, not an employee. In comment on the James case, M Wynn and P Leighton, ‘Agency Workers, Employment Rights and the Ebb and Flow of Freedom of Contract’ (2009) 72 Modern Law Review 91–115 suggest that this case took an unduly restrictive view of the circumstances when a contract of employment could be implied, requiring that it be only in cases of ‘necessity’. But in the Victorian Homecare decision, discussed in the text following, the Victorian Court of Appeal (Forrest AJA: at [146]) took the view that there was no basic change in the underlying principles between Dacas and James.

22. 23.

See the Further Reading list at the end of this chapter. For a similar case, which also found that a temporary worker on placement remained the employee of the labour hire firm, see Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194.

24.

In general, as noted above, under the common law as it currently stands in Australia a person can only have one employer at a time in relation to any one work activity. As will be discussed in detail in Chapter 5, Pt 5 of the Return to Work Act 2014 (SA), which commenced operation on 1 July 2015, restores limited common law recovery for workers.

25.

26.

27. 28.

See the judgment (at [110] ff) for a summary of reasons as to why there was no contract with the mines. These reasons were approved and adopted by Conti J: at [184]. There is also a helpful table in A Stewart, Stewart’s Guide to Employment Law, 5th ed, Federation Press, 2015, p 54, summarising these issues. Special leave to appeal this decision was denied by the High Court: ACE Insurance Ltd v Trifunovski [2013] HCATrans 190.

29.

See also [61]–[62] of Tattsbet Ltd v Morrow [2015] FCAFC 62 in regards to working within one’s own business.

30.

Perhaps the only hint that can be gleaned as to whether the High Court agreed with the emphasis on the ‘business’ test put forward by the Full Court in Quest is that on appeal (at [6]) it is noted that the Full Court had ‘reached a number of uncontroversial conclusions of law’, with a footnote citing a number of specific paragraphs of the Full Court decision; but the relevant comments (at [177]–[184]) of the Full Court decision are not included in the list of ‘uncontroversial’ conclusions! His Honour was responding to a submission from Transtate, the former employer, that Mr Rauk had continued to be an employee. The claim was obviously made to take advantage of the fact that the Workers Compensation Act 1987 (NSW) would have placed tight limits on the compensation that Mr Rauk could seek if he was an employee. (We will see more about these limits in Chapter 5.) For a similar decision in related circumstances see the judgment of Underwood J in Thompson v Cooee Point Abattoirs Pty Ltd [2002] TASSC 41.

31.

32. 33.

Although not always: see note 31 above. As a matter of interest it seems this (rather than the spelling adopted in the previous judgment) is the preferred spelling of the company’s name.

34.

However, note the decision in Damevski v Giudice [2003] FCAFC 252 (see 3.22), where despite the fact that Mr Damevski had purported to terminate his contract with Eudoxos, the court held that there was an implied ‘resurrection’ of the contract of employment created by the course of conduct of the parties. It is possible that a similar analysis could have been applied to the relationship between Transtate and Mr Rauk. See Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1.

35. 36.

37. 38.

39. 40.

41. 42.

One such case was Garrard v A E Southey & Co and Standard Telephones and Cables Ltd [1952] 2 QB 174, the case mentioned by Lord Denning MR at the end of the quote above, and a case referred to by Powell JA in the Rauk appeal. See the later discussion of the duty of care in Rauk in Chapter 4 at 4.18, and also the comments quoted there of James J in White v Malco [1999] NSWSC 1055. Perhaps metaphorically proving Henry Higgins wrong in his dictum in ‘My Fair Lady’ that ‘hurricanes hardly ever happen’ in counties beginning with ‘H’. Steel J’s judgment was overturned in one respect on appeal in Shell UK Ltd v Total UK Ltd [2010] EWCA Civ 180, but not in relation to his decision on the employment and vicarious liability issues discussed here. For further discussion of the case, see N Foster, ‘Case Note: Civil Liability Arising from the Buncefield Explosion’ (2010) 12 Environmental Law Review 57–70. Indeed, Ashley J in Deutz (at [114]) commented that there seems to have been no case decided in the twentieth century in which the burden in this first class of case had been satisfied! Twenty-first century cases seem to have continued this pattern. Hence distinguishing this case from Hollis v Vabu, where the cost of the bicycles was said not to be significant; see the extensive discussion in Langford: at [18]–[44]. See the discussion: at [56]–[64]. Another factor in this case, particularly given that

43.

44. 45. 46.

47.

48. 49.

50. 51.

52. 53. 54.

the employer was effectively an arm of the Commonwealth Government, was that the Commonwealth Tax Office had required him to make tax payments under the PPS arrangements used for contractors, rather than through the PAYE scheme used for employees: see [54]. See Andonovski v Park-Tec Engineering Pty Ltd and Barbeques Galore Pty Ltd; Andonovski v East Realisations Pty Ltd (No 6) [2015] NSWSC 341 at [54]–[97]. (It is noted that a judge had extended the limitation period at one point, presumably to allow the action against Park-Tec to proceed: at [6].) See the Further Reading list at the end of this chapter. J W Carter, Outline of Contract Law in Australia, 2nd ed, Butterworths, Sydney, 1994, at [104]. This list of elements is not authoritative; it is simply my attempt to summarise the effect of court decisions in the area (although it is quite close to the list offered by S Graw, An Introduction to the Law of Contract, 6th ed, Lawbook Co, Pyrmont, 2008, pp 36–7). All lists will include offer and acceptance (sometimes put together as ‘agreement’), consideration and intention to create legal relations. Some regard capacity and illegality as separate invalidating factors. Different textbook writers offer different lists; the main value of this one is that you can regard it as definitive for the purposes of this book. In regard to emails see J Gardiner, ‘The Postal Rule in Contract Law and the Electronic Marvels’ (1994) 2(2) Current Commercial Law 47–51, and S Hill, ‘Flogging a Dead Horse — The Postal Acceptance Rule and Email’ (2001) 17 Journal of Contract Law 151–62. Henthorn v Fraser [1892] 2 Ch 27 at 33 per Herschell LJ. Nunin Holdings Pty Ltd v Tullamarine Estates Pty Ltd [1994] 1 VR 74 at 80 per Hedigan J. For more recent discussion of the rule, see Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos [2012] NSWCA 107 at [133] ff, and Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 (8 August 2014) at [137]–[156]. See the Further Reading list at the end of this chapter. See also the fairly similar provisions replicating the above in other jurisdictions; for example, the Electronic Transactions Act 1999 (Cth) s 14A. For further comment see S Christensen, ‘Formation of Contracts by Email — Is it Just the Same as the Post?’ [2001] Qld Uni of Tech Law & Justice Jnl 3. There is a good overview of issues that may arise in electronic contract formation in Graw, note 46 above, pp 477–88. See Conveyancing Act 1919 (NSW) s 38(1). J W Carter and D J Harland, Cases and Materials on Contract Law in Australia, 4th ed, LexisNexis Butterworths, Sydney, 2004, at [307]. For other cases where a claim for compensation failed because the person concerned was not being paid, see Teen Ranch v Brown (see 3.52) and Birkett v Tubbo Estate Co Pty Ltd (1997) 14 NSWCCR 369 (student on ‘work experience’ at farm). In Yi v The Service Arena Pty Ltd [2001] NSWCA 400, an unemployed person undertaking ‘work experience’ in a factory when injured while lifting a heavy load, was held to be unable to recover damages from the ‘training provider’ which had found the placement for him. (The business operating the factory would have been

liable but had become insolvent.) 55. 56.

See P Punch et al, Australian Industrial Law, CCH, North Ryde, 1995, p 104. It should be noted that this was a very unusual case. The particular church consisted of a ‘community’ where all members pooled their property, and the teachers were all a part of this community. In addition, the issue only arose in this case because the school was suing for defamation, and in order to make out their case they had to show that they were not a corporation who ‘employed’ more than 10 persons (as such corporations could not sue for defamation under the then applicable legislation, Defamation Act 1974 (NSW) s 8A). As it turned out the trial judge said that the word ‘employs’ in the legislation extended beyond the common law notion of a ‘contract of employment’, and since it was clear that the school ‘engaged’ more than 10 teachers its defamation claim failed. But the judge also ruled on the issue of whether the teachers were ‘employees’ in case the decision was appealed from. Note that some doubt may be cast on the judge’s view of the word ‘employs’ by comments of the Court of Appeal in the later decision in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [103]–[104], although no definite view was taken.

57.

On further hearing in the South Australian Full Court, Greek Orthodox Community of SA Inc v Ermogenous [2002] SASC 384, the court effectively upheld the decision of the industrial magistrate at first instance that the contract was one of employment, due to the high degree of control over the archbishop’s activities exercised by the supervising body. They did specifically note, however, that the facts were unusual and that the decision in this case should not automatically be seen as applicable to other clergy. His Honour also referred to an article on the issue, N Courmadias, ‘Intention to Create Legal Relations: The End of Presumptions?’ (2006) 34 ABLR 175.

58. 59.

60. 61. 62.

See also the decision of the Full Court of the Supreme Court of South Australia in Harris v Burrell & Family Pty Ltd (ACN 104 734 929) [2010] SASCFC 12 at [19] also suggesting that applying presumptions in contractual cases may not be helpful. For further comment on the cases, see the articles by Guthrie and Young in the Further Reading list at the end of this chapter. See Barton v Armstrong [1973] 2 NSWLR 598; [1976] AC 104; Graw, note 46 above, at [13.4.2]. It was said in the past that ‘duress of goods’ (that is, a threat to property as opposed to the person) was not sufficient to avoid a contract: see Skeate v Beale (1841) 113 ER 688 for the traditional view. But some English (The Siboen and The Sibotre [1976] 1 Lloyd’s Rep 293 at 335) and New South Wales (Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298) cases suggest that in some cases duress of goods may be a possible ground for invalidating a contract.

63. 64.

Competition and Consumer Act 2010 (Cth) Sch 2. Cf Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433; Graw, note 46 above, at [13.11.2].

65. 66.

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 per Mason J. See A Stewart, Stewart’s Guide to Employment Law, 5th ed, Federation Press, Sydney, 2015, at [2.20] for definition of this term, which will cover most employees in

Australia. 67.

68. 69.

70. 71.

Stewart, note 66 above, at [6.12]. While Stewart’s comment relates specifically to s 106 of the Industrial Relations Act 1996 (NSW), any application of the Contracts Review Act to contracts of employment has also been removed: see now Fair Work Regulations 2009 (Cth) reg 1.14(c). See discussion of this and other cases in Stewart, note 66 above, at 91–3. On the issue of implying, not just terms of an employment contract, but an employment contract as a whole where none is written down, note the United Kingdom cases mentioned above (see 3.23), and the recent Victorian decision in Homecare: see 3.23. For a detailed analysis of this area, in light of the High Court’s decision in Barker, see the article by Golding in the Further Reading list at the end of this chapter.

72.

We will define and discuss ‘tort law’ in Chapter 4. For the moment the key feature of obligations under tort law is that they arise independently of any agreement between the parties. See McHugh JA at 450.

73. 74.

Gleeson CJ, McHugh, Gummow and Hayne JJ (at [70]); Callinan J dissenting. See the definition of ‘wrong’, para (b), in s 8 of the amended Act.

75. 76.

See note 63 above. See Fair Work Act 2009 (Cth) Pt 4, esp s 543 which allows an application to be made to enforce an entitlement (and also see s 545(3)).

77.

In Collier v Sunday Referee Publishing Co [1940] 2 KB 647 at 650, Asquith J said: ‘Provided I pay my cook her wages regularly she cannot complain if I choose to take any or all of my meals out.’ For an example, see the United Kingdom case of Waters v Commissioner of Police for the Metropolis [2000] UKHL 50 where the House of Lords upheld a claim made by a female police officer that negligent conduct by the Commissioner of Police had allowed a course of harassment by fellow police officers to continue over a period of time, which led to her suffering psychiatric injury. See Lord Slynn (at [10]): ‘If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee.’

78.

79. 80.

See Punch, Australian Industrial Law, note 55 above, at [703], Case 3. Tomlinson JR: ‘The applicant submitted that from 1975 onwards the respondent was bound to comply with the Occupational Health and Safety Laws in New South Wales and to enforce the wearing of safety glasses. At first glance, the dismissal of a worker for refusing to comply with mandatory safety regulations may seem to be a valid reason for termination. Indeed, it was submitted by the respondent … that the respondent terminated the employment to avoid an illegal act. However at the time the regulations were brought into being the applicant tried to comply with the obligations but his severe handicap prevented him from doing so. The evidence shows the respondent for a long while tolerated the applicant working without safety glasses and it could be argued the respondent tolerated an “illegal” situation

for a long time.’ 81. 82.

See B Brooks, Contract of Employment, 4th ed, CCH, North Ryde, 1992, p 88. See the Work Health and Safety Act 2011 (NSW) s 84.

83.

He recovered damages on the basis of the doctrine of vicarious liability, considered below: see 3.108 ff. Note that in Police Service of New South Wales v Honeysett [2001] NSWCA 452 the court held that a police officer should be regarded as an ‘employee’, at least for the purposes of this Act (the employment status of police officers is governed by a number of old common law rules and there was some doubt about this). The judgment of Priestley JA in that case also contains a helpful discussion of the history and aims of the legislation: at [14]–[17].

84.

85.

86.

87.

88.

For an example of disqualifying conduct see Boral Resources (Qld) Pty Ltd v Pyke [1992] 2 Qd R 25 (employee was drunk behind wheel of prime mover, knew that he faced instant dismissal if he drove while under the influence). See also New South Wales v Eade [2006] NSWSC 84 at [43] (Eade) where Hoeben J adopted the following definition of ‘serious and wilful misconduct’: ‘As it seems to me, in order to establish serious and wilful misconduct, a person accused of it must be shown to have knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk.’ In Eade the state was held vicariously liable for acts of false imprisonment committed by a corrupt police officer, but was entitled to sue the officer for damages because he was found to have been guilty of serious and wilful misconduct under s 5(a). In JK v State of New South Wales [2014] NSWSC 1084, JK settled with the State of New South Wales over damages in relation to sexual abuse by a teacher, QR, and the State of New South Wales claimed an indemnity from QR. QR could not rely on s 3 as an immunity because under s 5(b), his actions ‘did not occur in the course of, and did not arise out of, the employment of the employee’: see [30]. Arguably, of course, they were also ‘serious and wilful misconduct’. See, for an example of this sort of action, Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194; and for comments on the application of the Insurance Contracts Act 1984 (Cth) to the situation of a contractor see [50]–[59] of that judgment. For some discussion of the operation of s 9(1)(e)(i), see the High Court decision in Moltoni Corporation Pty Ltd v QBE Insurance Ltd [2001] HCA 73, esp at [25]–[30]. But that decision (which held that s 9 did not preclude the application of the Insurance Contracts Act to a Western Australia common law workplace injury action) dealt with state legislation which required insurance for statutory liability alone, and not common law insurance. There may still be some doubt as to the operation of s 9 in relation to ‘workers compensation’ legislation which requires compulsory insurance for common law liability. For the apparent exclusion of ‘workers compensation’ insurance cover in relation to common law actions, see Butler v Dunn Monumental Masons Pty Ltd (Supreme Court of Tasmania, Underwood J, 6 August 1996, unreported). See discussion of this issue by A Brooks, Occupational Health and Safety Law in Australia, 4th ed, CCH, North Ryde, pp 159–61. See also H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 6th ed, LexisNexis

Butterworths, Sydney, 2009, at [18.1.11]. 89.

90.

91.

92.

93.

94.

There is a brief discussion of the issue by Callinan J in Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 at [102] n 116, although it should be noted that his Honour was in dissent in this decision (the other members of the High Court did not discuss the continuing authority or otherwise of Lister). There is no indication from the report as to where the insurance company expected to get the money from, in a judgment against a teenager. But it may be that the boy was himself covered by someone’s insurance policy, so that the company covering the house was hoping to recover the money from another insurance company. For detailed commentary on various aspects of the duty of ‘good faith’, see C Sappideen et al, Macken’s Law of Employment, 7th ed, Lawbook Co, Pyrmont, 2011, at [5.880]–[5.910]. While one aspect of his Honour’s judgment in this case (the finding that exemplary damages could be awarded for breach of the equitable fiduciary obligation) was later overturned by the Court of Appeal in Harris v Digital Pulse Pty Ltd [2003] NSWCA 10, this aspect of the judgment dealing with the contractual duty was not challenged. Boson v Sandford (1691) 2 Salk 440; 91 ER 382. See also Turberville v Stampe (1698) 1 Ld Raym 264; 91 ER 1072; Middleton v Fowler (1698) 1 Salk 282; 91 ER 247; Jones v Hart (1699) 2 Salk 441; 91 ER 382. P Giliker, Vicarious Liability in Tort: A Comparative Perspective, CUP, Cambridge, 2010, p 12 (some footnotes omitted).

95. 96.

See the Further Reading list at the end of this chapter. Interestingly, the Neyers article was cited by the majority of the High Court in Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 at [9]–[10], although with no indication as yet whether the court was prepared to adopt the argument put forward.

97.

So, in Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194, a Mr Sutton was employed by a labour hire firm, Skilled, to work as a forklift driver for Deutz. Ashley J in the Supreme Court of Victoria found that he remained the employee of Skilled, despite his temporary placement, and hence that Skilled were liable for damage to Deutz’s property caused by his careless driving. Mr Sutton himself was also held personally liable, however, to Deutz. See the discussion of the Employees Liability Act 1991 (NSW): at 3.103 above.

98. 99.

There are a number of other specific ‘torts’ (the word means ‘civil wrongs’) which may occasionally be relevant in cases of workplace injury: the tort of ‘battery’, for example, which involves intentional wrongdoing. But for the purposes of this book we will mainly focus on the two torts which give rise to most of the civil actions in this area: negligence (Chapters 4 and 5) and ‘breach of statutory duty’: Chapter 6. Vicarious liability is relevant to both these torts. 100. This example refers to an intentional tort, of course, rather than a case of negligence. But it illustrates the principle of an employee behaving in such a way as to take themselves outside the ‘scope of employment’ altogether. In the recent decision in Brink’s Global Services Inc v Igrox Ltd [2010] EWCA Civ 1207 (discussed at

3.124) it was suggested by some members of the court that Heasmans would be decided differently today. But arguably the cases are distinguishable. 101. This case neatly illustrates the fact that the requirement that an action be ‘in the course of employment’ may differ depending on whether the question is being asked for the purposes of vicarious liability, or instead for the purposes of awarding statutory workers’ compensation to the worker concerned. The cases discussed in Chapter 11 will show that for the purposes of receiving statutory ‘workers’ compensation’ in relation to his own injuries, it is fairly clear that the truck driver here would be held to have been ‘in the course of employment’: see, for a case almost precisely on point, Park v Peach [1967] VR 558. But for the purposes of fixing liability on his employer for injuries that he caused to others, the law of vicarious liability did not regard him as acting within the course of his employment. 102. For these cases see N J McBride and R Bagshaw, Tort Law, Longman, Harlow, 2001, p 571. 103. Note that, as well as being a crime, intentional assault (‘battery’, to give it the correct name in civil law) is a tortious wrong for which civil damages can be recovered. 104. See Lord Steyn (at [24]–[25], [28]): ‘The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.’ See also Lord Clyde (at [37]), Lord Millett (at [69]). 105. See the comments of Lord Clyde in Lister: at [46]. Lord Hobhouse suggested a slightly different test: he argued that vicarious liability only arises where the employee has, in harming the plaintiff, also breached an implied term of their contract with their employer: see [59]–[60]. But his Lordship agreed that these conditions were satisfied in this case. Interestingly, Lord Millett distinguished Deatons v Flew on the basis that the barmaid was not ‘authorised to maintain order’ in the bar; her situation as a barmaid simply gave her an opportunity to wreak personal vengeance on the customer: see [81]. 106. For subsequent decisions of the Supreme Court of Canada relating to vicarious liability for child sexual abuse see, for example, KLB v British Columbia [2003] 2 SCR 403; HL v Canada (Attorney-General) [2005] 1 SCR 401; EB v Order of Oblates of Mary Immaculate in the Province of British Columbia 2005 SCC 60. In the EB case, for example, the order concerned was held not to be vicariously liable for sexual assaults committed by a school handyman, whose position was not one which intrinsically gave him power over the children in the school. 107. Other judgments following the Lister ‘close connection’ test more recently have included the Privy Council decisions in Brown v Robinson [2004] UKPC 56; AttorneyGeneral of the British Virgin Islands v Hartwell [2004] 1 WLR 1273 and Bernard v Attorney-General of Jamaica [2005] IRLR 398. 108. Lepore v New South Wales [2001] NSWCA 112. 109. See Rich v Queensland [2001] QCA 295. 110. It is noted in the decision (at [26]) that a claim for vicarious liability was abandoned at an earlier stage, presumably due to the fact that prior to the decision of the House of Lords in Lister it was thought unlikely that such a claim would succeed.

111. The exception was McHugh J, who indicated (at [136]) that it was not necessary for him to address this issue, as he would have found in favour of the plaintiff on the basis of a breach of a ‘non-delegable duty’. But later in his judgment (at [166]) his Honour seems to suggest that if he had found it necessary to decide the issue of vicarious liability, he would also have found that the state was vicariously liable for the teacher’s assault: ‘in most cases where a teacher has abused a pupil, the wrong will be taken to have occurred within the scope of the teacher’s employment.’ 112. Lloyd v Grace, Smith & Co [1912] AC 716 and Morris v C W Martin & Sons Ltd [1966] 1 QB 716, discussed by, for example, Gleeson CJ (at [44]–[48]) in Lepore. 113. Callinan J was the only member of the court who effectively rejected the possibility of vicarious liability for intentional criminal conduct: see [342]. 114. In addition, as noted previously, while not technically deciding the issue of vicarious liability, McHugh J’s comments (at [166]) suggest he would support the ‘sufficiently close connection’ test. 115. See the Further Reading list for articles commenting on this case. The lack of clarity in this area may explain the odd initial decision in A, DC v Prince Alfred College Incorporated [2015] SASC 12, where despite the facts being very similar to Lister (involving abuse by a boarding master), no vicarious liability was found. On appeal, however, in A, DC v Prince Alfred College Inc [2015] SASCFC 161, the Full Court of the Supreme Court of South Australia overturned the trial judge’s decision and found that the school was vicariously liable for the actions of the boarding master. 116. Note that this extension of vicarious liability to ‘non-employees’ has not so far been accepted in Australia, and in light of the reluctance of the High Court of Australia to expand the boundaries of the doctrine in cases such as Sweeney v Boylan Nominees Pty Ltd (2006) 80 ALJR 900; [2006] HCA 19 (see below, 3.134), seems unlikely to be accepted in Australia in the near future. (For another United Kingdom case applying vicarious liability to those ‘akin’ to employees, see Cox v Ministry of Justice [2016] UKSC 10, also in my view unlikely to be followed in Australia.) But the issues concerning ‘close connection’ will still be relevant to the second part of the vicarious liability discussion, the ‘scope of employment’ test. 117. In fact the case was not a common law claim but a claim under workers’ compensation legislation: for more details see Chapter 9. But the facts of the case illustrate the point. Other decisions relating to workplace assaults (although again based on workers’ compensation legislation rather than common law) are helpfully discussed in Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165. 118. Unfortunately, there is little discussion of the legal issues involved. Note that technically a police officer (who was alleged to have committed the assault) is not at common law an ‘employee’, but Law Reform (Vicarious Liability) Act 1983 (NSW) s 8 means that for the purposes of vicarious liability the Crown is liable for wrongs committed by the police in circumstances very similar to those where an employer would be liable for torts committed by an employee. 119. See S White and G Orr, ‘Case Note: Precarious Liability: The High Court in Lepore, Samin and Rich on School Responsibility for Assaults by Teachers’ (2003) 11 Torts Law Journal 1–47. 120. See R Weekes, ‘Vicarious Liability for Violent Employees’ (2004) 63 Cambridge Law

Journal 53–64; P Giliker, ‘Making the Right Connection: Vicarious Liability and Institutional Responsibility’ (2009) 17 Torts Law Journal 35–54. 121. See C Crawford, ‘Bouncers and Vicarious Liability’ (2006) Nov Proctor 23–4. 122. See QBE Insurance (Aust) Ltd v Orcher [2013] NSWCA 478. 123. See New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412; [2003] HCA 4; BC200300126 at [52]–[53] per Gleeson CJ. 124. Giliker, note 147 above, pp 53–4. 125. See, for example, R v Huggins (1730) 2 Ld Raym 1574; 92 ER 518. That is, there is usually no vicarious criminal liability. 126. See Luff v Oakley [1986] ACTSC 4 a case concerning a liquor licensing offence, where the person holding the licence was held criminally responsible for a breach of the law committed by a volunteer acting on their behalf. (The conviction was overturned on appeal in Oakley v Luff [1987] FCA 95 but on other grounds not relating to the ‘vicarious liability’ question.) 127. What about a breach of s 28, which imposes an obligation on an employee/ ‘worker’? In the context of a statute with clearly defined separate duties for employees and employers, it seems unlikely that the court would find that the employer was vicariously criminally liable for an employee’s breach. See B Barrett, ‘Personal and Vicarious Liability under the Health and Safety at Work Act’ (1999) 28 Industrial Law Jnl 100–4, discussing the United Kingdom case of R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 331, where based on the scheme of the United Kingdom legislation the court held that there was no vicarious liability for breach by an employee. 128. For further comment on the practical problems raised by the litigation, see an article in the Sydney Morning Herald of 17 May 2006. See also N Foster, ‘Vicarious Liability for Independent Contractors Revisited: Sweeney v Boylan Nominees Pty Ltd’ (2006) 14 Torts Law Journal 219–23. 129. For an overview of the doctrine of ‘non-delegable duty’, see the article by Foster (2016) in the Further Reading list at the end of this chapter. 130. There are other situations where the law imposes a non-delegable duty but these will not be discussed here. The High Court clarified the law in this area somewhat in its decision in Leichhardt Municipal Council v Montgomery [2007] HCA 6, esp the judgment of Kirby J (at [117]–[120]) which articulates criteria for determining whether such a duty exists. 131. See also Brooks, note 114 above, pp 29–34. 132. It seems that the court felt it necessary to address the issue of non-delegable duty because that is the way that the New South Wales Court of Appeal had found liability. It seems likely that the court approached the matter this way because the view was taken that Deatons v Flew precluded vicarious liability for intentional torts. As was seen in the previous section (see 3.122), the High Court in Lepore has now explained that that view is too simplistic, and that there can be vicarious liability in some cases of intentional torts. Nevertheless, this ‘red herring’ seems to have led the High Court to delve into what was arguably not even an issue at all in this case, given that the teacher was an employee.

An example of some of the difficulties that can arise in applying the High Court’s 133. view that there can be no liability under the law of ‘non-delegable duty’ for intentional torts can be seen in Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377: the employer (ISS) of a security guard who was intentionally harassed by a supervisor of the company where the guard was placed (Nationwide) was found not to be liable for the harm he suffered. In Foster (2016) (see the Further Reading list at the end of this chapter) reasons are offered as to why the High Court ought to revisit its view on this point, based in part on a recent formulation of the law on non-delegable duty by the United Kingdom Supreme Court in Woodland v Essex County Council [2013] UKSC 66; [2014] 1 AC 537. 134. Graw, note 66 above, p 395. 135. Taylor v Caldwell (1863) 122 ER 309. 136. The High Court confirmed that this analysis applies under Australian law in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61. 137. See Siagian v Sanel Pty Ltd (1994) 122 ALR 333 for discussion of these issues. 138. For more detail on the law as to unfair dismissal, see C Sappideen, P O’Grady, J Riley and G Warburton, Macken’s Law of Employment, 7th ed, Lawbook Co, Sydney, 2011, Ch 12. The law in this area was affected by the amendments made by the previous Coalition government in the ‘Work Choices’ legislation, and has been affected again by changes made under the Fair Work Act 2009 (Cth). However, these issues are beyond the scope of this book. See Stewart, note 66 above, Ch 17 for a recent overview.

[page 193]

4 PROTECTION OF WORKPLACE SAFETY UNDER TORT LAW — NEGLIGENCE: DUTY OF CARE

Aims The aims of this chapter are: to provide an overview of the common law rules in the tort of negligence imposing liability for compensation for injuries suffered in the workplace by an employee, and recent statutory modifications to those rules; and to describe the considerations the courts take into account in determining whether or not one workplace participant owes another a ‘duty of care’.

Objectives After completing this chapter, you should be able to: describe the elements of the tort of negligence; and discuss whether or not a duty of care would be owed in a specific workplace injury situation.

Introduction 4.1 In this part of the book we turn to the area of civil law known as tort law, specifically the two torts of ‘negligence’, and ‘breach of a statutory duty’. In this chapter and the next we will be examining the important tort known as negligence. In this chapter we consider the preliminary issue of ‘duty of care’ — when does one person owe a duty to take reasonable care to protect another from risk of harm? In Chapter 5 we will continue our analysis of the tort of negligence by considering the other aspects of breach, causation and damages, along with the defences and limits imposed on the common law action by recent legislation. In Chapter 6 we will then discuss the separate tort action for breach of statutory duty. 4.2 The general law of torts, or ‘wrongs’, broadly speaking, deals with a person’s liability for damage or injury suffered by someone else, where the liability does not arise from contract. As discussed previously, this is part of the area of workplace health [page 194] and safety law dealing with compensation for an accident that has already occurred. However, as we will see in Chapter 7, the law in this area has also had a significant impact on the preventative legislation. Concepts from the civil law of negligence, such as ‘foreseeability’, ‘reasonably practicable’, and the so-called ‘calculus’ of negligence, have all been introduced into the criminal law with many of the connotations they bear under the civil law. For that reason alone, it is important to study the law of workplace negligence before considering the criminal law. There are a number of different possible actions in tort, but

most of the minor ones are not particularly relevant to the issues of safety in the workplace. One that is not very widely used in other areas, but which is of great significance in the case of workplace injuries, is the action for breach of a statutory duty. We will examine this in Chapter 6. However, as there is no doubt that the tort of negligence is by far the most common action in tort, we will start there.

Background 4.3 The modern law of negligence stems from a single, crucial case from 1932, the case of Donoghue v Stevenson [1932] AC 562 (Donoghue). A decomposed snail in a ginger beer bottle that had been purchased for the plaintiff led her to make a claim for damages for gastroenteritis. The critical factor in this case was that there was no contract between the customer and the manufacturer and, as a result, no pre-existing relationship between the two. The question was: could she claim damages from the manufacturer? The House of Lords decided that a manufacturer of goods owed a legal duty of care to the plaintiff. Lord Atkin formulated a very broad ‘neighbour’ principle which itself was based upon a story which Jesus told, recorded in the New Testament, usually called the parable of the Good Samaritan.1 Lord Atkin expressed the principle in this way (at 580): You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.

So expressed, the duty to take care is very broad. In fact, the subsequent history of the law of negligence can be described as a process by which the courts first developed [page 195]

ways of limiting the breadth of Lord Atkin’s words, later started to do away with some of those limitations, and then more recently tried to re-introduce them. 4.4 The modern Australian approach to negligence has in recent years often been summarised by reference to the judgment of Deane J in Jaensch v Coffey (1984) 155 CLR 549 (Jaensch). His Honour set out the elements of negligence (at 586) in a way that may be summarised as shown in the box below.2 Elements of negligence (i) a duty to take reasonable care owed by the defendant to the plaintiff. This must be established by showing: (a) reasonable foreseeability of risk of the kind of injury sustained; (b) a relationship … between the two people in connection with (1) the type of act or omission; (2) the injury sustained; (c) absence of any exclusion of liability by statute, contract or other common law principle. (ii) a breach of that duty by behaviour inconsistent with the risk foreseeable; (iii) injury actually caused by the defendant’s negligence, which was reasonably foreseeable, and not too remote. [emphasis added]

In many cases it will be obvious that these various elements are satisfied on the basis of precedent — that is, previous cases will have clearly established that certain types of relationships and certain types of damage are within the guidelines. Our specific focus, of course, will be on the subject of the duty owed by a business to its employees and others to provide a safe workplace. But you should be generally aware of other situations where duties have been imposed, as part of the law of negligence, as it is conceivable that as the law expands it will have further impact on the area of workplace safety.

Duty of care: specific duty situations

4.5 The first element of negligence is the duty of care. While this has been expanded in many ways over the years, it is still true to say that you do not owe a duty to be careful, in the area of the law of negligence, to everyone in the world. For there to be liability for negligence, there must first be a duty not to be negligent. We will start by considering the well-established situations where a duty of care is owed, and then outline the considerations that need to be taken into account where a ‘new’ case arises that does not fall into the previous categories. [page 196] Personal injury and property damage 4.6 We start the discussion of specific duty situations with personal injury and property damage, as these are the sorts of harm most commonly seen in workplace safety cases. The distinction between the two is fairly clear: personal injury means an injury of some kind to the person of the plaintiff, such as a cut or bruise or bump or, in the worst case, death; and property damage means some type of damage to the person’s property (such as a car, a computer, or a tool). In the general area of personal injury or physical damage to other property, a duty of care will usually arise where there is reasonable foreseeability of harm: per Brennan J in Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 609 at 632, citing San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at 367. Although it is not quite so simple, a reasonably safe generalisation is: if you cause personal bodily injury to someone which you could have foreseen as a real possibility, then you will probably be liable for negligence unless: You were authorised to do so by some statute.

The harm you caused resulted from a failure to do something (an omission rather than a commission). The harm was caused by the actions of some other responsible actor whom you failed to control (the common law is reluctant to impose a duty on a party to control the criminal tendencies of others: see Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, followed in Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 and applied in Wright v Optus Administration Pty Ltd [2015] NSWSC 160). Holding you liable would undercut or negate principles of liability in some other well-established area of the law. Duty to employees 4.7 The duty to avoid foreseeable physical injury is, however, very clear in the case of an employer–employee relationship. The classic Australian formulation of the modern duty is found in the judgment of Dixon CJ in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. His Honour said in relation to the duty of an employer (at 25): The duty, to whomever it falls to discharge it, is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. To quote a famous English case, Paris v Stepney Borough Council [1951] AC 367 at 384: The duty of an employer towards his servant is to take reasonable care for his servant’s safety in all the circumstances of the case.

To these we might add a general comment from the High Court decision in McLean v Tedman (1984) 155 CLR 306 at 313: [page 197] The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer.

In the New South Wales Court of Appeal, Kirby P, in Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 commented (at 6): An employer is under a duty to its employees to ensure that reasonable care is taken to provide and maintain a safe system of work and a safe place of work for them. That obligation is personal to the employer. It is a non-delegable duty.

4.8 Another good summary of the law in this area is to be found in the following comments of Kirby J in Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [101]: [I]t is the duty of an employer at common law to take reasonable care to avoid exposing an employee to unnecessary risk of injury.1 That duty includes the provision of a safe system of work; a safe place of work; and proper plant, equipment and appliances. The duty is not delegable. It is personal to the employer. It extends to taking reasonable steps in accident prevention and not waiting for accidents to happen before safeguarding the health and safety of employees.2 The concept of the employer’s duty is not a static one. Although the same verbal formulae have been used in the cases, there can be no dispute that the scope of the duty expanded with every decade of the twentieth century. In part, this may reflect an interaction between the common law of negligence and the growing network of statutory duties imposed on employers for the protection of their employees.3 In part, it may reflect increased awareness of the necessities of accident prevention and an unwillingness to tolerate the imposition of unreasonable burdens on employees injured whilst contributing to the profits of their employers. [emphasis added] 1.

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25.

2.

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309; cf Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1 at 9, 18; Fleming, The Law of Torts, 9th ed (1998) at 560. Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 at 570–2; Lamb v Cotogno (1987) 164 CLR 1 at 11–12; cf Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 at 30–1 per Gummow J; 167 ALR 1 at 40; Gummow, Change and Continuity: Statute, Equity, and Federalism, (1999) at 11–18.

3.

And, in Liftronic Pty Ltd v Unver [2001] HCA 24 at [85], Kirby J again summed up the duty as follows: The appellant … as employer, bore a heavy responsibility to devise, institute and enforce a safe place of work, and safe system of work, so as to avoid exposing workers, such as the respondent, to unnecessary or unreasonable risks.1 This was a duty personal to the employer. The ultimate legal responsibility for its fulfilment could not be delegated.2 1.

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18.

2.

Kondis v State Transport Authority (1984) 154 CLR 672 at 678; McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906 at 918.

[page 198] In Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28, the majority of the High Court (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) summed up the employer’s duty in a very clear way as follows (at [37]): It is well accepted that, in the absence of statutory provisions to the contrary, an employer owes a common law duty to its employees to take reasonable care for their safety.1 The duty encompasses an obligation to take reasonable steps to provide safe plant and machinery and a safe system of work.3 1.

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25; Commissioner for Railways (NSW) v O’Brien (1958) 100 CLR 211 at 216–17; O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 229; Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873; 42 ALR 627 at 629.

In New South Wales v Fahy [2007] HCA 20, Kirby J noted (at [104]): At common law the general rule is that a person ‘is not bound to do acts for others’ benefit; he may sit still and let things take their course’.1 However, by long authority, the very nature of the employment obligation creates a duty of care between those party to it. Indeed, it is a relationship that obliges the employer affirmatively to establish and enforce a safe system of work.2 In the employment relationship, the employer is responsible for keeping abreast of technological and scientific knowledge3 and for taking positive action to consider, and respond to, the needs of accident prevention in accordance with ‘changing ideas of justice and increasing concern with safety in the community’.4 Some of the most important contributions to the perception of the last-mentioned necessity, according to our law, were written by McHugh J.5 1.

Terry, ‘Negligence’ (1915) 29 Harvard Law Review 40 at 52.

2.

See, for example, Katsilis v Broken Hill Pty Co Ltd (1977) 52 ALJR 189; 18 ALR 181. Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783.

3. 4. 5.

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309. See, for example, Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1 at 9, 18; Bankstown Foundry Pty Ltd v Braistina (1985) Aust Torts Reports ¶80-713 at

69,127, see also at 69,125–6 per Priestley JA.

4.9 The factors mentioned in the quotations above — safe plant and machinery, system of work and place of work — are part of a group of three or four factors that have often been used in expressing this duty. Thus, in the case of Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 at 78, the case that properly established the modern duty of an employer, Lord Wright said: The obligation is threefold — the provision of a competent staff of men, adequate material, and proper system and effective supervision.

More recently the courts have tended to place emphasis on the duty to provide ‘safe premises’ rather than the duty to provide ‘competent staff’. [page 199] The reason for the previous focus on ‘competent staff’ was that there used to be a legal principle called the doctrine of ‘common employment’. Following this doctrine the courts said that an employee had to take the chance of negligence by a fellow employee, and as a result could not recover damages from the employer if injured by the negligence of a fellow employee.4 The only remedy the employee had was to prove that the fellow employee was known to be incompetent and the employer had breached its duty to provide a competent staff. The doctrine of common employment was effectively abolished, however, by the decision in Wilsons & Clyde Coal, which held that the employer’s duty to provide a safe working environment could not be delegated to an employee; that is, the employer remained liable for the negligence of the employee.5 The doctrine was also effectively finally put to rest by statute in New South Wales by the Workers’ Compensation Act 1926 (NSW) s 65(1).6 One point worth noting is that the duty owed to an employee

will be relevant where injury occurs in connection with the employment; but it will not arise simply by virtue of the existence of an employment relationship, where the injury is not really connected to the work being done. In the English decision of Vaughan v Ministry of Defence [2015] EWHC 1404 (QB) a marine, who was on a training exercise in the Canary Islands, was given the morning off while waiting to depart and went swimming, where he dived into shallow water and was seriously injured. The court found that his accident occurred while he was ‘off duty’ and hence at the time there was no relevant duty of care owed by his employer. (We will see in Chapter 11 that this situation might be regarded as being ‘in the course of employment’ for the purposes of the statutory, no-fault, compensation scheme. But it would not give rise to common law liability.) Duty to employees is non-delegable 4.10 The cases make it clear (as we saw in Chapter 3: see 3.136) that the duty owed to an employee is not only not able to be delegated to an employee; it is also not able to be delegated to an independent contractor. In Kondis v State Transport Authority (1984) 154 CLR 672 at 688, Mason J said that the employer: … should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe

[page 200] system he should bear the consequences … the [employer’s] duty to provide a safe system of work was non-delegable and [it] was liable for any negligence on the part of its independent contractor in failing to adopt a safe system of work.

As in the Kondis case, then, if an independent contractor injures an employee (who has been engaged by the employer) at work, the employer will be liable to pay damages if the injury was the result of any negligence by the contractor.

This aspect of the employer’s duty of care, even extends to the situation where an employee is ‘loaned out’ to do work for another, either on a specific occasion or generally as in the case of a ‘labour hire’ firm.7 In Thomas v Sydney Training & Employment Ltd [2002] NSWSC 970, the training organisation which employed Thomas (who had been placed under the supervision of another company) were held to be Thomas’ employer and to have a nondelegable duty of care.8 4.11 In England, this principle applied in McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906. In Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191, the labour hire firm, Waltron, through whom Boral had engaged the services of the injured driver, Ms Watts, was found to be jointly liable with Boral. As Ms Watts’ employer, Waltron owed her a non-delegable duty of care: at [62]. In Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203, the plaintiff was employed by Challenge Recruitment Australia Pty Ltd (CRA), and sent to work for a host company, Concrete Demolition Contractors Pty Ltd (CDC). When the plaintiff was injured by falling off a ladder that was not properly secured by the CDC foreman, CRA was found liable on two separate grounds: (1) through breach of its personal duty of care because it had not provided proper training in working at heights; but also (2) because it was liable for the casual act of negligence of the CDC supervisor in directing the plaintiff to use an unsecured ladder, due the non-delegable nature of the duty: see Giles JA at [48]. In Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, a driver who was employed by a ‘labour hire firm’, Dependable, was allocated to work for Pioneer. He was injured when cleaning his truck at a Pioneer depot, and Pioneer conceded liability. McColl JA (for the Court of Appeal) held (at [58]) that Dependable (the employer) was also liable, as it had not discharged its non-delegable duty of care, because it had

effectively not given any consideration at all to the system of work Pioneer had adopted for the drivers: Dependable must have known that Pioneer’s system of work exposed the appellant to different site conditions throughout the day. In my view it was incumbent upon Dependable, in order to discharge its non-delegable duty of care to the appellant, to ensure that a reasonably safe system of work was devised which ensured that the appellant could carry out work of an ambulatory nature with safety.

4.12 However, an interesting judgment of Basten JA suggests some ‘reformulation’ of the non-delegable duty of care owed by an employer: see DIB Group Pty Ltd t/as [page 201] Hill & Co v Cole [2009] NSWCA 210 (DIB). Mr Cole, a truck driver, was delivering fuel to premises occupied by DIB. He was injured when he stepped on a loose pit lid and fell into the pit. The trial judge found that DIB as occupiers of the premises ought to have fixed the loose lid, and this was not challenged on appeal. But what was in issue was whether Cole’s employer, Lewingtons, was also liable for the injury. This came down to the issue of whether the employer could be said to be in breach of a non-delegable duty. In resolving this question Basten JA commented that the term ‘non-delegable’ is not a reliable indicator, as it is unclear what is meant by ‘delegation’: at [27]. His Honour preferred the term used in one of the early English decisions mentioned above, Wilsons & Clyde Coal Co Ltd v English [1938] AC 57: the question is what is the ‘personal’ duty of the employer? His Honour said that there are a number of problems that arise when this personal duty is applied to circumstances outside the immediate control of the employer. For example, in Davie v New Merton Board Mills Ltd [1959] AC 604 at [32] it was held that an

employer is not ‘personally’ liable for a defect in equipment that has been supplied by an outside manufacturer. 4.13 Accepting that there is liability for carelessness of a contractor on the employer’s premises, as in Kondis, still leaves (Basten JA commented (at [39])) a number of difficult questions when an employee is injured elsewhere: The application of these principles has given rise to differing views in cases where the employer is not in control of the premises or place on which or at which the worker is injured.

In some cases where the employer was found liable for an incident occurring on other premises it was established that the employer had personal knowledge of conditions on the premises: see, for example, Bourke v Hassett [1998] VSCA 24. After reviewing these cases and the facts of the matter Basten JA in DIB came to the following conclusions (at [54]–[55]): The employer’s duty, however effected, to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control. Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific questions with respect to what may be expected of an employer exercising reasonable care for the safety of its employees. For example, is it reasonable for the employer to request or require access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it necessary (and sufficient) for the employer to inquire in specific terms of its own employees as to the nature of the conditions they encounter at other premises? These questions are analogous to the approach to be adopted with respect to the acquisition of plant and equipment discussed in Davie. In such a case, it is not sensible, nor consistent with the requirement to take reasonable care, to treat the

[page 202] employer as ‘delegating’ its duty to provide safe equipment to the manufacturer or supplier. So long as it has acted reasonably, the employer will not be liable for injury to its employee resulting from a defect in equipment or plant not identifiable by

reasonable care on the part of the employer, even though the defect is the result of negligent manufacture.

In this particular case, even if it had been reasonable to expect the trucking company to conduct a ‘risk assessment’ inspection of the premises where the truck was to unload, the trial judge had found that the loose pit lid would not have been noticed: at [61]. Hence the Court of Appeal held there was no liability on the employer. This could be said to be a fairly fundamental restatement of the law of ‘non-delegable duty’ (NDD) owed by employers (and would not seem to sit very happily with some of the cases noted above). However, it may be influential in the future in seeing a limitation of the non-delegable duty to situations where the employer would (apart from the engagement of some third party) have ‘control’ over the circumstances of work. 4.14 Nevertheless, in many cases where a worker is sent to work at another premises the employer will still have an obligation to provide proper safety systems and equipment. In Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406, the company, Pacific Steel, employer of Mr Barahona, was found to be in breach of its nondelegable duty of care. The court said (at [128]): Pacific required Mr Barahona to undertake work on a building site without tools, equipment or direction. It abandoned him to the site. He was required to undertake work which was dangerous and for which equipment should have been provided to ensure that he would not fall from a height. This was not a case such as the labour hire cases where the employer has no input into the manner in which work is to be undertaken. Pacific must be taken to know that rectification work may be undertaken at heights as the original steel works had been performed at heights. The work Mr Barahona was undertaking was part of the steel works that Pacific had contracted to do. Pacific did not take adequate steps to ensure that Mr Barahona was provided with a safe method of work, adequate directions, a safe place of work, or with the tools and equipment reasonably necessary to safely carry out the work which he was directed to do. In our opinion, Pacific breached its non-delegable duty of care to Mr Barahona.

The difference between the approach in DIB and that in

Barahona may be that in DIB the issue was really one of the ‘condition of the premises’ (an unobservable hole in the ground), whereas in Barahona the issues related to a system of work which should have been known to the employer.9 4.15 One helpful way of approaching the question of nondelegable duty is to ask whether the employer has vested the contractor with some sort of authority to direct [page 203] the behaviour of the injured employee (and hence responsibility to care for the safety of that employee). This may be a more sensible question than simply asking whether the incident occurred on the premises of the employer, or somewhere else.10 It can therefore be argued that there should be liability under the NDD principle where a worker has been sent elsewhere to work, where they are placed under the authority of another company; the original employer should continue to have a nondelegable duty and can be held responsible for a failure of reasonable care by the person exercising authority.11 Note that in a slight extension to the traditional duty of care, the Supreme Court of New South Wales held in CSR Ltd v Wren (1997) 44 NSWLR 463 that a company which employs workers through a subsidiary company which it completely controls cannot escape its duty of care in this way. It will remain as liable as if it were the direct employer.12 4.16 In some cases the courts have been prepared to extend this non-delegable duty to a relationship very similar to that of employer and employee. In Delahunt v Westlake [1999] SASC 366, the court was prepared to assume that a duty of that sort arose where the plaintiff was an apprentice and not exactly under a contract of employment.13 Lander J in the Full Court said (at [23]):

I agree, in the circumstances of this case, that even though there was no relationship of employer and employee between the appellant and the male respondent it was appropriate to proceed upon the basis that the duty of care owed by the male respondent was akin to that owed by an employer to an employee. The respondents owed the appellant a non delegable duty of care to provide the appellant with a

[page 204] safe system of work which included a duty to avoid exposing the appellant to an unnecessary risk of injury. [emphasis added]

In some situations a duty of care will even be owed to a prisoner undertaking work as part of a custodial sentence: see Haseldine v South Australia [2007] SASC 39; (2007) 96 SASR 530. However, note that the Full Court held that the duty is not the same as that arising in a ‘true’ employer–employee relationship (or at least does not arise for the same reasons): see Gray J at [49]–[50]; White J at [79]–[80]. A slightly unusual (but clearly correct) case involving the non-delegable duty owed to employees was Sneddon v Speaker of the Legislative Assembly.14 This case involved a claim made by a former staff member of a state member of parliament, Milton Orkopoulos. The staff member alleged she had been bullied as a result of complaints made regarding the member’s behaviour (which proved to be true, leading to his conviction on a number of offences.) The Speaker of the Legislative Assembly was the ‘employer’ of staff members allocated to members’ offices. On this question, the court ruled that the Speaker, as the employer, was liable for the actions of the member which led to the employee’s psychological harm.15 In Galea v Bagtrans Pty Ltd,16 the plaintiff was employed by Adecco (a labour hire firm) and had been placed to work as a truck driver with Bagtrans. He suffered a back injury after driving a particular Mack truck for Bagtrans in circumstances where he had previously complained to the firm about the defects in the truck seat, but nothing had been done to repair it. He had specifically

asked Pat, a Bagtrans employee, whether the seat had been fixed and had been told, wrongly, that it had. There was no doubt that Bagtrans were liable to Mr Galea, but the question was whether the employer was also liable for breach of non-delegable duty. On the general principles previously noted, the Court of Appeal unanimously ruled that Adecco was liable. President Allsop pointed out the employer had a non-delegable duty to see that reasonable care was taken to provide its employee with a safe place of work and equipment. If this was not done, his Honour stated, the employer would be held responsible for the failure by the person to whom the employer had been entrusted (even in the absence of any personal fault by the employer). Hence, whether or not Adecco was at fault was irrelevant.17 Duty to contractors and others 4.17 So far we have considered the duty owed to an employee. (The NDD doctrine is a way of holding an employer liable for harm committed to an employee by a contractor.) What then of the situation where a contractor is injured? Does a ‘principal’ owe any duty to independent contractors or the employees of those contractors? As we saw [page 205] in Chapter 3 (see 3.141), the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 established that an employer may owe a duty of care to contractors. The court said that an employer has a duty to prescribe a safe system of work, if it has control over that system: at 31. However, the employer is not personally liable for the negligence of, say, another contractor, as the employer’s duty to contractors does not usually fall into the class of ‘non-delegable’ duties.18

Stop and Think 4.1 Before proceeding, consider the arguments that could be made on either side as to whether someone who engages a contractor to do work for their business ought to owe a duty to take reasonable care for the safety of that person. Whatever your personal preferences, try to honestly set out the case for, and the case against, such a duty of care. If you can gather reasons on either side, try to consider whether they would apply to all contractors, or only to certain types of contractors. Undertaking this exercise may give you some understanding of the hard questions the courts have had to wrestle with in this area.

4.18 The rule that a principal may owe a duty of care to a contractor was illustrated in TNT Management Pty Ltd v Brown (1996) 23 MVR 240. In that case Mr Brown was an employee of a company, FRJ Transport Pty Ltd, who had a contract with TNT Management Pty Ltd to carry goods by truck from Brisbane to Sydney. Mr Brown was required to meet very strict deadlines that were set by TNT. In fact, the deadlines were so strict that the evidence showed he could not meet them unless he broke the law by speeding. He had an accident that was partly caused by speeding, and sued TNT. While the relationship between Mr Brown and TNT was not that of employer and employee, the court nevertheless held that in certain cases a duty of care may still arise from a relationship of principal and contractor. Similarly, in Forsayth Mining Services Pty Ltd v Jack (SC(WA), Full Court, 10 May 1995, unreported), a firm in control of a building site, which had supplied equipment which was involved in an accident, was found to have a duty of care towards the employee of an independent contractor injured on the site. Again, in Rauk v Transtate Pty Ltd; Restile Pty Ltd v Transtate Pty Ltd [2000] NSWSC

1020 (see 3.28), O’Keefe J found that while Mr Rauk was not an employee, due to its continuing control over his working conditions, the company Transtate owed him an almost identical duty, his Honour stating at ([27]–[29]): Although the duty of care owed to the plaintiff was not the same as would have been owed to him had he been an employee, in the circumstances of the present case relevantly it was not very different …

[page 206] There was in the circumstances of the present case a duty of care owed by the defendant to the plaintiff to have in place and maintain a safe system of work and supervision and so to organise its activities as to avoid or minimise risk of injury to the plaintiff.

4.19 Other cases dealing with the issue of a duty owed to a contractor or the employee of a contractor include: Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135: Astra engaged a company, Rondal, to undertake structural alterations to its premises over Christmas; Rondal engaged a one-man company whose director, W, did the work; W fell from the ceiling. He had not been given proper supervision or instructions, had no safety equipment, was under great pressure of time and was working a 12-hour day; held that Rondal, as the company doing the work, had a duty of care to set up a safe system for its contractor W, under the Stevens v Brodribb Sawmilling Co Pty Ltd principles, and was in breach. State Rail Authority of NSW v Watkins [2001] NSWCA 405: W was employed by Sydney Plumbing who were contracted by Abigroup who were refurbishing a railway station under contract with the SRA. W was injured when a metal ladder he was using came into contact with overhead electrified power lines; held that SRA’s duty as occupier only extended to the safety of the premises; they were not liable for W’s day-to-day work, which was being supervised by Abigroup.

Dettmer v K J McCracken Pty Ltd [2002] NSWCA 199: D, a very experienced plumber, had a contract with KJM to do repair work on some guttering at a school, under a contract between KJM and the State of New South Wales; D was injured in course of doing the work; held that neither the state nor KJM were liable — the state as occupier was entitled to rely on the contractor’s experience where it was not specifically aware of problems in the structure; KJM were also entitled to rely on D’s long experience in the trade to allow him to set up his own system of work, and had not tried to direct him as to how to do it. 4.20 In Hetherington v Mirvac Pty Ltd [1999] NSWSC 443, it was held that a head contractor had no duty of care to a subcontractor working on a site. On the other hand, for a case in which a duty was held to exist see Le Cornu Furniture and Carpet Centre Pty Ltd v Hammill (1998) 70 SASR 414. Relevant differences between the cases included the fact that in Le Cornu the head contractor had actual knowledge that the roof was dangerous, and made insufficient inquiries as to whether the contractor concerned was experienced.19 In White v Malco Engineering Pty Ltd [1999] NSWSC 1055, the injured worker was employed by the company Skilled Engineering but on the premises of Malco. James J held (at [451], [453]) that in those circumstances Malco owed a duty of care to the worker almost indistinguishable from that owed to an employee: Counsel for the plaintiff, while accepting, and indeed submitting, that the plaintiff’s employer was Skilled, and not Malco, submitted that Malco occupied a position

[page 207] substantially similar to that of an employer and owed duties to the plaintiff commensurate with those of an employer … I consider that counsel for the plaintiff’s submissions should be accepted. Malco did occupy a position substantially similar to that of an employer. It was Malco who communicated with the plaintiff and asked him to work on the Malco project at the

Mill. Malco asked that the plaintiff’s labour be hired to it through ‘a body hire company’. It was immaterial to Malco which body hire company was used. It is substantially true to say that Skilled, the body hire company selected, was like a conduit for the rendering of the plaintiff’s labour for the benefit of Malco … [emphasis added]

Similarly, in Thomas v Sydney Training & Employment Ltd [2002] NSWSC 970, the company, Infocus, which was ‘host’ to a trainee paid by STE, was held to have a duty of care to the trainee equivalent to the duty owed by an employer to an employee.20 In Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191, it was accepted that Boral, which had engaged the injured driver Ms Watts through a labour hire firm, Waltron, clearly owed her a duty of care to prescribe a safe system of work. The duty of a ‘host’ to a labour-hire worker can be nondelegable in some rare cases, according to TNT Australia Pty Ltd v Christie [2003] NSWCA 47 at [41]. TNT were found to be liable to an injured labour-hire worker because a contractor they had engaged to maintain machinery had done so carelessly. This decision was followed in Thornton v Wollondilly Mobile Engineering [2012] NSWSC 621 where a trainee employed by Sydney Training and Employment Ltd had been placed to work in Wollondilly, and worked completely under the supervision of its staff. Adamson J held (at [109]–[110]) that the ‘host’ company ‘owed a nondelegable duty to the plaintiff to prescribe and provide a safe system of work’. Christie was also followed on this point in P & M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167. See also Boyded Industries Pty Ltd v Canuto [2004] NSWCA 256 at [34] (which involved a ‘customer relations manager’ in a car yard, who was technically employed by a ‘Services Trust’ but in fact worked as if she were an employee): Although the respondent was not a direct employee of the appellant the appellant accepted in its written submissions on appeal that she had worked at those premises under its direction, supervision and control and that it owed to her the same duty as if she had been its direct employee.

4.21

Another important Court of Appeal decision, Rockdale Beef

Pty Ltd v Carey [2003] NSWCA 132, clarified some of the circumstances where a duty of care will be owed to a contractor. Ipp JA, with whose judgment the other members of the court agreed, noted (at [84]) that while a duty of care will arise in the situations referred to in Stevens v Brodribb Sawmilling Co Pty Ltd (where detailed coordination of activities is necessary), it may arise in other cases: In my opinion, nothing said by Mason J or Brennan J in Stevens, or Heydon JA in Kolodziejczyk prevents the general law of negligence imposing on an entrepreneur a duty of care owed to an independent contractor. Such a duty may arise in

[page 208] circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations (not applicable in Stevens and Kolodziejczyk) such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present.

In that case, Mr Carey worked at a cattle feedlot and was injured in the course of mustering cattle. He had worked as an employee at the feedlot until 1992 and then changed his status to that of an independent contractor, while continuing to do the same work in the same way. He had no effective control over when, where and how he worked; he was not in a position of ‘equal bargaining power’ with the company: see [88], [90]. In the circumstances it was held that the company in charge of the feedlot owed him a duty of care which was indistinguishable from that which it owed to its employees: at [94]. In Lipman Pty Ltd v McGregor [2004] NSWCA 6, the head contractor at a building site was held to be liable for an injury sustained by an employee of a subcontractor. Presumably the court was satisfied that there was a general duty of care based on

the coordination of activities at the site. The accident occurred because the injured worker was descending a staircase which had been partly erected by an employee of the head contractor, but to which no appropriate safety warning had been attached. The head contractor was vicariously liable for the carelessness of its employee. 4.22 In an important decision, Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19, the High Court reaffirmed that a duty of care may be owed to an independent contractor in a variety of situations. In that case, Mrs Thompson was a contractor delivering bread to a Woolworths store. The system of delivery that Woolworths had established was that the truck had to arrive at the loading bay early in the morning and that the bread had to be accepted by a Woolworths employee. As Woolworths knew, however, large industrial waste bins left by council employees often blocked the loading bay, and on many occasions the delivery drivers would move these bins to speed up the delivery process (as the Woolworths loading dock officer would sometimes not arrive for 10–15 minutes after the truck had arrived). In moving one of these bins Mrs Thompson injured her back. She had often complained previously that moving the bins presented a hazard to drivers. The High Court found that Woolworths owed a duty of care to drivers in the position of Mrs Thompson. That duty was partly generated by the fact that Woolworths were the occupiers of the land on which the injury occurred. However, it also arose due to the ‘mutual commercial purpose’ for which Mrs Thompson was on the land: see [3], [27]. This meant that Woolworths owed a duty which extended to the prescription of a safe system of work for those who were undertaking deliveries and were obliged to comply with Woolworths’ directions in this regard. In a joint judgment (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) the court commented (at [26]–[27]): The purpose for which, and the circumstances in which, the appellant was on the

respondent’s land, constituted a significant aspect of the relationship between them.

[page 209] The appellant, in the pursuit of her own business, was delivering goods to the respondent for the purpose of sale in the course of the respondent’s business. To do that, she was required to conform to a delivery system established by the respondent. … Since the respondent established the system to which the appellant was required to conform, the respondent’s duty covered not only the static condition of the premises but also the system of delivery. Some aspects of what went on were within the independent discretion of the appellant. She was not the respondent’s employee. Within a fairly narrow time frame, she could choose when she made her deliveries. She could choose what kind of delivery vehicle suited her purpose. Decisions about the management of the vehicle, and the method of unloading, were largely left to her. Even so, the respondent established and maintained a system, and its obligation to exercise reasonable care for the safety of people who came onto its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury. A number of aspects of the facilities and procedures for the delivery of goods into the respondent’s store might have involved issues of health and safety. Many, perhaps most, of the people who made the actual deliveries were outside the respondent’s organization, and were not subject to the direct control it exerted over its employees. Even so, they were regular visitors to the premises, for a mutual commercial purpose, and it was reasonable to require the respondent to have them in contemplation as people who might be put at risk by the respondent’s choice of facilities and procedures for delivery. [emphasis added]

4.23 Following the High Court’s decision, the New South Wales Court of Appeal came to a similar decision in Rabay v Bristow [2005] NSWCA 199, holding the occupier of premises, where a delivery had to be made through a narrow door where there was a clear tripping hazard, liable for failing to remove the known hazard. The New South Wales Court of Appeal in Wooby v Australian Postal Corporation [2013] NSWCA 183 similarly held that Australia Post did owe a duty of care to a contracted driver who regularly came onto its premises to collect parcels for delivery.21 In Mambare Pty Ltd t/as Valley Homes v Bell [2006] NSWCA 332, Handley JA commented (at [18]): A principal or head contractor may owe a duty of care to subcontractors and their

employees to establish a safe system of work.

In that case it was held, however, that such a duty did not require the head contractor to continually supervise the work of subcontractors. In J Blackwood & Son v Skilled Engineering [2008] NSWCA 142, it was held that a ‘host’ employer owed a duty of care to the employee of a labour hire firm who had been supplied to work in the host’s factory. Campbell JA noted (at [99]): By virtue of the contract of employment, the Respondent [the labour hire firm] had a legal right to direct the Worker concerning the day-to-day conduct of her work.

[page 210] However, by its conduct, the Respondent made clear to the Worker that what it required of her was to do work of the type and in the manner directed from time to time by the Appellant [the host]. The work of the Worker at the Appellant’s warehouse involved her, so far as has any causal bearing on her injury, in using equipment installed and supplied by the Appellant, in the course of carrying out a system of work that was devised and supervised by the Appellant. Her work in the decombi area was one part of a larger industrial operation that the Appellant carried out. It was the Appellant who had instructed her in the manner of carrying out the particular work tasks she was required to perform. By the yellow line the Appellant required people it had not authorised to keep out of the decombi area. Mr Clark and the other employees of the Appellant exercised personal supervision over the Worker. Even though all the unskilled workers of the Appellant were replaced, the Appellant continued to employ managerial staff and experienced workers who supervised and instructed the workers supplied by the Respondent, so that those new workers could carry out the same tasks, in accordance with the same system, as the replaced workers had previously carried out. In those circumstances, the Appellant was under a duty to workers in the position of the Worker to take reasonable care to provide a safe system of work. The duty arises from the particular relationship between the Appellant and the workers, in a similar way to that in which a company that coordinates the activities of various people working in a common enterprise can have an obligation to set a safe system of work even if the people involved are not its employees (Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at [29], 31), or an occupier with control over premises can have an obligation to provide warnings in relation to dangerous features of those premises (Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 at [47]–[53]). [emphasis added]

In Toll Transport Pty Ltd v Haskins [2008] NSWCA 244, the operator of a parcel delivery service was found to owe a duty of care to a self-employed courier who was collecting parcels from a conveyor belt at the depot and suffered an injury. The system of work, which involved couriers negotiating a narrow area cluttered with many parcels, was found to have been unsafe and to have led to the fall. 4.24 There are still, however, differences between a direct employee and the employee of a contractor, as illustrated by the South Australian case of Complete Scaffold v Adelaide Brighton Cement [2001] SASC 199. In that case Adelaide Brighton Cement (ABC) engaged a firm called Allied to do some maintenance on a part of its factory, and an employee of Allied was injured. His injury appears to have been due to the fact that some scaffolding erected by another contracting firm, Complete Scaffolding, was unsafe. Complete were found to be vicariously liable for the injury to the worker, but they claimed that ABC were also liable. Counsel for Complete tried to argue that ABC had a ‘non-delegable’ duty of care in relation to the employees of contractors. It was accepted that ABC had done all that it could to ensure that the scaffolding firm was a competent firm, and that there was no other problem with the premises themselves. The Full Court of the Supreme Court of South Australia rejected the existence of a non-delegable duty. Doyle CJ, giving the judgment for the court, said (at [42]–[44]): [page 211] In my opinion one can at least say that putting aside relationships in which courts have recognised a non-delegable duty of care usually arises, the performance of a task that does not carry an inherent risk of damage to person or property may be discharged by engaging a competent independent contractor: see Northern Sand Blasting at 333 Brennan CJ. In the present case the task that ABC contracted for Scaffolding to perform, the supply and erection of scaffolding as required, was not inherently hazardous. By this

I mean it was not a task that, even when properly performed, carried with it a significant risk of harm. Nor was it a task of such difficulty that the risk of something going wrong was very high … Nor was the task undertaken by Scaffolding one which involved a risk of extreme harm or harm of great magnitude, if something went wrong. To say that is not to minimise the seriousness of injury to a worker, but merely to contrast the erection of scaffolding with, for example, the handling of materials that might result in a destructive explosion. In contracting with Scaffolding, ABC did not undertake a particular responsibility to workers employed by Allied, beyond accepting that ABC should provide a competent contractor to erect scaffold. There was no special vulnerability on the part of workers employed by Allied, beyond the fact that, as is always the case when contractors are involved, the Allied workers relied on the Scaffolding workers to provide and erect scaffold. Nor was the task in question one over which ABC exercised control, beyond such control as arose from the fact that ABC had entered into a contract with Scaffolding … In my opinion, the matters to which I have referred all suggest quite strongly that this is not a case in which the duty of care that ABC owed to Mr Henry was one which required it to ensure that reasonable care was taken by Scaffolding when actually erecting scaffold for the employees of Allied while working on the premises on ABC. Accordingly, I do not accept the submission that ABC is liable on the basis that it owed a duty to ensure that reasonable care was taken in the erecting of scaffolding.

4.25 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 is another example of a case in which there was no duty of care owed to an independent contractor. There an experienced roofer was installing some cladding when he fell from a ladder and was injured. His counsel conceded that he was an independent contractor, and in the circumstances the Court of Appeal upheld the trial judge’s finding that there was no duty of care owed by the company for which he was contracted. There was no on-site supervision, he supplied all his own equipment, and there was no need for overall ‘project coordination’ as referred to in Stevens v Brodribb Sawmilling Co Pty Ltd.22 The occupier was found not liable for an injury to a contractor in Felk Industries Pty Ltd v Mallet [2005] NSWCA 111. There an employee of a specialist firm engaged to service fire extinguishers went onto the premises of Felk to replace a fire extinguisher. He injured his back while lifting the fire extinguisher, access to which had been obstructed by some furniture. But while the court readily

found that his employer, the fire extinguisher company, was liable for failure to provide proper training in lifting [page 212] techniques, the court ruled that the occupier of the premises bore no responsibility in the circumstances, stating (at [18]): The appellant has argued that it was not reasonably foreseeable that an employee of the specialist service company retained to service the extinguisher would lean over the bin to lift the extinguisher off the wall and down in a manner which would expose him to an unreasonable risk of injury. Where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind. The authorities for that proposition are collected in Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 30 (see also 38).

The court held that it was reasonable in the circumstances to expect that the contractor would have been trained by his employer to deal safely with access issues. In J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157, the Court of Appeal held that where JBS had contracted with a trucking firm to transport a load of steel, and the driver employed by the firm, Nichols, slipped while tightening the load at JBS’ premises, there was no duty of care and no breach. JBS had no right of control over the way the experienced driver adjusted the load, and it was reasonable for it to leave such matters up to the driver.23 4.26 The High Court in Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 (Leighton v Fox) reaffirmed that there is no automatic duty owed to contractors or the employees of contractors. In Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406, noted above (see 4.14) in relation to a non-delegable duty owed by the employer, the court held that

the principal contractor, Jigsaw, did not owe a duty of care to Mr Barahona. The court commented (at [91]–[92]): To the extent to which in Rockdale Beef Pty Ltd v Carey at [79]–[84] factors generally relevant to the existence of a duty of care were regarded as sufficient to find a duty of care owed to an independent contractor, see also Tolhurst v Cleary Bros (Bombo) Pty Ltd at [64]–[70], the principles affirmed in Leighton v Fox must prevail. So also as to the criteria suggested in Sydney Water Corporation v Abramovic. In Caltex Refineries (Qld) Pty Ltd v Stavar at [108] Allsop P described the use of an independent contractor by a principal, rather than the direct engagement of employees, as ‘a significant factor in the existence or not of responsibility of the principal arising from the conduct or activity of the subcontractor and its employees or agents.’ The particular significance is illustrated in the observation in Leighton v Fox at [24] that ‘to import a duty akin to

[page 213] that of an employer to retain a degree of control over the [concrete pumping] work would be inconsistent with the relationship between principal and independent contractor.’ There is no question in the present case of Jigsaw owing a duty of care to Mr Barahona because of a need for direction and co-ordination of activities on the site. Mr Barahona was to undertake the discrete task of raising the first floor beam to floor level. So far as the evidence showed this was in no way related to other activities being conducted on the site. This was a task for which Pacific as his employer and Mr Barahona himself were fully competent — it was not suggested to the contrary.

4.27 These comments draw attention to the fact that even though some recent decisions of the New South Wales Court of Appeal slightly broadened the duty to contractors, the courts may now, following the Leighton v Fox decision, be more reluctant to find such a duty. For example, in Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356, where an employee of a cleaning firm, ACS, had been injured by faulty work systems set up by ACS, the court held, following Leighton v Fox, that Westfield as the occupier of the shopping centre where the cleaning was being carried out, did not itself owe a duty of care to the injured worker (see, for example, at [61](b)). Still, Whealy JA acknowledged (at [61](c)) that there would be some cases where

the overall supervisor of work was required to set up safe systems of work: In certain circumstances, the duty to take reasonable care will, however, extend to responsibilities involved in the system of work utilised by the independent contractor. Whether this is so or not will depend on a fact-intensive investigation to determine whether there is the necessary interdependence of the activities carried out in the enterprise under consideration.

An example of a case where a duty to a contractor’s employee was held to exist is Clarence Valley Council v Macpherson [2011] NSWCA 422, where a worker had been placed by a labour hire firm (his employer) to work with the council, and in doing his work (clearing vegetation) was supervised by council employees, and using defective equipment supplied by the council.24 In Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140 the question arose as to whether Waco, who had engaged a contractor, BTSS, to do some work, owed a duty of care to BTSS’ employee, Mr Perigo. In the slightly unusual circumstances of the case, it was held that they did. While normally the contractor, BTSS, would have been allowed to determine safe methods of working for its employees, Waco had actually decided to arrange its own supervisor to oversee the scaffolding work, because there had already been a prior incident where a BTSS employee had been killed. By taking over control, Waco were held to have assumed a duty of care to the worker being directed. [page 214] In AF Concrete Pty Ltd v Ryan [2014] NSWCA 346, Mr Ryan, an employee of Reliance Pools Pty Ltd, was working on a job where AF Concrete were supplying the concrete, and was injured when an AF employee blew a lump of concrete out of a pipe with compressed air. The court held that Mr Ryan’s employer was not liable for the carelessness of the AF employee. AF was a separately

engaged independent contractor. While Mr Ryan himself had noticed a problem with the way the procedure was being carried out, he had done all that he could by drawing the problem to the attention of AF, and Reliance was not at fault because it was not obliged to do any more.25 In Victorian Workcover Authority v Australian Steel Company (Operations) Pty Ltd [2015] VSC 58, Kaye JA was considering whether a duty of care was owed by the defendant steel company, where a cleaner, Mr Azzopardi, was injured while working on the premises of the steel plant, under the supervision of his employer, a company called Baringold. Following Leighton (noted at 4.26 above), his Honour found that even though the trolley being used by the worker had been supplied by the factory owner, other aspects of the work were controlled by his employer, Baringold, and that the occupier of the premises did not owe a duty of care to Mr Azzopardi in the circumstances.26 The case of Central Darling Shire Council v Greeney [2015] NSWCA 51 concerned a plaintiff road worker who was sent by his employer to do work for the defendant, the council. The council argued that as a principal it was not liable for the harm caused to the plaintiff. The court found that the trial judge was correct in holding the council was liable, because the plaintiff complained to the principal of the machinery’s defect before it caused his injury. The council’s employee gave a direction to the plaintiff worker that involved this defect, creating the risk that led to the injury. The court ultimately found that the council had the relevant control over the plaintiff, the plaintiff was vulnerable because he would lose his job if refused to obey their directions, the risk of injury was foreseeable and the council would gain a financial advantage as the method used would save time.27 4.28 If an employer is liable for personal injury to an employee, does it also have a duty to avoid damage to an employee’s property? Previously it has been held that there was no such liability: see

Deyong v Shenburn [1946] KB 227 (failing to provide system to protect employee’s clothing); Edwards v West Herts Group Hospital Management Committee [1957] 1 All ER 541 (theft of property from a room left unlocked at employer’s instructions). But it is not clear in principle why, if an employer is in breach of a personal duty of care, recovery for damage to property might not be possible.28 However, as we are concerned with safety issues rather than property loss, a discussion of this issue is beyond the scope of this book. [page 215] Psychological injury 4.29 While the above principles apply in the case of bodily injury or physical disease, there are some complicating factors that arise when it is claimed that psychological harm has been caused as a result of an employer’s negligence.29 4.30 In dealing with the question of a duty of care owed to avoid psychological harm in the workplace, we need to distinguish between claims made by employees, and claims made by others such as independent contractors. That is because the Civil Liability Act 2002 (NSW) (CLA) creates special rules for the establishment of a duty of care in these cases for non-employees. While most of the impact of the CLA comes in the areas of breach and damages, and hence is discussed in Chapter 5, because these rules relate to the question of ‘duty of care’ it is appropriate to note them in this chapter. For the purposes of this chapter we will describe those workers whose claim is not governed by the provisions of the CLA as ‘employees’, and those whose claims are subject to that Act as ‘non-employees’.30 Psychological injury claim by employees

4.31 It is not difficult to understand why it took some time for the courts to recognise the validity of claims for ‘nervous shock’ (as it is sometimes called), and why even today there are limits imposed on these claims. A claim that someone has suffered psychological injury is not as immediately verifiable as a claim that someone has broken their arm; the evidence cannot simply be ‘read off’ an x-ray, but must be collected by a process of discussion and investigation in which at least some of the evidence consists of the self-reporting of the plaintiff. The danger of false claims is clear. And when the question of causation is considered, there may always be some doubt as to whether a particular incident or course of behaviour did or did not lead to the condition that is alleged to exist. Gummow and Kirby JJ referred to this problem in their review of the law in Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35 at 178: Initially, in 1888, the Judicial Committee of the Privy Council in Victorian Railways Commissioners v Coultas1 held that nervous shock, unaccompanied by physical injury, was too remote a consequence of a negligent accident to sound in damages. To permit recovery, their Lordships said,2 would have the result that ‘[t]he difficulty which now often exists in case of alleged physical injuries of determining whether

[page 216] they were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims’. 1.

(1888) 13 App Cas 222 at 225–6.

2.

(1888) 13 App Cas 222 at 226.

Over the years, however, the development of fields of knowledge dealing with human behaviour has led to the stage where the courts will acknowledge such claims in some cases. It is important to distinguish two situations: one where an employee directly suffers a bodily injury from which psychological injury then flows; and the other where there may be no direct

physical impact on the employee, but it is alleged that psychological injury has been caused by some action of the employer. Within that second category, there are cases where the psychological impact is ‘sudden’, resulting from a specific incident (the most common of which is the witnessing or other perception of a severe physical injury to someone else); and second, cases where the psychological harm is said to result from a long course of conduct by the defendant. Psychological injury flowing from physical injury 4.32 In the first type of case, where a psychological condition of some sort flows from a physical injury, in general the only question that will need to be considered is: was there a foreseeable possibility of psychological injury? As Windeyer J said in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402 (Pusey): Liability for nervous shock depends on foreseeability of nervous shock.

However, so long as there was a ‘real chance’ of this type of injury, then the injured person ought to be able to recover for the full extent of the injury that has actually occurred.31 In Telstra Corporation Ltd v Smith (1998) Aust Torts Rep ¶81-487, for example, Mr Smith suffered brain damage as a result of a suicide attempt, which he claimed was caused by the psychological effects of a physical injury sustained by falling into a manhole left open by Telstra employees. The New South Wales Court of Appeal refused to overturn a finding in Mr Smith’s favour made by the trial judge. The court held that once Telstra had been found to be in breach of their duty of care to avoid foreseeable injury to Mr Smith, it was liable for all the consequences that directly flowed from the injury. In doing so the Court of Appeal applied the ‘eggshell skull’ rule, to the effect that once some foreseeable damage has occurred, a defendant may be liable for all of the causally connected damage, even if some of it was not foreseeable: see Chapter 5 at 5.56 for

more discussion. The court does not appear to have separately addressed the issue whether psychological injury of some sort was foreseeable; perhaps in the case of a serious bodily injury these days the possibility of psychological injury as a result is [page 217] so clear that it ‘goes without saying’. Nevertheless, the authority of Pusey and Jaensch seems to still require that the foreseeability of some sort of psychological injury is an element of recovery for this head of damage in Australia.32 Similarly, in Shorey v PT Ltd [2003] HCA 27, a complex psychological condition had resulted from a simple fall; but where some causal connection could be shown to the fall, then the psychological consequences could be recovered for. Psychological injury not caused by physical injury 4.33 The situation is slightly more complicated when there is no physical injury suffered by the plaintiff. Here the psychological damage may be caused by either a course of conduct engaged in over a period of time by an employer (such as exposing the employee to stressful situations generally), or by the employee being exposed to trauma by witnessing a (usually dramatic) injury to someone else. It is an open question whether these two types of cases are to be treated differently. As we will see below, however, ‘course of conduct’ cases have commonly succeeded in recent years where the claimant is an employee.33 Special rules have developed over the years where the alleged psychological injury has been caused by witnessing or becoming aware of physical injury to, or death of, another person. Early decisions of the courts ruled that, in general, there would be no recovery for this kind of injury. Perhaps one of the most

influential decisions was that of the Privy Council on appeal from Victoria in Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222, in which recovery was denied where a miscarriage was caused by careless operation of railway level crossing gates. In Chester v Council of Municipality of Waverley (1939) 62 CLR 1, the majority of the High Court denied recovery for nervous shock where the mother of a child who had gone missing witnessed a water-filled trench being dragged and the body of her son being pulled out. That case included a strong dissent from Evatt J arguing in favour of recovery, a dissent that was taken up in later years by other courts. While as late as 1943, the House of Lords in Bourhill v Young [1943] AC 92 was still denying recovery for nervous shock, decisions from then on often distinguished the earlier cases and eventually overruled them. In the High Court, the decision in Jaensch v Coffey (1984) 155 CLR 549 finally settled the view that lower courts had been applying for some years — that recovery for nervous shock was possible. 4.34 However, as noted previously (see 4.31), because there are obvious dangers in ‘opening the floodgates’ to claims for psychological injury, especially where [page 218] unrelated to an actual physical injury, over the years the courts developed a number of what might be called ‘control mechanisms’ to limit possible claims. The statement of these mechanisms varies from time to time, but some that need to be considered include: whether the claimant has suffered a ‘genuine psychological illness’ as opposed to a ‘mere grief reaction’; the particular relationship between the claimant and the injured or dead person; the way in which the injury or death has come to the attention

of the claimant — that is, whether it was directly perceived or whether it was relayed through someone else; whether the psychological injury can be described as a ‘sudden shock’ or has evolved over a period of time; whether or not the claimant was themselves in ‘the zone of physical danger’ at the time the injury occurred to the other person; in some cases a claimant who is acting as a ‘rescuer’ in the aftermath of an accident may be given special consideration; and in general, whether or not it was foreseeable that the incident would result in such a psychological reaction by the claimant. In particular we may include here the question whether or not what has happened would cause such a reaction in someone of ‘normal fortitude’. In some of these areas the previous law has now been changed by the landmark decision of the High Court in Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35 (Tame (2002)).34 The previous law is mentioned below to allow proper understanding of the current situation. Genuine psychological illness 4.35 An initial criterion which must be established is that there must be a ‘recognisable psychiatric illness’ to form the basis for compensation.35 Special relationship 4.36 In most cases there must be some sort of special relationship between the injured person and the plaintiff for a duty of care to exist that extends to the plaintiff. Witnessing the death of a complete stranger, for example, may not lead to recovery. This is probably best viewed as a question of foreseeability; it

will normally not be foreseeable that someone will suffer a severe psychological injury through witnessing the death of a complete stranger. However, a relationship of parent and child, [page 219] for example, will usually create such foreseeability. So in the decision in Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33, Gleeson CJ commented (at [10]): The relationship of parent and child is important in two respects. First, it goes to the foreseeability of injury. That a child of the age of the various appellants might suffer psychiatric injury in consequence of learning, on the day, of a terrible and fatal injury to his or her father, is not beyond the ‘common experience of mankind’.1 1.

Cf Chester v Waverley Corporation (1939) 62 CLR 1 at 10 per Latham CJ.

In that case it seems that McHugh J would have been prepared to extend the boundaries of the relevant relationship even further. His Honour commented (at [27]): An employer owes a duty to take care to protect from psychiatric harm all those persons that it knows or ought to know are in a close and loving relationship with its employee.36

Consistently with that approach, Nettle J in the recent High Court decision in King v Philcox [2015] HCA 19 held that a duty was owed at common law in relation to mental harm caused by injury to a sibling: see [88]. 4.37 In Australia it seems that the duty can also be said to generally extend to a fellow worker. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 (Pusey) establishes that a worker may recover compensation for ‘nervous shock’ as a result of a workplace accident. There the worker involved had witnessed the horrific aftermath of the electrocution of two fellow employees. In New South Wales there are currently some unresolved

questions arising from the Workers Compensation Act 1987 (NSW) (WCA 1987) s 151AD, which provides: 151AD No damages for nervous shock injury to non-workers (1) No damages for pure mental harm may be awarded against an employer liable to pay compensation under this Act in respect of the death of or injury to a worker if the pure mental harm arises wholly or partly from mental or nervous shock in connection with the death of or injury to the worker unless the pure mental harm is a work injury (that is, an injury to the worker or to another worker) Note. This section prevents a claim for damages for nervous shock when the nervous shock is not a work injury. It prevents claims for damages by relatives of an injured or deceased worker because their injuries are not work injuries. (2) In this section, pure mental harm has the same meaning as in Part 3 of the Civil Liability Act 2002.

The full effects of this provision will not be known until we see how the courts interpret the provision. The effects appear to be as explained in the following paragraphs. [page 220] ‘Pure mental harm’ is defined s 27 of the CLA as ‘impairment of a person’s mental condition’ that is not consequential upon a ‘personal injury’ of a non-mental kind. The clear intention seems to be to cut off claims such as those that succeeded in Gifford. Normally, claims of this sort would only succeed where there had been a sudden and horrific death of the worker. Apparently, the bereaved family cannot recover for a genuine psychological condition that may have resulted. However, it is possible that the provision fails to achieve this aim. It only operates to preclude damages for shock ‘in respect of the death or injury to a worker’. But it must be noted that the previous decision in Kimberly-Clark Australia Pty Ltd v Thompson

[2006] NSWCA 264 explicitly decides that a claim for damages by the wife of an injured worker was not ‘in respect of’ the death or injury of the worker’ under the WCA 1987. Still, because the New South Wales Parliament seems to have made its intention clear in the ‘Note’ to the provision, a future court will have to wrestle with these apparently conflicting considerations. It should be noted, however, that in fact the new provision is much clearer than the former s 151P (now repealed)37 in allowing a claim for nervous shock made by a fellow employee: it recognises in the last clause of s 151AD(1) that ‘pure mental harm’ may be a ‘work injury’. The final bracketed words in the clause are odd in that they include a reference to harm ‘to the worker’. The logic of the sentence is that a claim for ‘pure mental harm’ cannot be made if it arises ‘wholly or partly from mental or nervous shock in connection with the death of or injury to the worker,’ except if it is a ‘work injury’. But in such a case, it cannot be an injury to ‘the worker’ concerned because, if they are dead, they cannot claim pure mental harm; and if they are injured physically, then it would not be a claim for ‘pure’ mental harm. If they are injured only mentally, then it seems bizarre to postulate a further mental injury flowing from a previous mental injury. Nevertheless, the aim of the provision as a whole seems reasonably clear: to only allow recovery for ‘pure mental harm’ (or ‘nervous shock’) occasioned as the result of a workplace injury to W, to W’s fellow workers, and not to W’s friends or relatives outside the workplace. 4.38 One case raises an interesting question: what happens if the person claiming for psychological harm from the death of a fellow worker is also a close relative of the worker? In Martin v Teeling [2010] NSWSC 814, Mr Gary Martin was the father of a fellow worker, Corey Martin, who was dragged into a compacting machine and killed. The judge had to rule on a preliminary action to strike out a common law claim made by Gary Martin, and said

she would assume that he witnessed the accident or its immediate aftermath. The common law claim was resisted by the employer on the basis that it was governed by the provisions of the WCA 1987, under which there is a preliminary ‘hurdle’ for recovery of 15% ‘impairment’ (for more discussion of the limits imposed on common law actions by the WCA 1987, see 5.87 ff). The evidence from a psychologist was that there was only 8% ‘impairment’. The father claimed, however, that he was not suing [page 221] as a ‘worker’, but as the father of the injured worker, and hence the provisions of the WCA 1987 did not limit his claim. In many ways this is an almost insoluble dilemma — the plaintiff fell precisely into two separate categories, with differing entitlements, and there seemed to be no overarching rule to allow a choice between the categories. In the end, however, Harrison AsJ ruled in favour of the father’s action being allowed to proceed. Her Honour referred to the fact that the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (see 4.40 below) extended the common law by specifically allowing actions by close relatives. She held that in effect Gary Martin had ‘two independent claims against his employer’ (at [33]) (as a fellow worker and as a father), and that while one had been limited the other had not been specifically affected. (Note that this decision would not be affected by the new s 151AD, as the action by the father would fall into the category of a ‘work injury’. But the question would still remain as to which statutory regime governing the award of damages should apply.) Communication of news? 4.39

In addition to a special relationship, previously there were

also specific rules that dealt with the way in which the news of the other person’s trauma had been communicated. Simply ‘hearing about’ an accident after the event was, it was held, not enough on which to base a claim: see especially the limits drawn in the United Kingdom by the House of Lords in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. However, there were doubts for many years as to whether Australian courts should follow Alcock: see Coates & Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1, especially Kirby P at 10D; Knight v Pedersen [1999] NSWCA 33338 and Hancock v Wallace [2001] QCA 227 where the Queensland Court of Appeal allowed recovery by a father who had been told of his son’s horrific death in a road accident.39 The High Court has now settled the issue by holding in Tame (2002) (see 4.34) that direct perception of the event occasioning shock is not an essential prerequisite for recovery. Gleeson CJ, for example, commented (at [18]): I agree with Gummow and Kirby JJ that the common law of Australia should not, and does not, limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock, or to cases where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath.40

In Tame (2002) itself, damages were awarded to parents who were told over the telephone, some months after the actual event, of the death of their son at a remote property in Western Australia where he had been working. [page 222] 4.40 At this point it is worth noting that in New South Wales a somewhat obscure statutory provision still exists that in some cases (in the days when the common law had a ‘direct perception’ requirement) meant that the old rules about ‘direct perception’ were not needed for compensation to be awarded. This provision is s 4(1) of the rather opaquely named Law Reform (Miscellaneous

Provisions) Act 1944 (NSW) (the LRMPA). Essentially this provision was inserted to allow a limited recovery for nervous shock to close family members at a time when the common law had not developed to allow such recovery. Section 4 provides a separate statutory ground of recovery, but this is limited to parents, spouses, siblings and children. However, there is a further limit which applies to anyone but parents or spouses, which is that compensation only applies if the other family members directly witnessed the event. This provision was considered by the High Court in Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33. In that case a wife and three children of a deceased worker sued the employer for damages for nervous shock occasioned by the news of his death at work. The wife’s claim would have succeeded under LRMPA s 4 (as noted above, as a spouse she did not need to be present at the event) except for the fact that the medical evidence did not establish that she had a ‘genuine psychological injury’ as opposed to grief.41 The children’s claim, however, was rejected even before the medical evidence had been considered because they did not fall within the terms of s 4, as they had not witnessed the event. One key question in the case was whether s 4 had the effect of exhaustively defining the situations in which common law damages could be recovered for nervous shock. If so, then the children could not claim. If not, then the further issue arose as to whether the common law rules apart from s 4 would allow recovery. The High Court held unanimously that LRMPA s 4 did not limit the possible damages that could be recovered; rather, it was intended to extend the situations in which damages were recoverable at a time when common law recovery was more confined. As such, the children’s claim was not barred by s 4. On the issue of the applicable common law rules, the court held that following Tame (2002) the requirement of direct perception was not necessary, and hence that the children’s claim should go back to the trial court for further consideration of the medical evidence.

4.41 The current legal status of LRMPA s 4 is slightly unusual. LRMPA Pt 3 was generally repealed by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Sch 3, as from 6 December 2002. However, the Civil Liability Act 2002 (NSW) Sch 1 s 11 still provides as follows: 11 Law Reform (Miscellaneous Provisions) Act 1944 Part 3 of the Law Reform (Miscellaneous Provisions) Act 1944 continues to apply despite its repeal to and in respect of civil liability that is excluded from the operation of Part 3 of this Act by section 3B.

[page 223] We will discuss the unfortunately complex relationship between the provisions of the Civil Liability Act 2002 (NSW) (CLA 2002 (NSW)) and common law claims for workplace injury in the next chapter (see 5.94 ff), but for the moment you should note that s 3B(1)(f) effectively excludes from the scope of the CLA 2002 (NSW) civil liability arising from a claim for damages by a worker. As a result it seems that LRMPA s 4 will continue to apply to such claims, rather than s 30 of the CLA 2002 (NSW). There are few cases where this will be any practical consequence. On the current state of the law s 4 appears to give no benefit to plaintiffs suing in negligence above and beyond the rules of the common law as now explained by the High Court in Tame (2002) and Gifford.42 However, the recent decision in State of New South Wales v McMaster [2015] NSWCA 228 holds that s 4 may apply, not only in cases of negligence, but also where the ‘primary’ victim has been injured as the result of a deliberate act of assault or battery — see [10], [249] per Beazley P: ‘s 4 is not confined to a case of negligence.’ While in the McMaster case the relevant injuries to the ‘primary’ victim were found not to be wrongful, so that s 4 did not apply, the decision leaves open a possible action by relatives of those who are the victims of intentional harm.43

Need for ‘sudden shock’? 4.42 We will now consider the more general requirements for nervous shock. The terminology of ‘nervous shock’ has led the courts on a number of occasions in the past to say that only a ‘sudden assault’ on the nervous system will qualify a claimant for recovery. In New South Wales v Seedsman [2000] NSWCA 119, however, Mason P held that the requirement of a ‘sudden shock’ did not need to be established where the duty of care was owed by an employer to an employee. In that case Mrs Seedsman was able to recover damages from the New South Wales Police Force by way of compensation for a psychiatric condition she suffered after working as a trainee policewoman and being exposed on a number of occasions to horrific scenes of child abuse, without proper training or counselling to deal with those memories. Mason P commented (at [164]): In my judgment in Morgan v Tame I explain why, in my opinion, the common law of Australia generally requires proof of a sudden shock or affront to the senses, before admitting a claim for the negligent infliction of pure psychiatric illness. [However,] the requirement that there be a ‘shock’ in the sense of a sudden sensation is not applicable to independent duties like employers’ duties. [emphasis added]

In so holding the court followed the decision of the United Kingdom High Court in Walker v Northumberland County Council [1995] 1 All ER 737, where a social worker employed by the council was able to recover damages for a nervous breakdown caused [page 224] by stress and overwork. The decision of the House of Lords in Waters v Commissioner of Police for the Metropolis [2000] UKHL 50 also affirms the availability of a claim for a psychological injury caused to a police officer by the failure of the police force to deal

with a course of harassing behaviour engaged in by fellow officers.44 4.43 The fact that a ‘sudden shock’ is not required in order to make a claim in an employment context appears sensible. The connection between the conditions of employment and the development of a gradual psychological condition, and the high duty of care owed by an employer, seem to support the idea that such an action is reasonable.45 The High Court in Tame (2002) (see 4.34) has now made it clear that there is no separate requirement for a ‘sudden shock’, whether in the employment area or elsewhere.46 Whether or not a sudden shock has occurred may be relevant to the overall issue of foreseeability, but is not a separate requirement. In ‘zone of danger’? 4.44 Decisions in the United Kingdom have drawn a distinction between so-called ‘primary’ and ‘secondary’ victims of an incident involving injury to a person. A claimant who suffers nervous shock as a result of witnessing the injury and who was themselves in the ‘zone of danger’, in the sense that they might also have received injury, would be classified as a ‘primary’ victim, and others who heard about the incident or witnessed it from a distance would be ‘secondary’ victims. Secondary victims, according to White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1, could only recover if they were close relatives or friends, present at the injury or the ‘immediate aftermath’, and had ‘directly’ witnessed the events. This category of ‘control mechanism’ appears to have been developed to allow United Kingdom courts to cope with the many claims for compensation for ‘nervous shock’ [page 225]

flowing from the disastrous collapse of a football stadium at Hillsborough in 1989, when 95 people were killed. This categorisation has many problems; to date, Australian courts have not adopted it and it is probably unlikely to be adopted in the future. 4.45 Still, even in Australia, overall ‘involvement’ in the incident may support a claim for recovery of damages, as in FAI General Insurance v Lucre [2000] NSWCA 346. There a truck driver went to the assistance of the driver of a small car that had, through no fault of the truck driver, collided with the truck. The driver of the car died. The truck driver subsequently suffered posttraumatic stress and severe guilt, despite the fact that he had not been careless in his driving in any way. The Court of Appeal upheld his claim for nervous shock due to the ‘immediacy of his involvement in the accident that caused the death’: at [25]. The fact that the truck driver was the unwitting cause of the injury meant that he had a strong case for compensation. Rescuers 4.46 Another category of case that is relevant to this area is the situation of a ‘rescuer’ who has acted out of a desire to help someone at the scene of an accident and has then suffered some psychological injury. Again, an example can be found in FAI General Insurance v Lucre [2000] NSWCA 346. In the course of his judgment in that case, Mason P suggested that the legal category of ‘rescuer’ might be relevant: at [24]. Particularly in an employment case, the category might well be used to support an award of damages.47 For an example of a case outside the employment area where it was foreseeable that a ‘rescuer’ would suffer psychological injury, see Cook v R & M Reurich Holdings Pty Ltd [2004] NSWCA 268. Foreseeability and ‘normal fortitude’

4.47 Foreseeability of harm is a necessary precondition for the existence of any duty. In this context it seems to be accepted that, in most cases of serious injury, it is foreseeable that someone in a close relationship to the injured person (or satisfying the other criteria noted above) might suffer psychological injury. In the past the courts have sometimes added to the general rule of foreseeability, a specific question as to whether injury in the kind of circumstances of the case was foreseeable to someone of ‘normal fortitude’. That is, if someone is extremely ‘highly strung’ then there may be no initial duty to avoid behaving in certain ways, because no reasonable person could foresee that a normal person would respond in such a way. [page 226] This was held to be relevant by the New South Wales Court of Appeal in Morgan v Tame [2000] NSWCA 121. In that case Ms Tame alleged that she suffered nervous shock from discovering that a clerical error in police files attributed a high alcohol content to her blood, when in fact she had not been drinking. When the error was pointed out the police immediately corrected it, but Ms Tame claimed that the incident triggered a psychological condition. The Court of Appeal (Spigelman CJ, Mason P and Handley JA) found that there was no duty, as such an injury was not foreseeable from a minor clerical error. 4.48 However, on appeal to the High Court in Tame (2002) (see 4.34) a majority of the court ruled that there was no separate ‘normal fortitude’ test. Gummow and Kirby JJ, for example, put it this way (at 201): [T]he concept of ‘normal fortitude’ should not distract attention from the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.1 It may be that, in some circumstances, the risk of a recognisable psychiatric illness to a person who falls outside the notion

of ‘normal fortitude’ is nonetheless not far-fetched or fanciful. If that is so, it is then for the tribunal of fact to determine what a reasonable person would do by way of response to the risk, in the manner indicated in Wyong Shire Council v Shirt.2 Where the plaintiff’s response to the defendant’s conduct is so extreme or idiosyncratic as to render the risk of that response far-fetched or fanciful, the law does not require the defendant to guard against it.48 1.

See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48.

2.

(1980) 146 CLR 40 at 47–8.

The court nevertheless dismissed Mrs Tame’s appeal, implying that her reaction to the situation went beyond what would be regarded as reasonably foreseeable. A similar approach may be seen in Cranston v Consolidated Meat Group Pty Ltd [2008] QSC 41 where a claim that a psychological condition arose from an angry altercation between the plaintiff and another employee was rejected, on the basis that such a reaction was not reasonably foreseeable. Relevance of self-harm by victim of physical injury 4.49 Finally, on the issue of psychiatric injury to an observer caused by someone else’s physical injury, recent cases have raised the question whether the observer can claim damages if the physically injured person was responsible for their own injury. The policy reason for suggesting that such a claim should not be maintained seems to stem in part from the possibility (however remote it might seem) that someone might commit suicide in front of a close relative with the hope that the relative might then be able to recover damages under an insurance policy for psychological injury. [page 227] Whatever the policy reasons, the suggestion that there is such a rule is usually grounded in obiter comments made by Deane J, who

delivered the main judgment, in Jaensch v Coffey (1984) 155 CLR 549 at 604. This remark has been followed by several trial judges in Australia, and was adopted and applied by a judge in the Queen’s Bench Division in the United Kingdom, Cazalet J, in Greatorex v Greatorex [2000] 1 WLR 1970. In that case a young man was involved in a serious road accident, and his father, who was a fireman, happened to be on the fire truck that arrived to extract him from the wreckage. As the son was not insured, the father sued the English equivalent of the Nominal Defendant for damages incurred by way of the shock at seeing his son injured. The accident was the son’s fault, and so the question was whether the son owed the father a duty not to injure himself in a way that would cause this sort of damage. The judge held that on the basis of the comments of Deane J in Jaensch there was no duty. 4.50 An opposite result was reached, however, in the New South Wales Court of Appeal decision in FAI General Insurance v Lucre [2000] NSWCA 346: see above at 4.45. The Court of Appeal effectively held that the comment by Deane J that recovery was denied where the psychological injury flowed from the deceased’s actions was not binding; it was an obiter remark, not essential to the reasoning in the Jaensch case (since in that case the injuries were not the result of the deceased’s actions), and it was not supported by a majority of the High Court. Mason P commented (at [12]–[13]): I do not think that the principled exposition and development of the common law can sustain drawing the line represented by the immediate victim exclusion. The mere fact that the death, injury or peril is that of the defendant (or the defendant’s deceased) cannot justify invariable rejection of a claim for damages for negligently inflicted psychiatric injury.

Different rules for employment situation? 4.51 After this review of the general rules for recovery in this area, we may ask: are these rules generally applicable to the employment situation, or will other considerations apply?

In one of the ‘Hillsborough stadium’ cases in the House of Lords, White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1, police officers’ claims for the ongoing effects of participating in the rescue operation were rejected. Some of the claims were made on the basis of the duty of care owed by employers to their employees. However, the majority of the House of Lords ruled that there were no special considerations in the employment relationship, and that the employees could not succeed where others had failed. The House of Lords established a number of ‘limiting rules’ for recovery by witnesses or relatives, and Lord Steyn commented (at 36): The rules to be applied when an employee brings an action against his employer for harm suffered at the workplace are the rules of tort. One is therefore thrown back

[page 228] to the ordinary rules of the law of tort which contain restrictions on the recovery of compensation for psychiatric harm.49

On the other hand, the decision in Mount Isa Mines Ltd v Pusey (see above 4.32), seems to strongly suggest that in Australia special rules do apply in the workplace, in the sense that the courts may be ready to recognise the special relationship of employer and employee as creating a duty not to cause psychological injury. There has been no decision of the High Court overruling Pusey, and it appears likely that the High Court today would decline to follow the House of Lords on this point.50 Indeed, in Tame (2002) (see 4.34) McHugh J seems to have come close to this point in the following comments (at [140]): The relationship of employee and employer, for example, requires the employer to take reasonable care to avoid injury to the employee. The duty is governed by the same rules and has the same content, irrespective of the kind of injury or damage that can reasonably be foreseen. In so far as White v Chief Constable of South Yorkshire Police1 decides the contrary, it does not represent the law of Australia.51 1.

[1999] 2 AC 455.

4.52 In addition, even in the United Kingdom it seems to have been accepted that the rules governing liability for witnessing a horrific event are not the same as the rules that govern psychiatric injury occasioned by an employee as a result of a course of stress in the workplace. In the Court of Appeal decision in Hatton v Sutherland [2002] EWCA Civ 76; [2002] 2 All ER 1 the court ruled (at [22], [25]): There are, therefore, no special control mechanisms applying to claims for psychiatric (or physical) injury or illness arising from the stress of doing the work which the employee is required to do … All of this points to there being a single test: whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned.52

[page 229] While it is lengthy, the following summary of the law from the judgment of Hale LJ (at [43]) is worth reading carefully, as it seems to represent the thinking of common law courts on this area at the moment (in Australia as well as in the United Kingdom).53 From the above discussion, the following practical propositions emerge: (1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (see [22]). The ordinary principles of employer’s liability apply (see [20]). (2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (see [23]): this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) (see [25]). (3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (see [23]). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability (see [29]). (4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health (see [24]).

(5) Factors likely to be relevant in answering the threshold question include: (a) The nature and extent of the work done by the employee (see [26]). Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department? (b) Signs from the employee of impending harm to health (see [27], [28]). Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others? (6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching inquiries of the employee or seek permission to make further inquiries of his medical advisers (see [29]). (7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it (see [31]). (8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the

[page 230] risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (see [32]). (9) The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties (see [33]). (10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (see [34]). (11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty (see [17], [33]). (12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job (see [34]). (13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of

care (see [33]). (14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm (see [35]). (15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (see [36], [39]). (16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event (see [42]).54

In the appeal from this decision to the House of Lords, Barber v Somerset County Council [2004] 2 All ER 385; [2004] UKHL 13 (Barber), the House of Lords approved the discussion of the law given by Hale LJ in the earlier decision,55 although by majority finding that the Court of Appeal should not have overturned the trial judge’s findings that the school authorities in that case breached their duty of care to the teacher concerned.56 4.53 The only area where it may be necessary to qualify the principles expressed by Hale LJ in Hatton is at point (3), where Hale LJ says that an employer is generally entitled [page 231] to assume that an employee can cope unless the employer knows of a ‘particular’ vulnerability in the employee. Lord Walker in Barber (with whose judgment Lords Bingham and Steyn agreed) seemed to suggest (at [65]) that a preferable formulation would be that used by Swanwick J in the previous decision of Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783: [T]he overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know.

The difference in emphasis seems to lie in the suggestion that

the employer needs to be slightly more ‘proactive’ in considering the possibility of stress-induced illness and in monitoring employees. This distinction may lie behind the change in result in the House of Lords from that reached by the Court of Appeal. Mr Barber had previously approached his employer to let them know he was suffering from a problem, but had then tried to ‘soldier on’. The Court of Appeal considered that the school was not in breach of its duty by not doing anything more until Mr Barber got back to them; the majority of the House of Lords thought that once on notice that there was a possible problem the school ought to have been more active in following up Mr Barber to see whether there was still a problem. The more ‘proactive’ approach recommended by the House of Lords would seem to align with the duty under the criminal law to conduct a regular ‘risk assessment’.57 4.54 A number of recent cases have readily accepted that an employer owes a duty of care to an employee to avoid causing psychological injury: see Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275, especially at [16]–[18]; New South Wales v Coffey [2002] NSWCA 361; New South Wales v Napier [2002] NSWCA 402 and Faucett v St George Bank Ltd [2003] NSWCA 43. In the last-mentioned case a bank teller suffered an ongoing psychological condition as a result of being threatened during a bank holdup. The Court of Appeal relied on Tame (2002) and other recent cases such as Mannall v New South Wales [2001] NSWCA 327 in accepting that a duty of care was clearly owed in the circumstances, bank robberies being unfortunately foreseeable. For a case where foreseeability was not established, the court finding that it was not foreseeable that additional duties given to a librarian would cause a psychological illness, see Wylie v South Metropolitan College of TAFE [2003] WASCA 34. In Ilosfai v Excel Technik Pty Ltd [2003] QSC 275, the court found that while some danger of psychological trauma was foreseeable from a situation where the plaintiff was exposed to violent criminal behaviour

(while installing a security system in a prison), the company concerned had behaved reasonably in that there were no other precautions that could realistically have been taken to prevent the incident in question. 4.55 In O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7, the Court of Appeal by majority rejected a claim for psychological injury in the nature of a [page 232] depressive condition which had been caused by the plaintiff being unjustly placed under suspicion of dishonesty. While all members of the court recognised that the plaintiff had been treated very badly by his employer, the majority (Spigelman CJ and Sheller JA) concluded that it had not been shown that a recognised psychological injury (as opposed to ‘mere’ workplace stress) would follow from the treatment. This was despite the fact that shortly before the harsh treatment the plaintiff had supplied his employer with a medical certificate indicating that he was suffering from a recognised psychological problem. McColl JA, dissenting, held that since the medical certificate had been provided the employer was at notice of some potential problems; and the fact that the precise nature of the ultimate condition was not foreseeable was not relevant: see [108] where the authorities to this effect are noted. With respect, her Honour’s dissent seems quite compelling. 4.56 It is important to weigh up the effect in this area of the High Court decision in Koehler v Cerebos (Aust) Ltd [2005] HCA 15 (Koehler). Ms Koehler was a sales representative for Cerebos. She was very experienced, but had to be laid off when there was a downturn in business. She was offered and accepted a part-time position of three days a week. She was given a list of businesses

she had to visit in those three days. As soon as she started the job, and regularly thereafter, she told Cerebos that the area she was expected to cover was too great for the time for which she was employed. Nevertheless, as a conscientious employee she ‘soldiered on’. Eventually she suffered a nervous breakdown caused by stress. Her claim against her employer was accepted by the trial judge, but overturned on appeal. A five-member bench of the High Court found against her (McHugh, Gummow, Hayne and Heydon JJ in one judgment, Callinan J concurring). The formal basis for the decision was on the question of breach of duty. The court said that it was not foreseeable in the circumstances that Ms Koehler, who seemed competent and able to do her job, would suffer a psychological injury from stress. With respect, this seems questionable. It surely is at least foreseeable as a real risk that stress of the sort imposed in this situation might lead to some such outcome. The plaintiff had alerted her employers to the fact that she was overworked. However, the High Court held that effectively she had agreed to this work, and it was up to her to do it. In the course of the judgment their Honours also make a number of comments about the nature of the duty of care in employment cases: at [21]–[24]. Their Honours stress the need to take into consideration the obligations imposed on both parties by the contract of employment as well as the common law duty of care. They suggest (at [23]) that the decision of the United Kingdom Court of Appeal in Hatton v Sutherland takes the wrong approach, but do not give detailed guidance as to the correct approach. Given that the court acknowledges that the case turns on the question, not of duty of care, but of breach, these comments can probably be regarded as obiter dicta rather than part of the ratio of the case. But this does seem to be a problematic decision. While obviously concerned about opening the ‘floodgates’ of work-related stress claims, the court really does not make a convincing argument as to why the employer should

[page 233] not have at least foreseen as a general concern that the known heavy workload might result in an actual psychological condition.58 4.57 In New South Wales v Mannall [2005] NSWCA 367, a decision handed down after Koehler, the court upheld a claim for psychological injury caused by workplace stress (including bullying) in circumstances where the stress was caused by the behaviour of a supervisor, who was found by the trial judge to have been aware that what the plaintiff was feeling was more than mere ‘over-work’, and to have been specifically aware that she might possibly be suffering from a psychiatric illness as a result of the stress.59 4.58 In Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377, however, another case of a psychological condition arising from very serious bullying, the claim in negligence against the employer, ISS, was rejected on the basis that the senior management of the organisation, while made aware of some bullying, were not made aware of the psychological impact this was having. Spigelman CJ commented (at [57]–[58]): The evidence suggesting some form of mental disturbance is twofold. First, the frequency and intensity of crying by Mr Naidu. Secondly, the observations by coworkers of a significant change in Mr Naidu’s personal behaviour over the years. The former is clearly linked to Mr Chaloner’s conduct. The latter may be linked, albeit less clearly. However, it does not appear that Mr Blinkworth knew of either and Mr Paine may have known about crying on one occasion. These signs are of a character which suggest an effect on Mr Naidu’s mind of an adverse character. However, what is required is foreseeability of a recognised psychiatric illness. The signs suggestive of psychiatric illness, rather than psychological disturbance, satisfy the not far fetched and fanciful test of foreseeability. However, they do not, in my opinion, reach the level of possibility which would require the employer or surrogate employer to intervene.

In the circumstances of this case, however, the fact that the bullying was carried out by a relatively senior officer of Nationwide News led to the court finding the company liable for the tort of ‘intentionally causing injury’ (first identified in Wilkinson v Downton [1897] 2 QB 57; 66 LJQB 493), rather than the tort of negligence.60 4.59 In New South Wales v Fahy [2007] HCA 20 (Fahy), the High Court was required to consider an appeal from a finding of the New South Wales Supreme Court that the Police Service were in breach of their duty of care to the plaintiff police officer, who [page 234] had suffered psychological harm after being left on her own to cope with a traumatic situation, despite there being a system which normally required police officers to support one another unless unable to do so for operational reasons.61 While a 4–3 majority of the court overturned the verdict in the plaintiff’s favour, they did so on the question of breach of duty (considered in more detail in Chapter 5 at 5.2 ff). There was no real doubt expressed that the duty of care owed by the Police Service was analogous to that owed by an ordinary employer, and included a duty in relation to the psychological wellbeing of officers. Crennan J (in the minority on the issue of breach but not on the question of duty) summarised the law relating to psychological injury to employees and concluded, as noted above, that Australian law no longer imposes artificial ‘control mechanisms’ in psychological injury cases (at [250]): A claim in respect of a psychiatric injury which is reasonably foreseeable is limited only by reference to general considerations: the compatibility of a duty of care with any conflicting professional responsibilities,1 whether imposed by statute2 or contract,3 and considerations of legal coherence.4 Likewise, the question of what a reasonable employer should do as a response to a foreseeable risk of psychiatric

injury to employees as a class or individually is subject to those general considerations. 1.

Tame (2002) 211 CLR 317 at 335 [26] per Gleeson CJ, 342 [57] per Gaudron J.

2. 3.

Sullivan v Moody (2001) 207 CLR 562 at 582 [60]. Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

4.

Tame (2002) 211 CLR 317 at 335 [28] per Gleeson CJ; 342 [58] per Gaudron J; 361 [123] per McHugh J; 381 [191] per Gummow and Kirby JJ; 417–18 [296] per Hayne J; 425 [323] per Callinan J. See Sullivan v Moody (2001) 207 CLR 562 at 582 [60].

4.60 In Doherty v New South Wales [2010] NSWSC 450, following the principles as to duty of care accepted in Fahy, the court held that the police department owed a duty of care to one of its senior officers to take reasonable care not to expose him to unnecessary harm through the psychological stress of police duties, and found that the state had failed to provide proper help for an officer suffering from post-traumatic stress disorder. Price J commented (at [155]–[156]): It follows from the obligations cast on police officers under the Police Act, that if a police officer is lawfully ordered to do something which is dangerous, no breach of duty will normally arise in requiring the officer to undertake that dangerous task. It is inevitable that police work will involve stressful, unpleasant and dangerous work. The plaintiff does not complain that the specialised work of a crime scene investigator was so inherently stressful that he should not have been obliged to undertake that work under any circumstances. The plaintiff’s claim is that it was foreseeable that his work in the FSG would expose him to a high risk of psychological injury and the defendant owed him a duty to take reasonable care to prevent or

[page 235] minimise that high risk. This was a personal duty owed to him and could not be delegated. There is nothing, it seems to me, in what was said by the High Court in Fahy which detracts from a finding that the defendant owed the plaintiff a non-delegable duty of care. It was accepted in Fahy that either the Crown or a person for whom the Crown was vicariously liable owed Ms Fahy a non-delegable duty of care.

4.61

In MacKinnon v Bluescope Steel Ltd [2007] NSWSC 774, a

claim for psychological injury resulting from attendance at a leadership course was rejected; the employee had consented to attend the course, and in any event showed no obvious signs after the course that it had caused a psychological condition. However, on appeal in Mackinnon v BlueScope Steel (AIS) Pty Ltd [2009] NSWCA 94, the court ruled that the trial judge had applied the wrong legal test to the claim (referring to the question of ‘normal fortitude’, for example) and had failed to take into account evidence that the reaction to the course was not only foreseeable but had actually been foreseen (an email from a course instructor had raised issues about the possible impact of the course on the plaintiff, but had not been responded to). In the United Kingdom decision of Daw v Intel Corp UK Ltd [2007] EWCA Civ 70, a complaint about overwork by the plaintiff was held to put the employer on notice that there was a danger of psychological harm (although there was also evidence of previous counselling, which added to the foreseeability). In Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 the court ruled that an employee’s claim for psychological injury failed, where he claimed that it had been caused by his being rostered to work away from home, which had led him to abuse alcohol and marijuana. The court ruled against there being a duty of care in the circumstances, both on the ‘autonomy’ grounds relied on in the High Court decision in CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47 (to be discussed below: see 4.98), and also because it was not foreseeable that a rostering arrangement of this sort would lead to that outcome. In Taylor v Haileybury [2013] VSC 58, a claim for stress due to overwork was rejected on the grounds that the plaintiff had signed a contract which spelled out his duties clearly, and there was no evidence that he was suffering any more stress than other teachers. In the case of Doulis v State of Victoria [2014] VSC 395, a teacher suffered a ‘breakdown’ after having been given a heavy load of

‘difficult’ classes for some time. Ginnane J examined the evidence and concluded (at [552]–[553]) that the teacher had made sufficient complaints and had provided sufficient evidence of the stress to his employer, that the school should have been aware of the issues. The topic of ‘workplace bullying’ has come to fore recently. There is no doubt that psychological harm can be caused by repeated harassment and bullying, and that in some cases an employer may be held liable if they fail to take action to stop it when they become aware of it. However, the decision in Brown v Maurice Blackburn Cashman [2013] VSCA 122 illustrates that the court will seriously examine allegations of bullying, which must be clearly proved. In that case, a managing partner in a major [page 236] law firm claimed that she had suffered psychological harm from bullying, but she was not able to establish the claimed course of harassment. Her case was difficult in that she was the supervisor of the person who was alleged to have been doing the ‘bullying’. Such claims may succeed, however. In Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64, Ms Keegan returned to work under a new store manager who proceeded to bully her and harass her on a constant basis. While the employer was entitled to assume that Ms Keegan was capable and able to take correction from her supervisor, her complaints to senior management were not followed up according to its bullying policy and no investigation was undertaken. Justice Henry found that there is a general duty of care to look out for the psychological health of employees, and that it had been breached by the employer failing to take action against the bullying behaviour. A claim made by a university lecturer against Curtin University was rejected in Christos v Curtin University of Technology [No 2]

[2015] WASC 72 because the relevant psychological harm was said to not be foreseeable. McKechnie J (at [643]) found that his suspension before the commencement of the limitation period caused his problems rather than any subsequent behaviour. Psychological injury claim by non-employees 4.62 We now turn to the law as amended by the CLA. The following discussion considers the areas that are adjusted by the CLA Pt 3 when a court comes to consider the question of psychological harm in the workplace which is raised outside the situation of an employee suing an employer (for example, where the case involves a claim of psychological harm caused to a contractor or non-employee). Such a situation, for example, gave rise to the High Court decision in Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22. There, two police officers had claimed against the State Rail Authority (not their employer) for psychological trauma experienced as a result of assisting in the aftermath of the Waterfall rail accident. 4.63 First, we will consider cases where the psychological harm flows from a physical injury. Part 3 of the CLA makes a distinction between two types of mental harm. The definitions are outlined in s 27: 27 Definitions In this Part: consequential mental harm means mental harm that is a consequence of a personal injury of any other kind. mental harm means impairment of a person’s mental condition … pure mental harm means mental harm other than consequential mental harm.

[page 237]

The sort of harm we are considering here, then, is ‘consequential’ mental harm. The provisions of s 32(1) apply to both this sort of harm and the ‘pure’ sort we will be examining below: 32 Mental harm — duty of care (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. … (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

So even in a case where severe physical injury has been caused, it will still be necessary for the plaintiff to establish a duty not to cause mental harm. This duty will only arise if it is foreseeable that ‘a person of normal fortitude’ might suffer a ‘recognised psychiatric illness’. These issues were discussed in connection with the common law: at 4.35 and 4.48. Although in the final outcome these categories will probably not constitute too great a barrier — as in many cases of injury mental harm will be foreseeable in a general sense — they may create problems where the plaintiff is particularly susceptible for some reason. And clearly the new principles concerning ‘foreseeability’ introduced by CLA s 5B (see 5.98) will need to be applied. This means that mental harm will need to be a ‘not insignificant’ risk. 4.64 How does the CLA affect claims for mental harm that do not flow from a physical injury (‘pure mental harm’)? The common law rule concerning the nature of the injury is now implemented in cases covered by the CLA s 31: 31 Pure mental harm — liability only for recognised psychiatric illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

This does not seem to amount to a departure from the common law rule.62 [page 238] 4.65 The rules about the nature of the relationship between the plaintiff and a person whose injury or death caused ‘shock’ are altered by the CLA s 30. 30 Limitation on recovery for pure mental harm arising from shock (1) This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim. (3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim. (4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law. (5) In this section: close member of the family of a victim means: (a) a parent of the victim or other person with parental responsibility for the victim, or (b) the spouse or partner of the victim, or (c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or (d) a brother, sister, half-brother or half-sister, or stepbrother or

stepsister of the victim. spouse or partner means: (a) a husband or wife, or (b) the other party to a de facto relationship within the meaning of the Property (Relationships) Act 1984, but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify.

Therefore, in an action based on shock caused by witnessing an injury or death, in order to recover the plaintiff must be either a witness ‘on the scene’ or a ‘close family member’. If the plaintiff is not a parent, spouse, child or sibling, and did not witness the accident, but rather attends the victim at the hospital emergency room, the CLA would seem to deny recovery where the common law may have [page 239] allowed it: see Jaensch v Coffey (1984) 155 CLR 549 (see 4.31), and Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33 (see 4.36) (where as noted previously McHugh J suggested that any close personal relationship, such as friendship, might have fallen within the range of foreseeability). This effectively means that for cases covered by the CLA, even though the common law after the Tame decision would not require ‘direct perception’ for non-family members, the statutory rule now will.63 4.66 We now have some guidance on these provisions from the decision of the High Court in the case mentioned above, Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22: see 4.62. In that case the police officers’ claim for psychological harm suffered as rescuers, taken against the State Rail Authority (who conceded negligence in causing the rail accident, no doubt as a result of

some damning findings that were made in a subsequent inquiry) was dismissed by the lower courts on the basis that the requirements of s 30(2) were not met. In particular, it was held that, despite working extensively to free trapped passengers, the officers had not ‘witnessed, at the scene, the victim being killed, injured or put in peril’ as they had arrived at the scene after the crash had actually occurred. In Wicks the High Court pointed out a number of anomalies with the CLA ‘mental harm’ provisions. In the end they referred the matter back to the New South Wales Court of Appeal because they said that that court ought to have made a ruling on the issues of (1) whether a duty of care existed, and (2) whether or not the accident had been shown to cause the condition of both officers. But in the course of doing so, they did give some guidance on how s 30(2) should be interpreted. Contrary to the lower courts, they said that the situation of the rescuing officers here satisfied the requirements of the provision. While the officers arrived after the actual crash, they were still present in the aftermath when many passengers were ‘in peril’ due to the danger from live electricity wires. (And indeed, since the passengers themselves were exposed to the horrific scenes of death and injury while being rescued, those passengers were ‘in peril’ of suffering mental harm themselves.) It was not necessary to find a particular ‘victim’ in the singular whose peril led to the officers’ harm; the word ‘victim’ could, applying the statutory ‘single includes the plural’ rule, be read as including ‘person or persons (as the case requires)’: at [54]. In another decision on a statute limiting common law recovery, however, King v Philcox [2015] HCA 19, the High Court held that a South Australian provision meant that there could be no recovery of damages for mental harm by the brother of a victim of a motor accident, because the brother drove past the scene of the accident after the victim had been injured.

[page 240] 4.67 What about the old common law requirement that there be a ‘sudden shock’? Section 32 of the CLA, which deals with the question of ‘duty of care’ in relation to ‘pure mental harm’, now provides: 32 Mental harm — duty of care … (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

The element relevant to our current discussion is s 32(2)(a). In determining the existence of a duty of care the court (see s 32(1) above) is effectively required to consider the foreseeability of harm ‘in the circumstances of the case’. These circumstances are said to include ‘whether or not the mental harm was suffered as the result of a sudden shock’. This formulation seems odd. The question of duty can only be resolved by asking about foreseeability — but that question is ‘What should I have thought about beforehand?’ The question of the existence of a duty cannot be logically resolved by considering the harm that actually eventuated. The provision, if it is to make any sense at all, should surely refer to the question whether it was foreseeable that a sudden shock ‘would’ cause mental harm. The incoherence of this provision is even more obvious when the relationship between s 30 and s 32 is considered. These sections deal with almost identical matters in some points, but

one is posed as a straight denial of liability, and the other is apparently framed in terms of a duty of care. In this regard, it seems that the best way to view s 32 is to say: in determining the existence or otherwise of a duty of care in the circumstances, the court should take into account the foreseeability of a sudden shock causing harm if in fact it is alleged that a sudden shock did cause harm. But s 32(2)(a) does not erect a complete barrier to recovery if there is no sudden shock. In that sense it may not alter the rules of common law. 4.68 Finally, note that the concept of a person of ‘normal fortitude’ has now been reintroduced by the CLA to cases where that Act is relevant. Section 32(1) seems to restrict recovery to cases where a person of ‘normal fortitude’ would foreseeably be harmed. This is now, since Tame, more restrictive than the common law.64 [page 241] In Anwar v Mondello Farms Pty Ltd [2015] SASCFC 109, it was held that there was a duty of care in relation to the psychological injury suffered by a worker following a painful crush injury to his hand. This is because it could be foreseen by the defendant that a person of ‘normal fortitude’ would suffer some sort of psychiatric illness from this physical injury; it did not have to be foreseeable that it would be schizophrenia, the plaintiff’s particular psychiatric illness.65 However, considering the provision in s 32(4), the effect may not be great. For example: Indiana Jones has a phobia about snakes. Knowing this, nevertheless one day as a joke you scare him by suddenly putting a snake in front of him. A person of ‘normal fortitude’ would be startled but suffer no harm. Indiana Jones, however, is so affected by the incident that he develops a severe mental illness (for example, agoraphobia). Can he sue you?

Section 32(4) says that the court is ‘not required’ to disregard what you knew or should have known about his fortitude. So it is possible he can still sue you. A recent example may further illustrate that these provisions may not provide an insurmountable barrier to recovery. In Wright v Optus Administration Pty Ltd [2015] NSWSC 160, Campbell J discussed the application of s 32 to the plaintiff, who was not a full ‘employee’, when he was almost thrown off the defendant’s roof by another trainee. Optus had the sufficient degree of control to have a duty of care similar to that owed to an employee.66 His Honour held that under s 32(1) the onus lay on the plaintiff to show that a person of ‘normal fortitude’ might have responded to the events as he did. As Optus employees were aware of Mr George’s odd behavior before encouraging Mr Wright to meet him on the roof, the events in question were ‘reasonably foreseeable’, and the response of Mr Wright to almost being murdered was not beyond the bounds of the response of a person of ‘normal fortitude’.67 It was also found that s 32(2) was relevant because while the condition had followed a physical attack, the PTSD was not directly connected to the physical injuries, and hence was ‘pure mental’ harm.68 Economic loss 4.69 We have considered a number of the situations in which the law will impose a duty to avoid causing personal injury (including psychological injury) or property damage to someone else. We particularly noted that there is a clear duty on an employer to take reasonable care for the safety of its employees and protect them from personal injury while at work, and in many cases from psychological injury. More difficult questions arise when the issue of purely economic loss is considered. The following outline illustrates the distinction between personal, property, and ‘purely’ economic loss. The plaintiff in

Donoghue (see 4.3) could recover if the manufacturer’s negligence resulted in her becoming ill from drinking the ginger beer, [page 242] or if the bottle exploded and she received cuts from the flying glass. That would be personal injury. She could recover if the bottle exploded and ruined her good dress. That would be physical damage to property. However, if she received a bottle of ginger beer which, due to the presence of the snail, she could not sell to someone else, that would be economic loss. The law has been slow to acknowledge that negligence causing economic loss can lead to recovery. One reason often stated is the fear of creating ‘indeterminate liability to an indeterminate class for an indeterminate time’; ordinary commercial transactions may involve foreseeable economic loss to many other parties, for which it seems unreasonable to hold only one person responsible. To give a commonly cited example: negligence on the highway may involve personal injury to other drivers and physical loss in terms of a car damaged. But should a driver who causes an accident on the Sydney Harbour Bridge at peak hour be responsible for all the possible economic loss that could flow: flights missed, contracts not completed on time, deadlines not met? Until recently the law has drawn the line at extending unlimited liability for economic loss. 4.70 To limit recovery of damages for pure economic loss, the courts have said that there needs to be something ‘extra’ about the relationship between the two parties, above and beyond the element of foreseeability of harm. In Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241, Dawson J in the High Court said (at 254): … mere foreseeability of harm does not, where the only harm is pure economic loss, give rise to a duty of care. The reason for this is that a duty of care imposed by reference to the mere foreseeability of harm in the form of financial loss would

extend liability in negligence beyond acceptable bounds. Financial loss occurs as the result of legitimate commercial competition, and commercial activity would be stifled if the law were to impose a duty to take care to avoid that loss. … Thus, for a duty of care to arise in cases of pure economic loss, the law requires, in addition to the foreseeability of harm, a special relationship between the parties which is described as a relationship of proximity.69

As this book is concerned with risks to the person, we are unable to explore in any more detail the interesting area of where the duty to avoid causing economic loss may arise.70 [page 243] Occupier’s liability 4.71 An area of possible liability that may be available in the realm of workplace injury lies in the duty owed by those who occupy premises. Previously there were a number of specialised common law rules on the duty owed by occupiers to different categories of persons who were present on the property, the rules depending on the legal status of the entrant as, for example, a trespasser or an ‘invitee’. Those rules were mostly abolished in the High Court decision of Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. In most cases, claims relating to entry onto property will simply be resolved according to the usual principles of negligence relating to foreseeability. However, the court in that case specifically declined to alter the law dealing with one special class of entrants to property — those who entered pursuant to a contract with the occupier; that is, cases where the entrant paid money to enter the premises (such as entry to a cinema or a theatre). Indeed, the court reiterated in Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 that it had not yet changed the law on that topic. 4.72

This may be important, because, as Kirby J pointed out in

Hoyts Pty Ltd v Burns [2003] HCA 61, the standard of care owed by an occupier to a paying contractual entrant seems to be higher than that owed under the general law of negligence. In Hoyts his Honour described the duty in these terms (at [32]): In these circumstances … the duty owed by the appellant to the respondent was that of ensuring that ‘the premises are as safe for [the mutually contemplated] purpose as reasonable care and skill on the part of any one can make them’.1 That explanation of the warranty relating to the safety of premises implied in a contract between an occupier and a person who enters under the contract has been accepted by this Court as a correct statement of the law.2 1.

Maclenan v Segar [1917] 2 KB 325 at 332–3.

2.

Watson v George (1953) 89 CLR 409 at 424; cf Jones v Bartlett (2000) 205 CLR 166 at 196 [106].

The effect of this standard of care seems to be that the duty will be a ‘non-delegable’ duty, which will be breached even where the failure to exercise due care has been on the part of a contractor. Even where the duty is not in this special class of ‘non-delegable duty’, however, where the injured plaintiff has entered premises under a contract to perform work on the premises, this may give an independent ground of recovery against the occupier of the premises if the premises prove to be unsafe. One such case, for example, which we have already discussed (see 4.22), is Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19. In Davis v Nolras Pty Ltd [2005] NSWCA 379 at [22] it was accepted that a warehouse proprietor owed a general duty of care to the employee of a contracted firm (though on the facts the duty had not been breached). In Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160, the occupier Optus argued that it had no duty to prevent third parties causing criminal harm to the plaintiff Wright. The plaintiff was sent by his labour hire firm to Optus. He was taken out of a training session to the roof to see Mr George, who had requested to see him, [page 244]

although neither were friends. Mr George then grabbed the plaintiff in an attempt to throw him off the roof. Others prevented this from happening, though leaving the plaintiff with PTSD. Campbell J ruled that Optus had enough control and other features in the relationship to make it an employment-like relationship, applying TNT Australia Pty Ltd v Christie at 4.20 above. His Honour also found that the employment exception to the Modbury case (at 4.6 above) applied: see [68]–[76]. Liability of manufacturers of defective products or suppliers of defective premises 4.73 Another possible action in negligence that relates to workplace safety is an action against a manufacturer of a product to be used in the workplace.71 There can be no doubt that a manufacturer of a product owes a duty of care to the ultimate consumers or users of the product to not cause them physical injury. This was, after all, one of the narrowest possible ratios of Donoghue v Stevenson: see 4.3. So it has been held that a manufacturer of a tool or chemical to be used in the workplace can be liable for personal injury suffered by a worker. Such a duty was recognised in Taylor v Rover Co Ltd [1966] 2 All ER 181 in relation to a tool; and in Wright v Dunlop Rubber Co Ltd (1972) 13 KIR 255 in relation to chemicals.72 In Ali v Prestige Group (Australia) Pty Ltd (SC(NSW), Malpass M, 31 July 1997, unreported), a worker was given permission to commence an action against the supplier of allegedly defective machinery after an injury in the workplace. 4.74 It might be also worth keeping in mind the possible implications of Northern Sandblasting Pty Ltd v Harris (1997) 71 ALJR 1428 and Jones v Bartlett [2000] HCA 56. The result of those cases seems to be that a landlord who rents out premises has a duty of care to people who will be using the premises. That duty will at least extend to inspecting the premises for obvious dangers before they are let out, and adequately responding to any dangers

to which their attention is drawn.73 Arguably, liability would extend to someone who rents out work premises, in relation to a worker injured as result of obvious defects in the premises. For a case where such liability was established, see Lapcevic v Collier [2002] NSWCA 300. There the landlord rented out premises, which he knew were to be used as work premises, the main door of which was defective. Beazley JA found (at [46]): [T]here was a dangerous defect in the sense used in Jones v Bartlett. The appellant was aware of the dangerous defect not only because of its contractual obligations to fix the door but because of the continuing requests from Advance to the appellant that the door be attended to. It is arguable, for the reasons expressed in Jones v Bartlett, that, on this basis alone, quite independently of the contractual provision on either of its constructions, the appellant owed a duty to a person such as the respondent,

[page 245] who was required to open the door in its dangerous condition. It breached that duty by failing to fix the door. [emphasis added]

4.75 A case in which product liability was used as part of a common law claim for workplace injury was Hampic Pty Ltd v Adams [1999] NSWCA 455 (Hampic). The plaintiff was working as a cleaner for Newcastle City Council when she contracted a severe skin condition through using a particularly powerful cleaning fluid. She successfully sued her employer, the council, but was also successful in suing the manufacturer of the fluid for its failure to include an appropriate warning on the bottle as to the dangers of use. An interesting feature of this case was that, while it was clear that the action could have been taken relying on the common law of negligence,74 in fact the plaintiff took the action in reliance on the provisions of s 52 of the Trade Practices Act 1974 (Cth) (TPA). That section, which applied only to companies, and an equivalent provision in state law that bound individuals,75 prohibited ‘deceptive and misleading conduct’ in trade and commerce. The

court upheld the finding of the trial judge that the label on the cleaning fluid had been misleading because it did not clearly set out the extent of the possible danger (at [34]): In our view, the trial judge was correct to conclude that the label was misleading or deceptive or was likely to mislead or deceive. To anyone who read it, it had the capacity to lull into a false sense of assurance. True, it warned that rubber gloves should be worn; but the warning was qualified by the words ‘with prolonged use’. And true, the recommended average strength was one part Power Kleen with fifteen parts water; but the label added that the product may be used ‘stronger or weaker as required’. The absence of first aid directions would further have contributed to a representation that the product was not as potentially harmful as it turned out to be.

(Note that the former TPA s 52 has now been replaced by the Australian Consumer Law (ACL) s 18, which is contained in Competition and Consumer Act 2010 (Cth) Sch 2. This is uniform legislation that applies in the Commonwealth and all states and territories, and contains effectively the same prohibition on ‘deceptive and misleading conduct’.) 4.76 The Court of Appeal in Hampic also noted that an action could have been brought in reliance on another section of the Trade Practices Act, s 75AD.76 That section was part of Pt VA of the Act, which created a regime of ‘strict liability’ for defective products. Australian Competition & Consumer Commission v Glendale Chemical Products Pty Ltd (1998) ATPR ¶41-632 is one of the few cases decided under that provision. In similar circumstances to the Hampic case, the manufacturer of a cleaning fluid was held liable for injuries caused by the fluid against which the label did not provide [page 246] sufficient warning.77 (Note that the ‘strict liability’ product regime is still in force under the ACL Pt 3-5. Section 138 imposes civil liability on the manufacturer where a person suffers injuries because of the safety defect.)

Another workplace injury case where an action under s 75AD was possible was White v Canberra Furniture Manufacturing Pty Ltd [1999] ACTSC 53. In that case it was alleged that the plaintiff’s injuries resulted from a defective piece of formwork that had been manufactured by a ‘partnership’ of three companies trading as ‘Canberra Wall Frames’. Unfortunately for the plaintiff, the s 75AD claim was dismissed because the action had been commenced against the ‘partnership’ rather than against the individual companies, and s 75AD only applies to companies. His action in negligence, however, succeeded. 4.77 Actions under the strict product liability regime of the ACL Pt 3-5, where harm has occurred as a result of an injury in the workplace, may possibly be restricted by s 146, which provides that the provisions do not apply ‘to a loss or damage in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that: (a) relates to workers’ compensation …’. There are a number of questions raised by the wording of this provision. For example, we will see in Chapter 11 that in New South Wales a worker can elect whether or not to claim statutory compensation under the Workers Compensation Act 1987 (NSW), or else to claim common law damages. It could be argued, however, that s 146 has the result that even if a worker chose to claim common law damages, if they would have been entitled to a statutory amount, however small, they are precluded from taking an action under Pt 3-5. This seems to have been the assumption made in the decision in Drake v Mylar Pty Ltd [2011] NSWSC 1578. That case dealt with the provisions of the former TPA, as the injury occurred prior to the commencement of the ACL on 1 January 2011. The equivalent to current s 146 of the ACL was s 75AI of the TPA. The worker actually succeeded in his claim under provisions of the TPA relating to deceptive and misleading conduct against the supplier of a wooden joist which had been of insufficient strength (despite

its labelling) to support his weight. But there was also a claim made under the strict liability provisions. In relation to that claim, the defendant claimed that s 75AI precluded the worker’s action. The judge found, however, that the worker, who was the director of his own company, was not an ‘employee’, and hence was not entitled to compensation under the WCA 1987: see [66]. Hence the s 75AI defence was not applicable. Still, it seems to have been assumed that if he were an employee, the defence would have precluded the application of the provisions. This view will probably be adopted in interpretation of the current s 146 of the ACL.78 It does mean, however, that contractors (as opposed to employees) who are injured by defective products may have a statutory action [page 247] under s 138. In Laws v GWS Machinery Pty Ltd [2007] NSWSC 316, the injured worker was held to have an action under the strict liability provisions because he was clearly not an ‘employee’: see [165]–[172]. 4.78 Even if there is an action against a supplier of equipment where the equipment is defective when supplied, it should be noted that, unless some special arrangements are in place, a supplier will not usually be liable for a failure to maintain supplied equipment. In J-Corp Pty Ltd v Coastal Hire Pty Ltd [2009] WASCA 36, a worker had sustained injuries by falling from some scaffolding. Coastal Hire had supplied the scaffolding, but the trial judge found that after being properly installed, it had been interfered with by some third party, possibly other contractors who were doing some plastering. Despite this, Coastal were initially found partly liable for the accident on the basis that they ought to have regularly checked that the scaffolding was still intact.

However, the Court of Appeal overturned this finding, holding that Coastal’s obligation was simply to supply suitable equipment, and that maintenance of that equipment was then the responsibility of the person in charge of the building site. Newnes AJA said (at [52]): This case does not fall within any of the recognised categories of cases where the existence of the relevant duty of care has been established. Where a person lets on hire goods which are in a safe condition there is no general duty on that person, while the goods are in the possession of the hirer, to exercise reasonable care and skill to maintain the goods or to put the goods in a safe condition if they are damaged or misused, so as to prevent injury to third parties. That is not to say that such a duty could never in any circumstances arise. But it is not a duty that will ordinarily arise simply by reason of a contract of hire. Something more will be required.

Liability of government inspectors 4.79 Negligence actions might in theory also be available where premises or plant were defective, and ought to have been noticed to be defective, by an inspection of the workplace by a government official. The major cases in this area concern local councils and whether or not they have a duty to inspect buildings for defects. One example in the High Court was Sutherland Shire Council v Heyman (1985) 157 CLR 424 (Heyman). In that case the purchasers of a house with defective foundations sued the local council for failing to properly inspect the house when it was built.79 The High Court held that there are indeed some situations in which a person relies on a government authority exercising its powers of inspection, and if the authority inspects negligently it may be liable. In the Heyman case itself it was held that in the circumstances it was not possible to show such reliance by the purchaser of the house. A factor counting against this was that the legislation had provision for a certificate to be provided by the council stating whether or not the house complied with regulations.

[page 248] 4.80 However, in circumstances where a government official checks the safety of machinery or safety procedures, and does so negligently, it is possible that an action by either a worker or the employer would succeed. Brooks80 discusses two cases that affirmed the possibility of an action succeeding. In Hurling v Haynes (1987) Aust Torts Reports ¶80-103, Clarke J had to consider whether an inspector appointed under the Factories Shops and Industries Act 1962 (NSW) owed a duty of care to an employee injured by an item of defective machinery. The socalled ‘factory’ was actually a butcher’s shop, but because the butcher used a machine to make sausages the shop was required to be registered as a factory. A government inspector examined the premises and approved the registration of the machine. An employee was injured some years later when using the mincing machine, partly due to the fact that there was no proper guard on it. In the circumstances the inspector was found not to be liable, because the inspection was not an inspection of the machinery but an inspection of the premises. There was no duty cast on the inspector to inspect the machinery. In the particular case Clarke J held that it would be necessary to show that the employer or the employee were in some way relying on the inspection to establish that the machine was safe. While on the facts, then, there was no liability due to there being no duty to inspect the machinery as such, nor any reliance by the employer on the inspection, the judgment suggests that in other cases where such factors are present an inspector might be liable. 4.81 This is illustrated by the decision in Gordon v James Hardie & Co Pty Ltd (No 2) (1987) Aust Torts Reports ¶80-133. In that case McInerney J was asked whether as a matter of law an action would

exist against a government mines inspector if certain things could be proved. It was claimed that the plaintiff in the case had contracted injury and disease from exposure to asbestos while working at a mine. It was also claimed that during that time it was common practice for the mine owners to receive advance warning of visits by the inspectors, as a result of which the asbestos that was normally evident at the site was ‘damped down’ and the mine area artificially cleaned up for the inspection. As a result of this practice, asbestos continued to be present at dangerous levels in the absence of inspectors. In this case McInerney J expressed no doubt that there was a duty of care cast on the inspectors under the Mines Inspection Act 1901 (NSW), and that part of their duties was to make surprise inspections to detect breaches of safety procedures. This was not simply a failure to act, as in the Heyman case; it was a case where the inspectors had chosen to inspect and done so negligently. A related case is Alec Finlayson Pty Ltd v Armidale City Council (1994) Aust Torts Reports ¶81-282, where a local council was held liable for approving a residential subdivision of land when it ought to have known that the land was contaminated by chemicals and unsuitable for residential development. The court held that the [page 249] developer had been entitled to rely on the council health surveyor properly inspecting the site over a number of years.81 4.82 In Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099, the Full Court of the Federal Court dealt with the liability of a local council and the state government for allowing contamination of oysters in a lake, which resulted in both illness and economic loss to oyster sellers. The result of the Full Court decision was that the council was held not to have a duty of care

(Lindgren and Kiefel JJ) but the state was held to have had a duty (Lee and Kiefel JJ). On appeal, in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, the High Court overturned the finding of liability against the state, and agreed with the Full Court that the council was not liable. Effectively, the High Court ruled that the issue of ‘control’ of the activity concerned was central. Neither the state nor the council had such a close degree of control over the operation of the oyster industry that they should be held to have a duty of care. Gummow and Hayne JJ in their joint judgment commented (at [150], [154]): The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority.1 It assumes particular significance in this appeal. This is because a form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde,2 is remote, in a legal and practical sense, does not suffice to found a duty of care … In broad terms, the Council’s statutory powers enabled it to monitor and, where necessary, to intervene in order to protect, the physical environment of areas under its administration. However, the conferral on a local authority of statutory powers in respect of activities occurring within its boundaries does not itself establish in that authority control over all risks of harm which may eventuate from the conduct therein of independent commercial enterprises. As the course of this litigation itself indicates, control over the safety of the Wallis Lake oysters for human consumption has been fragmented. The conduct of the Council did not ‘so closely and directly [affect]’ oyster consumers so as to warrant the imposition of a duty of care owed by the former to the latter.3 There were ‘too many intervening levels of decisionmaking’ between the conduct of the Council and the harm suffered by the consumers.4 1.

2.

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551–2; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 24–25 [43]–[46], 42–43 [104], 61 [166], 82 [227], 104 [304], 116 [357]; Brodie v Singleton Shire Council (2001) 206 CLR 512 at 558–9 [102]. (2000) 201 CLR 552 at 562 [16], 564 [21], 581–2 [81]–[83].

3. 4.

Cf Agar v Hyde (2000) 201 CLR 552 at 579 [70]. Cf Agar v Hyde (2000) 201 CLR 552 at 581 [81].

These comments were adopted and followed in Roads and Traffic Authority of New South Wales v Palmer [2003] NSWCA 58 at [123]– [125], in rejecting a claim that

[page 250] the RTA had a duty of care in relation to the condition of a road, where the day-to-day maintenance of the road was the responsibility of the local council. 4.83 In actions against government authorities, the courts sometimes draw a distinction between a ‘policy’ decision and an ‘operational’ decision. Policy decisions cannot be the subject of claims for negligence, but operational decisions might. As an illustration in the WHS area: a government decision to cut back the resources of WorkCover so that there were generally less inspections of machinery would be a policy decision. But the actions of a particular inspector in negligently approving a piece of unsafe machinery (should that be part of their duties) would be an operational decision. Arguably that might result in an award of damages in negligence against the government as vicariously liable for the actions of the inspector: see especially the comments of Ipp JA on the state’s vicarious liability below in Amaca: at 4.85. A High Court case relevant to the issue of the liability of a public authority for negligent inspection is Pyrenees Shire Council v Day (1998) 72 ALJR 152.82 There a local council had been made aware that a fireplace in an old house was defective, and had written to the owner of the house requiring him to carry out repairs. The council did not, however, follow up the letter with any subsequent inspection or action. Later a fire built in the defective fireplace by a tenant (who was unaware of the council’s previous advice) led to the burning down of not only that house but also a neighbouring house. All the members of the High Court agreed that the council owed a duty of care to the neighbours, who had no knowledge of the defect. Three out of the five judges (Brennan CJ, Gummow and Kirby JJ) also found that the duty was owed to the tenants; the minority (Toohey and McHugh JJ) concluding that the situation of

the tenants as occupiers meant that they should have borne the responsibility of checking the safety of the premises. Four of the judges found that liability to the neighbours existed in the general law of negligence, and particularly flowed from the knowledge of a council employee that the fireplace was dangerous. The case would probably have been decided differently if there had been a failure to inspect at all, because the legislation imposed no ‘duty to inspect’. However, once an inspection had been made and the council (through its employee) knew of the danger, then it had an obligation to act to prevent the risk of fire from eventuating in a crowded residential area.83 4.84 In Brodie v Singleton Shire Council [2001] HCA 29, a majority of the High Court upheld council liability for failure to repair a public road. The joint judgment of McHugh, Gaudron and Gummow JJ described the relevant duty in this way (at [150]): Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or

[page 251] repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist. [emphasis added]

4.85 A body with powers to inspect equipment or workplaces, then, may fall under a common law duty to carry out those inspections with reasonable care, having regard, however, to the resources it has available.84 This precise issue, as to the liability of the State of New South Wales for careless inspection by a safety

inspector, was raised in Amaca Pty Ltd (formerly known as James Hardie & Co Pty Ltd) v New South Wales [2004] NSWCA 124. The court held that the State of New South Wales did not owe a duty of care to workers who contracted disease from exposure to asbestos products. The claim was made (by way of a claim for ‘contribution’ from James Hardie & Co and other defendants) on the basis that state workplace safety inspectors knew of the level of asbestos exposure occurring in workplaces, had the power to issue directions to reduce or eliminate this exposure, and failed to do so. Ipp JA, who delivered the judgment of the court with which Mason P and McColl JA concurred, held that: The state was potentially liable for negligence of its inspectors: at [120]–[133]. However, there are only a very limited number of cases where the law will impose a duty of care on a statutory authority in respect of a failure to exercise statutory powers: see the summary (at [65]) drawn from previous High Court decisions. In this case there was no duty of care because: – while the state could have issued certain directions, it was essentially not in sufficient control of the asbestos industry to be fixed with the duty: at [142]–[144]; – a number of other entities (employers, manufacturers) had greater control and in the relevant sense workers were not ‘reliant’ on the state to minimise risk, as they could look to these other entities to do this: at [157]; and – imposing a general duty of care on the state in relation to workers at risk in New South Wales would give rise to a ‘massive obligation’ not restricted to the asbestos industry, which in itself was a good reason to find that such a duty did not exist: at [158]. [page 252]

4.86 Interestingly, a similar, though more specific, claim was allowed to proceed in Lovric v WorkCover Authority of New South Wales [2007] NSWSC 898. Mr Lovric was injured due to an explosion at a fireworks factory. His claim against WorkCover was made on the basis that there had been a similar explosion a few years previously, and that while WorkCover had conducted a prosecution at the time, and later issued ‘Improvement’ and ‘Prohibition’ notices, it did not follow up and monitor whether or not appropriate changes in the machinery used were made to prevent further harm to employees. Harrison J held that while there would be a number of difficulties faced by the plaintiff in making out his claim (particularly citing the Amaca decision noted above: at 4.85), the case was not so obviously without merit that it should be struck out. Hence the plaintiff was to be allowed to take the claim to a full trial.85 In the United Kingdom the English Court of Appeal in Health and Safety Executive v Thames Trains Ltd [2003] EWCA Civ 720, in similar proceedings against the United Kingdom equivalent of WorkCover, refused to strike out a common law negligence claim. The court held, at a preliminary stage of the proceedings, that the claim was not ruled out by earlier House of Lords authority (in particular Stovin v Wise [1996] AC 923) on actions against statutory bodies for failure to exercise powers. Possible liability of company directors 4.87 Finally, in our consideration of different duty situations, it is worth mentioning an area of potential liability that has not been widely used previously, but may become more popular. This is the possibility that the directors of a company may themselves be personally liable for workplace injuries suffered by company employees. The background to this area is that, in general, a company director is not liable for obligations entered into by the company. A company at law has a ‘separate legal personality’, and is

responsible for its own contracts and wrongs.86 However, over the years the courts have spelled out that in some circumstances a company director, while not liable for company contracts, may be held personally liable for wrongs done to third parties by the company.87 The preferred way of expressing the circumstances in which this may take place, under Australian law, is that the director may be held liable where they have ‘directed and procured’ the commission of a wrong by the company.88 It is important to note, however, that this ‘directing and procuring’ may not necessarily be explicit, but may result from a failure to take adequate precautions where precautions were needed.89 [page 253] Thus it is possible that a director may be found personally liable for a failure in company safety procedures where they were aware that these were occurring. Overseas cases where such personal liability has been imposed include the English decision of Yuille v B & B Fisheries (Leigh) Ltd & Bates (The Radiant) [1958] 2 Lloyd’s Rep 596, the Irish decision of Shinkwin v Quin-Con Ltd [2000] IESC 27; [2001] 1 IR 514 and the Canadian cases of Berger v Willowdale (1983) 145 DLR (3d) 247; Medina v Danbury Sales (1971) Ltd (1991) 30 ACWS (3rd) 770 and Fullowka v Royal Oak Ventures Inc 2004 NWTSC 66; [2005] 5 WWR 420. 4.88 In Australia there are no cases supporting personal liability in these circumstances to date.90 That probably results from the fact that most workplace injuries will be covered by compulsory insurance established under workers’ compensation schemes (discussed in Chapter 11). But with increasing restrictions being imposed on common law actions against employers under those schemes, it may be that injured workers will occasionally try to avail themselves of actions against other defendants.91 On established principles there are at least some circumstances where

individual company directors may well be personally liable for compensation, even if the company itself has become insolvent. 4.89 On the other hand, the majority of the High Court (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) in Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 said (at [49]): [I]t is possible here to distinguish between the common law duties owed by Andar and those owed by Mr Wail in his personal capacity as director or employee. The common law duty to take reasonable care for the safety of employees is imposed directly upon Andar by virtue of its status as an employer. The duty is not imposed upon individual directors of a corporate employer. (The duties which directors have are different. For the most part, they are found in the applicable corporations law, and are owed to the company, not others.) To seek, as Andar does, to derive some significance from the circumstance that the board of the company is limited to two directors and that one of those directors (Mr Wail) ordinarily manages aspects of the delivery business is therefore to ignore the nature of the obligation relevantly imposed upon Andar by the common law. [emphasis added]

[page 254] It is arguable that this comment was made obiter dicta in a case which mainly concerned other issues, and that all that it means is that, in the circumstances of this particular case, Mr Wail did not owe a personal duty. (See the explicit qualification of the general comment as applying ‘for the most part’.) But obviously this comment will need to be taken into account if an argument is made for the personal liability of directors.92 In a case involving possible criminal liability for manslaughter by negligence by a company director (manslaughter by the company will be considered in more detail in 13.74) the New South Wales Court of Criminal Appeal in R v Moore [2015] NSWCCA 316 had to determine whether the director of a company owed a personal duty of care under the law of negligence to a worker of the company. (Establishment of the civil duty of care was a part of establishing the possible criminal liability.) Bathurst CJ (at [68]) noted that the effect of Andar was

that a director would not automatically owe a duty of care to a worker of the company simply by virtue of their holding a position as director. However, his Honour went on (at [74]–[75]) to say that the particular circumstances of a case, where for example the person concerned had taken an active role in directing work on site, may give rise to a duty of care based on the exercise of control, which would not itself be precluded by the defendant occupying a position of director. (See also Simpson JA agreeing (at [193]–[194]) along with Bellew J: at [258]–[260].)

General criteria for establishing duty in other cases 4.90 Up to this point in the chapter we have considered the duty of care that arises in workplace injury claims where there is an established category of relationship between the injured worker and the defendant (such as employer, or ‘organising’ principal, or ‘occupier’). What principles do the courts apply to this question where there is no clear pre-existing legal category? Until the mid-1990s courts in Australia used the label ‘proximity’ to refer to the relationship that needed to exist between two persons before one would owe a duty to the other to take reasonable care. The High Court said in Bryan v Maloney (1995) 182 CLR 609 at 617: The cases in this court establish that a duty of care arises under the common law of negligence of this country only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant kind of damage. [emphasis added]

4.91 In the last decade, however, the word ‘proximity’ has lost favour with the High Court to a great extent (and, as a result, with other Australian courts).93 [page 255]

In fact, the concept of proximity as a test for duty of care has now been overruled: see the following comments of the court (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) in Sullivan v Moody [2001] HCA 59 at [48]: As Professor Fleming said,1 ‘no one has ever succeeded in capturing in any precise formula’ a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence. The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this Court which emphasised that centrality,2 it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established.3 It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited. 1.

J Fleming, The Law of Torts, 9th ed, (1998) at 151.

2.

For example, Jaensch v Coffey (1984) 155 CLR 549 especially at 584–5 per Deane J; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 52 per Deane J. Hawkins v Clayton (1988) 164 CLR 539 at 555–6 per Brennan J; Hill v Van Erp (1997) 188 CLR 159 at 210 per McHugh J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 96–7 [270]–[274] per Hayne J.

3.

However, a ‘relationship’ of some sort still needs to be established between the two parties, and the necessary relationship required to establish a duty varies with the type of act done (or not done), and the type of damage suffered. The main starting point is the nature of the loss. So where there is possible personal injury involved (a broken leg, for example), then as a general rule all that the law requires for there to be a duty not to cause personal injury by your action is that this result be ‘reasonably foreseeable’. Different rules apply, however, in a case where someone suffers not personal injury, but simply ‘economic loss’ (as noted above: at 4.69). We have already seen the clear duty of care that arises in many cases of personal injury. The cases illustrate the types of situation where the necessary relationship has been found to exist, and so where there is a duty to avoid foreseeable damage. 4.92

In general, most cases of damage or injury will fall within

well-established guidelines based on previous cases. Unfortunately, however, there is to date no judicial consensus on the precise nature of the current test where a case arises which is not precisely covered by precedent. One suggested approach was that put forward by Kirby J in Pyrenees Shire Council v Day (1998) 72 ALJR 152. His Honour suggested (at [244]) that Australian courts should adopt the test for duty of care spelled out by the English House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617–18 (Caparo). Kirby J’s approach was explicitly followed by Studdert J in TC v New South Wales [1999] NSWSC 31 at [165]. However, it was rejected by other members of the High Court in Perre v Apand Pty Ltd [1999] HCA 36; see especially McHugh J: at [77]–[82]. More recently the five justices who delivered the [page 256] unanimous opinion of the court in Sullivan v Moody [2001] HCA 59 commented (at [49]): What has been described as the three-stage approach of Lord Bridge of Harwich in Caparo Industries Plc v Dickman does not represent the law in Australia. [footnotes omitted]

4.93 In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 at [238], Kirby J acknowledged with reluctance that the Caparo test was not the test that should be adopted by Australian courts, and that instead the preferred test now seems to be one that involves the balancing of a number of ‘salient factors’. This was confirmed, for example, by Spigelman CJ in Hunter Area Health Service v Presland [2005] NSWCA 33 at [9]: Where, as in the present proceedings, a novel issue arises with respect to the existence or scope of a duty of care, the contemporary Australian approach to determining both matters is to engage in a multifactorial or ‘salient features’ analysis. (See the summary in the joint judgment in Sullivan v Moody (2001) 207 CLR 562 at 579 [50]–[51]. See also Perre v Apand Pty Ltd (1999) 198 CLR 180 at 198 [27]–

[198] and 254 [201], 302 [333], 326 [406]; Graham Barclay Oysters supra at 597 [149], 624 [236]–[237].)

In Perre v Apand (1999) 198 CLR 180, McHugh J suggested an approach that he called the ‘incremental approach’ to determine whether or not a duty of care exists in a new case. His Honour’s clear outline of this approach is as follows (at [94]): In my view, given the needs of practitioners and trial judges, the most helpful approach to the duty problem is first to ascertain whether the case comes within an established category. If the answer is in the negative, the next question is, was the harm which the plaintiff suffered a reasonably foreseeable result of the defendant’s acts or omissions? A negative answer will result in a finding of no duty. But a positive answer invites further inquiry and an examination of analogous cases where the courts have held that a duty does or does not exist.1 The law should be developed incrementally by reference to the reasons why the material facts in analogous cases did or did not found a duty and by reference to the few principles of general application that can be found in the duty cases. [emphasis added] 1.

McHugh, ‘Neighbourhood, Proximity and Reliance’, in Finn (ed), Essays on Torts (1989) 5 at 39; Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1058–60 per Lord Diplock; Hill v Van Erp (1997) 188 CLR 159 at 178–9 per Dawson J.

4.94 His Honour applied this reasoning in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 at [71]–[72] (Crimmins). Crimmins is important for our purposes because it provides an example of the extension of a duty of care in relation to a workplace safety issue, where the relationships between the parties are slightly unusual. The facts were that Mr Crimmins worked on the waterfront in Melbourne for a number of years as a waterside worker. He was engaged on a casual basis by shipowners from time to time, but his employment was co-ordinated and supervised by a statutory [page 257] authority, for whose actions the Stevedoring Industry Finance Committee (SIFC) was responsible.94 During his work Mr Crimmins was exposed on many occasions

to asbestos fibres, which led to him contracting mesothelioma. The question at issue was whether the authority owed a duty of care to Mr Crimmins to prevent him from being exposed to asbestos, even though it was not technically his employer. As we saw already, if he had been an employee of the authority there would have been no doubt that a duty existed. But as he was not, the High Court had to determine whether the duty of care should be extended. The different judges to some extent followed the approaches they had taken in Perre v Apand (see 4.93 above), which were fairly diverse. 4.95 Following his ‘incremental’ approach, McHugh J asked first whether the case fell within existing categories: at [61]. He suggested that in fact this case did fall within an established category of ‘failure to exercise statutory powers with due care’. Given that the injury alleged was clearly personal injury, and there had been the ‘positive action’ of placing the worker with a careless employer, his Honour suggested there could have been a fairly straightforward finding of duty.95 However, the plaintiff had not pleaded the case in that way. Instead, rather than alleging carelessness in positive action, the plaintiff had alleged a failure to act — a failure to give information, inspect workplace, prohibit work, provide equipment: at [64]. Given, then, that the case was to be approached as one of ‘failure to act’, McHugh J said that it could not be immediately identified as falling within the established categories. Thus the ‘incremental’ approach required (if foreseeability was established) identification of analogous previously decided cases and an examination of the reasons why a duty was found or not found in those cases: at [72]. The relevant principles were to be found in the area of the duty of public authorities, and cases on failure to act. When will a government body be liable for injury caused by not doing something? On the public authorities question McHugh J rejected

the general ‘policy-operational’ distinction,96 but said that there was a ‘core area’ of policymaking that would be outside a duty of care: at [87]. He then set out what in his view [page 258] the criteria should be for establishing whether or not a duty to take positive action was owed by a public body (at [93]–[94]): In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions: 1.

Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.

2.

By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty. Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.

3.

4.

5. 6.

Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty. Would such a duty impose liability with respect to the defendant’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions? If yes, then there is no duty. Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g., the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

If the first four questions are answered in the affirmative, and the last two in the negative, it would ordinarily be correct in principle to impose a duty of care on the statutory authority. [emphasis added]

In the circumstances his Honour found that the authority did owe a duty of care. Four other members of the High Court, while not adopting precisely the same reasoning, agreed that there was a duty of care.

Two members of the court, Gummow and Hayne JJ, held that there was no duty of care as the alleged omissions were failures to exercise ‘quasi-legislative’ powers which the authority had.97 The result was that by majority the authority was found to have had a duty of care98 in supervising the activities of the worker not to allow him to be exposed to dangerous levels of asbestos. [page 259] In a more recent case, the New South Wales Court of Appeal had to resolve the question of whether the authority had a duty of care to supervise those stevedores who were not the registered waterside workers the Authority’s role was to protect. That case, Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215, found that the authority, in its ability to direct registered waterside workers to unload or not unload a vessel, would also owe a duty to other workers who could be exposed to that very same risk of asbestos exposure.99 4.96 In another decision, however, a worker failed in circumstances arguably similar to those in Crimmins. In Sydney Water Corporation v Abramovic [2007] NSWCA 248, the question was whether Sydney Water, in engaging a firm of contractors to dig a pipeline, owed Mr Abramovic as an employee of that firm a duty of care. The claim was that the worker had contracted a lung disease due to inhalation of silica while digging the pipeline. Santow JA, in the minority, would have held that there was a duty of care: as in Crimmins, the harm was foreseeable, the worker was vulnerable, and the Water Corporation had knowledge of the relevant danger, and how to avoid it, whereas a small contracting firm might not have had that knowledge. But the majority (Mason P and Basten JA) held that more was needed before a duty of care could be found in this case — in particular, there needed to be

some evidence of a direct involvement in the carrying out of the work by the Water Corporation. 4.97 The High Court has more recently reaffirmed (as noted previously, see 4.26) that there is no generalised duty of care owed by a principal to those who do work as ‘contractors’ in Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35. That case involved the question whether a duty of care is owed by a principal to contractors or the employees of contractors on a building site. Mr Fox was the injured worker. He had been engaged to help with pumping some concrete on a building site by two men who had themselves been contracted by Downview Pty Ltd. Downview was working under a contract with Leighton, which was in charge of the whole project. Mr Fox was injured when, after he and a colleague had poured some concrete, they were cleaning a pipe by using compressed air, and the end of the pipe (which was unsecured) whipped around and struck him. The New South Wales Court of Appeal had previously held that both Leighton and Downview owed a general duty of care to contractors working on the site, the ‘scope’ of which included ensuring that the contractors had received proper training in concrete pumping. There was a ‘Code of Practice’ dealing with the task that had some statutory force as an ‘industry code of practice’ under the former Occupational Health and Safety Act 2000 (NSW) (OHSA 2000), and if it had been followed the accident could have been avoided. The High Court overturned the decision on duty of care and held that no duty was owed by either of the ‘head contractors’. There was a restatement (at [20] ff) of the general principle that principals do not owe the same duty of care to contractors as employers do to employees. The court concluded that it would be unrealistic to impose a duty of care on the head contractor of a building site to itself provide appropriate [page 260]

training to all contractors and employees of contractors who enter the site. The court said (at [52]): … a duty to provide training in the safe method of carrying out the contractor’s specialised task is inconsistent with maintenance of the distinction that the common law draws between the obligations of employers to their employees and of principals to independent contractors.

4.98 One theme that also restricts the expansion of the duty of care has started to emerge in recent decisions. This is that the courts will be reluctant to extend the duty of care in negligence where this would clash with existing legal principles of either common law or statute law that are designed to deal with other issues. This is really an example of the final criterion for duty of care in the summary of Deane J’s analysis in Jaensch given previously (at 4.4) — that of ‘absence of any exclusion of liability by statute, contract or other common law principle’. Sullivan v Moody (2001) 75 ALJR 1570 was an example in the High Court. There a claim was made that authorities investigating a report of child abuse owed a duty of care to people suspected of being perpetrators. The High Court rejected the claim, ruling that the procedures set up for reporting and investigating child abuse would be disturbed by the introduction of a separate duty of care to the suspects. Another example of the rejection of a duty of care due to concerns over ‘incoherence’ of the law can be found in CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47. There the High Court found that a publican did not owe a duty of care to a patron to monitor his drinking, or to prevent him leaving the hotel when drunk. The court held that to find a duty of care would have interfered unduly with Mr Scott’s ‘personal autonomy’ and introduced legal obligations which were ‘incoherent’ by clashing with other obligations (such as the duty of someone entrusted with personal property to redeliver that property when requested): see [38]–[40]. Hayne J said (at [52]):

… outside exceptional cases, which this case is not, persons in the position of the Proprietor and the Licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume.

Katter suggests that in light of the failure of other tests, the High Court in recent years has returned to the basic question posed by Lord Atkin in Donoghue v Stevenson: ‘whether the plaintiff was so closely and directly affected or was in such a close and direct relationship with the defendant that the defendant ought to have had the plaintiff in contemplation as being so affected’.100 This may indeed be the best we can say about the test for duty of care in novel cases. [page 261] 4.99 An attempt was made, however, to offer a review of the issue in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, where the Court of Appeal handed down an important judgment on the determination of a duty of care owed by a company which had exposed a worker to asbestos fibres, to the wife of a worker who had, by virtue of washing his asbestos-contaminated clothes for many years, been exposed to the substance and contracted mesothelioma. It is an important decision because it involves some detailed comments by two of the most senior members of the Court of Appeal (Allsop P and Basten JA) on the question of determination of a duty of care in novel cases. Without exhaustively detailing the case, the following is an outline of the events. Mr Stavar (the plaintiff’s husband) worked at an oil refinery run by Ampol (Qld) (the company later taken over by Caltex) from 1964 to 1991. During 1964 to 1974 he was an employee of another firm, and from 1974 to 1991 he was employed directly by Ampol. During the course of his work each

day his clothes became filled with asbestos fibres, and Mrs Stavar regularly washed these clothes. Expert evidence showed that it was likely that the cumulative effect of the asbestos exposure led to her disease. The trial judge had concluded that there was a common law duty of care owed to the employee’s wife during the time that he was an employee, from 1974 on. But he concluded that there was no duty owed to the wife while Mr Stavar was employed by another firm (effectively, as a contractor). 4.100 There was also consideration of the impact of the Asbestos Rule — a 1971 regulation of the Queensland Parliament (made under the Factories and Shops Act 1938 (Qld)), part of which (cl 18) provided that protective clothing should have been made available by the ‘occupier’ of premises where there was a danger from asbestos, and that the clothing should be cleaned in the factory. This regulation was used as evidence that the danger of families being harmed by asbestos if the work clothing was taken home was foreseeable. The Court of Appeal accepted the trial judge’s finding concerning the duty owed during the period of employment. But the court overturned the trial judge’s conclusion that no duty was owed when Mr Stavar was a contractor. One error that the trial judge had made was that in relation to this question he had applied some criteria set out by Basten JA in Sydney Water Corp v Abramovic [2007] NSWCA 248 at [96] ff (see 4.96) and found that not all the elements of the test used there were satisfied in this case. However, the Court of Appeal said that the criteria set out in the previous judgment were not exhaustive, and that a range of other matters needed to be considered. 4.101 Allsop P and Basten JA provided a lengthy analysis of what test should be adopted by a court in Australia today in determining the existence of a duty of care. Allsop P in particular says, in a passage worth noting (at [100]–

[106]): It can be accepted, however, that the President did not enunciate the required multifactorial approach in assessing whether a duty of care arose in a novel circumstance or category. This approach recognises what has been said to be the use of foreseeability at a higher level of generality and the involvement of normative considerations of judgment and policy. This approach requires not only an assessment of foreseeability,

[page 262] but also attention to such considerations as control, vulnerability, assumption of responsibility and nearness or proximity. The High Court has rejected its previously enunciated general determinant of proximity, the two-stage approach in Anns v Merton London Borough Council [1978] AC 728 based on reasonably foreseeability, the expanded three stage approach in Caparo Industries Plc v Dickman [1990] 2 AC 605 and any reformulation of the latter two, such as in Canada in Cooper v Hobart (2001) 206 DLR (4th) 193 … This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the ‘salient features’ or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. These salient features include: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

[page 263] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content. The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody at 579 [49]. The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment. I have described ‘foreseeability’ as a salient feature; it is perhaps better expressed that the use of salient features operates as a control measure on foreseeability employed at the level of abstraction earlier discussed, for example by Glass JA in Shirt as the foundation for the imputation of duty of care. In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as ‘proximity’ or ‘fairness’ do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility. [emphasis added]

This summary is being referred to regularly as an authoritative guide to the duty of care question, and will no doubt continue to be so, at least until the High Court changes its approach. 4.102 Basten JA also undertook a detailed review of the issue of duty of care: at [154]–[181]. The whole passage bears reading; for example, he made this interesting comment (at [172]): The multi-factorial approach should not, therefore, be treated as a shopping list, all the items of which must have application in a particular case. Rather, it provides a list of considerations which should be considered, as potentially relevant, depending on the kind of case before the Court. Further, it is necessary to distinguish between those considerations which are essentially factual, those which require value judgments and those which may require the application of legal policy.

In the end both judgments concluded that there was indeed a duty of care owed to the wife while the husband was an employee. On the issue of the duty of care owed to the wife in the earlier period, Basten JA agreed with Allsop P that his earlier comments in Abramovic had not been intended as a ‘precise checklist’: see [231]. It was arguable that the duty of the occupier could be described generally as a ‘duty to take reasonable care to prevent the escape of asbestos dust from its premises’ (at [236]); in which case it would be important to know whether anyone had been engaged to do this job. Allsop P also ruled that it was an error for the judge not to have applied the ‘multi-factorial’ test to the issue of the duty owed to the contractor’s wife. This second issue, then, was referred back to the Dust Diseases Tribunal (DDT) for further findings. [page 264] 4.103 Finally there was some comment made on the impact of the Asbestos Rule. Overall the court held that the rule was relevant to the existence of a common law duty of care, because it was evident that it was foreseeable that if clothing was not washed at

the factory harm might occur to others in the community: at [120], [216]. Still, as noted, the common law action for the period 1974–91 succeeded, and the matter was referred back to the DDT for a redetermination of the issue of duty of care owed while Mr Stavar was not an employee. 4.104 Having concluded our consideration of questions arising in determination of a ‘duty of care’, the first stage of analysis in the tort of negligence, we will turn to Chapter 5 for consideration of the second and third stages, breach and causation of damage, and then consider other issues that arise in negligence claims related to workplace actions. ___________________________________________

Answers to Stop and Think questions 4.1 You might like to draw up a table outlining the reasons that could be made — for and against. These are just some of the considerations that could be raised; you may well think of others. Whether or not a duty of care should be owed by a business operator to a contractor In favour The contractor has been put at risk in the financial interests of the principal, so the principal should be prepared to take precautions for their safety. The principal will usually have a high degree of control over working conditions, and the contractor will just have to accept these. The principal will usually be financially better off than the contractor. Etc

Against A contractor should take out their own insurance against risk, as they are running their own business. A contractor should have a high degree of skill in operating their own business, and should be able to assess their own risks. But the contractor will usually have their own insurance! Etc

Further Reading General R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Australia, 2013. K Barker, P Cane, M Lunney and F Trindade, The Law of Torts in Australia, 5th ed, Oxford University Press, South Melbourne, 2012. C Beuermann, ‘Tort Law in the Employment Relationship: A Response to the Potential Abuse of an Employer’s Authority’ (2014) 21 Torts Law Journal 169–94. [page 265] S Blay et al, Torts Law in Principle, 4th ed, Lawbook Co, Pyrmont, 2005. A Clarke and J Devereux, Torts: A Practical Learning Approach, 2nd ed, LexisNexis Butterworths, Australia, 2011. M Davies and I Malkin, Focus:Torts, 6th ed, LexisNexis Butterworths, Australia, 2012. N Foster, ‘Another Tale of Two Divers’ (2006) 14 Torts Law Journal 115–23. J Goldring, ‘The Civil Liability Act 2002 (NSW)’ (2003) 6(3) Judicial Review 273–312. D Hodgson, ‘Suicide and the Law of Intervening Causation’ (2008) 16 Tort Law Review 69. N Katter, Duty of Care in Australia, LBC Information Services, Pyrmont, 1999. N Katter, ‘“Who Then in Law Is My Neighbour?”:

Reverting to First Principles in the High Court of Australia’ (2004) 12 Tort Law Review 85–97. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Australia, 2013. F McGlone and A Stickley, Australian Torts Law, 2nd ed, LexisNexis Butterworths, Australia, 2009. C Sappideen and P Vines (eds), Fleming’s The Law of Torts, 10th ed, Lawbook Co, Pyrmont, 2011. D N Seeto, ‘Shock Rebounds: Tort Reform and Negligently Inflicted Psychiatric Injury’ [2004] Sydney Law Review 14. P Stewart and A Stuhmcke, Australian Principles of Tort Law, 3rd ed, Federation Press, Sydney, 2012. Negligence in the workplace C Brennan, ‘Psychiatric Injury: A Deterrence Perspective’ (2004) 20 Professional Negligence 41–57. A Brooks, ‘Employment’, Title 165 in Halsbury’s Laws of Australia, vol 10; esp [165-395]–[165-450]. A Brooks, Occupational Health and Safety Law in Australia, 4th ed, CCH, North Ryde, 1993, Ch 2. B Cotter and D Bennett, Munkman on Employer’s Liability, 15th ed, LexisNexis, London, 2009; esp Chs 2–7 on civil liability. J Elvin, ‘The Legal Response to Occupational Stress Claims’ (2008) 16 Tort Law Review 23–38. N Foster, ‘Convergence and Divergence: The Law of Nondelegable Duties in Australia and the United Kingdom’ in A Robertson and M Tilbury, Divergences in Private Law, Hart, Oxford, 2016. N Foster, ‘Deemed to Be Workers for Common Law Action’ (2008) 46(1) Law Society Journal 68–9.

N Foster, ‘Personal Civil Liability of Company Officers for Company Workplace Torts’ (2008) 16 Torts Law Journal 20–68. N Foster, ‘Psychiatric Injury Following Workplace Trauma or Death: Actions by Fellow-workers and Relatives in New South Wales’ (2004) 12 Tort Law Review 59–63. [page 266] N Foster, ‘Psychiatric Workplace Injury and Breach of Duty: New South Wales v Fahy’ (2007) 15(3) Torts Law Journal 227. H H Glass, M H McHugh and F M Douglas, The Liability of Employers in Damages for Personal Injury, 2nd ed, Law Book Co, Sydney, 1979, (previously the major text in the area for Australia — note that one of the authors went on to become a judge of the Supreme Court of New South Wales, another a High Court justice; unfortunately, now slightly dated). R Johnstone, E Bluff and A Clayton, Work Health and Safety Law and Policy, 3rded, Law Book Co, Pyrmont, 2012, pp 790–819.

1.

See Luke’s Gospel, Ch 10, verses 25–37. The parable continues to be referred to in subsequent cases: see Hargrave v Goldman (1963) 110 CLR 40 at 66 per Windeyer J; Pyrenees Shire Council v Day (1998) 72 ALJR 152 at [101] per McHugh J. Indeed, the term ‘Good Samaritan’ has now become so widely used that it is adopted as the official heading to Pt 8 of the Civil Liability Act 2002 (NSW), dealing with the liability of those who voluntarily come to the assistance of others in need.

2.

Deane J referred to the concept of ‘proximity’ in his original judgment. But since, as we will see later, the courts no longer use this concept, it has been removed from this overall summary. The other elements of the quote all remain relevant. See also the brief summary of the law in Czatyrko v Edith Cowan University [2005] HCA 14 at [12].

3.

4.

See R Johnstone, E Bluff and A Clayton, Work Health and Safety Law and Policy, 3rd ed, Lawbook Co, Pyrmont, 2012, [2.90]–[2.100] for a general review of the doctrine and its demise.

5.

6.

Although, surprisingly, in Smith v ANL Ltd [2000] HCA 58 the members of the High Court involved assumed that the doctrine might still be a part of the common law: see [19] (Gaudron and Gummow JJ), adopted by Hayne J (at [117]); [84]–[86] (Kirby J). Still, specific statutory provisions like the one mentioned in note 6 below applied to exclude the operation of the rule in the particular case, and it seems hard to imagine a situation in Australia today where the rule would not be excluded by some such provision. Following the hint in Kirby J’s comments (at [86]), it may be that should the issue be presented directly today the High Court might be disposed to reconsider whether or not it still forms part of the common law. Presently s 151AA of the Workers Compensation Act 1987 (NSW).

7. 8.

See White v Malco Engineering Pty Ltd [1999] NSWSC 1055 at [467]. See TNT Australia Pty Ltd v Christie [2003] NSWCA 47 at [67]–[68].

9.

It has to be said, though, that there is still an unfortunate tendency for courts to not focus on the real issues here. In cases of non-delegable duty, the employer is being held liable not for their own failures, but for the carelessness of the contractor. Yet the quotes above from Pollard and Barahona focus on what the employer failed to do. See C Beuermann, ‘Tort Law in the Employment Relationship: A Response to the Potential Abuse of an Employer’s Liability’ (2014) 21 Torts Law Journal 169–94.

10. 11.

12.

13.

14.

Hence there can be doubt about the correctness of two recent decisions holding that employers in these situations did not owe a non-delegable duty of care — see Wright v Optus Administration Pty Ltd [2015] NSWSC 160 at [147]–[148]; Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260 at [77], [84]. Some of these issues are discussed in the book chapter by Foster (2016) noted in the Further Reading list at the end of this chapter. See P Edmundson and P Stewart, ‘Liability of a Holding Company for Negligent Injuries to an Employee of a Subsidiary: CSR v Wren’ (1998) 6 Torts Law Journal 123 for analysis. Traditionally a contract of apprenticeship was not precisely a contract of employment — it was called an ‘indenture’. However, for most statutory purposes, apprenticeship arrangements are these days treated as if they are contracts of employment. In a decision of the Industrial Relations Commission, Decision 205/1993; [1993] 205 IRCommA, the Commission considered the law on this area and concluded that the better view is probably that the common law should today regard an apprentice, except in rare circumstances, as an employee. The Commission commented: ‘Even if it could be said, and it has been doubted [Re Marryat Westminster Bank Ltd v Hebcroft (1948) 1 Ch 298 at 311 per Jenkins J], that there was in the mature Common Law a strict distinction between the relationship of an apprentice and that of an employee to their respective employer, the situation has changed in the last 90 years.’ Sneddon v Speaker of the Legislative Assembly [2011] NSWSC 508. The subsequent appeal in Sneddon v New South Wales [2012] NSWCA 351 did not disturb this

finding of an NDD owed by the Speaker — see [139], [141] noting the finding. 15. 16.

Ibid, at [244]–[246]. Galea v Bagtrans Pty Ltd [2010] NSWCA 350; [2011] Aust Torts Reports ¶82-078.

17. 18.

Ibid, at [5]–[6]. However, as noted in Chapter 3, an employer’s duty to a labour hire worker who is effectively working next to employees and under the same conditions, was held to be non-delegable in TNT Australia Pty Ltd v Christie [2003] NSWCA 47.

19. 20.

See the discussion of the earlier case by Wood J in Hetherington: at [164]–[167]. See the judgment of Cooper AJ: at [126].

21.

See [31]–[35]. The High Court refused to grant special leave to appeal: Australian Postal Corporation v Wooby [2013] HCASL 212. See Heydon JA: at [53].

22. 23.

24.

Another case where a claim for injury by an employee of a subcontractor, against the head contractor, failed was Anyco Pty Ltd v Kleeman [2008] WASCA 30. However, the claim failed not because of the issue of duty of care, but because the Court of Appeal held that it had not been shown that the failure to provide training in the use of a safety harness had actually caused the injury (that is, that the employee would have worn the harness even if trained.) We will see below (at 5.42) that causation is another important element of the tort of negligence. See also Jeffs v Rio Tinto Ltd [2010] NSWSC 1046 where the company in charge of operating a coal mine were held to have a duty of care to a labour hire worker who in practice was supervised by the coal mining company, and supplied with safety training and relevant equipment by that company; see especially the discussion at [81]–[97].

25. 26.

See Meagher JA: at [39]–[40]. See [118]–[119].

27. 28.

See [26]–[45]. Presumably in that case, though, there would have to be some additional factors creating some ‘close and direct relationship’ above and beyond the simple employer–employee relationship.

29.

The law on psychological injury has changed in recent years in cases where the claim is made, not by an employee, but by someone else such as an independent contractor. This follows the passing of the Civil Liability Act 2002 (NSW). We will consider the impact of these provisions below at 4.62 ff. However, for reasons mentioned there, the law as applicable to employees has not been affected by these changes. This is generally accurate, but there is a small class of independent contractors whose negligence actions may not be subject to the CLA. See 5.88 and the footnotes to that paragraph for discussion.

30.

31.

32.

See Chapter 5 at 5.4 ff for discussion of the concept of a ‘real chance’. In short, it does not have to be more likely than not, but simply something which is not ‘fanciful or far-fetched’. It may possibly be otherwise in the United Kingdom (see Page v Smith [1996] AC

155); although in Coleman v British Gas (QBD, 27 Feb 2002) a claim for psychological injury was rejected partly on the basis that this sort of injury was not foreseeable. More recently, the decision of the House of Lords in Simmons v British Steel Plc 2004 SLT 595; [2004] UKHL 20 at [18], [67] reaffirmed the rule in Page v Smith. 33. 34. 35.

36. 37. 38.

39. 40.

There is a good review of ‘occupational stress’ claims under English and Australian law in the article by J Elvin in the Further Reading list at the end of this chapter. There is a useful discussion of this decision in J Dietrich, ‘Nervous Shock: Tame v NSW and Annetts v Australian Stations Pty Ltd’ (2003) 11 Torts Law Journal 11–19. Note that the courts distinguish this from what they call a ‘normal grief reaction’. In the pithy phrase of Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394: ‘Sorrow does not sound in damages.’ See Tame (2002) at [7] per Gleeson CJ. See his Honour’s further elaboration of this point at [46]–[51] of his judgment. For discussion of the operation of the repealed s 151P, see 4.35 in the first edition of this text, at pp 202–3. At [24] per Priestley, Beazley and Stein JJA (although it should be noted that this last comment was more in the nature of an aside rather than a fully reasoned judgment). See also Pham v Lawson (1997) 68 SASR 124, a decision of the Full Court of South Australia allowing recovery without ‘direct perception’. See also Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33, for example per Gleeson CJ (at [5]), confirming that since Tame (2002) ‘direct perception of an incident or its aftermath is not in all cases a necessary aspect of a claim for damages for negligently inflicted psychiatric injury’.

41. 42.

See above at 4.32, for this essential criterion. For more details, see the article by N Foster (2004) in the Further Reading list at the end of this chapter.

43.

In McMaster Beazley P notes (at [10]) that s 4 continues to be available in these circumstances due to the operation of Sch 1, cl 11 of the CLA, noted above. This comes about because the CLA s 3B(1)(a) makes that Act generally not applicable to actions based on an act done ‘with intent to cause injury or death’. See Lord Slynn (at [10]): ‘If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee.’ Interestingly, in his judgment (at [12]) his Lordship cites Mount Isa Mines Ltd v Pusey as authority for the fact that foreseeable psychological harm is covered by the principle. See also Lord Hutton in Waters: at [32].

44.

45.

In New South Wales v Jeffery [2000] NSWCA 171 the Police Service were found liable for psychological harm caused by harassment by a police officer of an employee of the PCYC (a voluntary organisation partly run by the police). While the court did not consider the issues mentioned above in detail, Foster AJA commented (at [39]): ‘The type of abuse to which the sergeant subjected the plaintiff would, in my view,

46. 47.

48.

49.

50. 51.

52.

53. 54.

55. 56.

57.

clearly carry with it the possibility of psychological injury. Such harm was well within the area of foreseeable risk (Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383).’ More recently, see Mannall v New South Wales [2001] NSWCA 327 where the possibility of such an action was reaffirmed, following Seedsman. See especially the discussion by Gummow and Kirby JJ (at [204]–[213]), and comments by Gleeson CJ (at [18]), and Gaudron J: at [66]. For a set of facts where it seems likely that a duty of care would be owed to rescuers, see Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22. In that case police officers were involved in the aftermath of a serious rail accident. However, that decision of the High Court simply ruled that an apparent statutory bar against recovery found in the Civil Liability Act 2002 (NSW) did not apply to the action; it did not definitely rule on the existence of a duty of care, leaving that matter to be determined by the New South Wales Court of Appeal to whom the case was remitted for further proceedings. See the concurring remarks of Gleeson CJ (at [16]) and Gaudron J: at [62]. Three of the members of the court would have preserved the requirement for ‘normal fortitude’ as a separate rule: see McHugh J (at [109]), Hayne J (at [273]) and Callinan J: at [334]. Consistently with this approach, in Hunter v British Coal Corp [1998] 2 All ER 97, a coal miner was unable to recover damages for psychiatric injury occasioned by the death of a co-worker in an underground explosion; although that case also had the feature that the miner was not present at the scene of the explosion, even though he was told of the death only 15 minutes after it occurred. See McMurdo P in Hancock v Wallace [2001] QCA 227 at [2] n 3. Note that Davies JA in Hancock v Wallace [2001] QCA 227 makes the same point: at [53]. That is, while White may suggest that the special ‘control mechanisms’ governing recovery for nervous shock are applicable to psychological injury in the workplace, McHugh J believes that these control mechanisms are not applicable, and that psychological injury will be treated in the same way as other types of injury. For further discussion of this important case as it relates to the United Kingdom see B Barrett, ‘Clarification of Employer’s Liability for Work-related Stress’ (2002) 31 Industrial Law Journal 285–94. The internal paragraph references are to previous paragraphs in the judgment. The article by C Brennan (2004) noted in the Further Reading list at the end of this chapter points out that this list of factors to be considered seems to have been consciously drawn up as a guide, not only for lawyers and judges, but also for employers seeking to know how they can avoid this sort of liability. See, for example, Lord Walker of Gestingthorpe (at [63]) (with whom Lords Bingham and Steyn agreed); Lord Scott of Foscote: at [5]–[7]. In New South Wales v Fahy [2007] HCA 20 (discussed in more detail below at 4.59) Gleeson CJ (at [5]) also generally expressed support for the guidelines laid down by Hale LJ in Hatton v Sutherland. As we will see in later chapters when we come to consider the Model Work Health

and Safety Act 2011, in which the definition of ‘health’ in s 4 includes ‘psychological health’. 58.

59.

60.

61.

62.

63. 64.

See the excellent comments on this decision by P Handford, ‘Work Stress: Retreat or Revolution?’ (2005) 13 Tort Law Review 159, and D Rolph, ‘No Worries? Employers’ Duty of Care for Negligently Inflicted Stress’ (2005) 18 Australian Journal of Labour Law 344. See discussion of this case and Koehler in D Butler, ‘Psychiatric Injury in the Workplace: Directions for Cases Involving Stress or Bullying’ (2006) 14 Torts Law Journal 124–34. It should also be noted that in Naidu, while Basten JA agreed with Spigelman CJ that the claim in negligence should fail, Beazley JA dissented and would have found the company ISS, the employer, liable for not taking steps when the course of harassment became clear. For further discussion of the Fahy decision see N Foster, ‘Psychiatric Workplace Injury and Breach of Duty: New South Wales v Fahy’ (2007) 15(3) Torts Law Journal 227. R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, at [7.42] do suggest that this wording might be more restrictive than the common law because it might fix the state of ‘recognised’ illnesses as at the date of the CLA. Arguably, however, ‘recognised’ would mean ‘recognised when the issue arises in court’. Balkin and Davis, note 62 above, at [7.48] agree: ‘[T]he provisions of the legislation remain restrictive.’

65.

See Wicks (at 4.62) where the High Court comments (at [26]) that the legislation relating to ‘normal fortitude’ is ‘contrary to what was decided in Tame’. See Kourakis CJ (at [1]–[4]), Gray J (at [31]), Stanley J (at [107]–[108]).

66. 67.

See [88] (Campbell J). Ibid.

68. 69.

Ibid, at [83]. An example of the approach of the common law courts can be seen in the decision of the Canadian Supreme Court, Martel Building Ltd v Canada [2000] SCC 60, which held that there was no duty of care in commercial negotiations to look out for the economic interests of the other party. See also Her Majesty’s Commissioners of Customs and Excise v Barclays Bank plc [2006] UKHL 28, for discussion of recovery for economic loss by the House of Lords.

70.

For coverage of the issues, see the standard torts texts: for example, Luntz, Hambly, Burns, Dietrich and Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2013, Ch 16.3. For more on this and the next topic (liability for inspectors) see A Brooks, Occupational Health and Safety Law in Australia, 4th ed, CCH, North Ryde, 1993, Ch 4.

71.

72. 73.

See also Griffiths v Arch Engineering Co (Newport) Ltd [1968] 3 All ER 217; Fisher v Harrods Ltd [1966] 1 Lloyd’s Rep 500. Evidence for this greatly abbreviated summary of the ratio of these cases may be

found, for example, in the judgment of Kirby J in Jones: at [237], [252]. 74.

75. 76.

77. 78.

79.

The Court of Appeal relied heavily on the reasoning in Anderson v Enfield City Corporation (1983) 34 SASR 472, a South Australian case in negligence with similar facts. Fair Trading Act 1987 (NSW) s 42. However, as the plaintiff did not rely on s 75AD in her initial statement of claim, she was not allowed to introduce it as a possible ground of liability at the appeal: see [24]. For discussion of the operation of s 75AD, although not in a workplace context, see Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853. See also the older case of Lanza v Codemo [2001] NSWSC 72, where the fact that the worker, who was an employee, had received statutory compensation amounts already, precluded completely any action under Pt VA of the former TPA. Elms v Ansell Ltd [2007] NSWSC 618 and Middleton v Erwin [2009] NSWSC 108 at [85] followed Lanza with a similar result. See also the later case of Woollahra Corp v Sved (1996) Aust Torts Rep ¶81-398; (1996) 40 NSWLR 101.

80. 81.

Brooks, note 71 above, p 415. The effect of this decision in the specific area of ‘land contamination’ has now largely been negated by amendments to the Environmental Planning & Assessment Act 1979 (NSW). But the general principle, that a government official may be negligent in their failure to carry out a duty to inspect for safety, is still valid.

82.

For general discussion of the case, see The Hon J Doyle and J Redwood, ‘The Common Law Liability of Public Authorities: The Interface Between Public and Private Law’ (1999) 7(1) Tort Law Review 30–51 at 47–50. While not entirely clear, it seems that the remaining judge, Brennan CJ, based his decision not on the general law of negligence but on the tort of ‘breach of statutory duty’, which will be discussed in Chapter 6.

83.

84.

85.

See, for example, the comments of the joint judgment in Brodie (at [162]): ‘The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of matériel and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed.’ In Lovric v WorkCover Authority of New South Wales (No 2) [2008] NSWSC 376, a claim against a second defendant was struck out. It is not known whether a full trial of the claim against WorkCover followed, or whether the parties settled.

86. 87.

Salomon v A Salomon & Co Ltd [1897] AC 22. The case which is the starting point here is Rainham Chemical Works Ltd (in liq) v Belvedere Fish Guano Co Ltd [1921] 2 AC 465.

88.

Many cases cite the decision of Lindgren J in Microsoft Corporation v Auschina Polaris

89.

90. 91.

92. 93. 94.

95.

96.

97. 98.

Pty Ltd (1996) 71 FCR 231 as authority for this proposition. See the comments of Lee J in King v Milpurrurru (1996) 136 ALR 327 at 337: ‘such implied direction or procurement is to be found in the approval of, or acquiescence in, that wrongful act, inferred from the breach of duty by the director the circumstances of which support the conclusion that the director has refused to enquire, or to act, to avoid learning, or dealing with, the obvious.’ Although it should be noted that there are a number of cases imposing personal liability on directors in the case of other torts, breach of copyright in particular. The restrictions of the Workers Compensation Act 1987 (NSW) on common law actions are confined to actions against the ‘employer’: see s 151E. As a result other actions may avoid these restrictions. Some High Court decisions illustrate that where parliament cuts off access to actions against employers, other defendants will be sought: see Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, and Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6, where a worker sued the manufacturer of equipment he was installing when injured. For more detailed discussion see N Foster, ‘Personal Civil Liability of Company Officers for Company Workplace Torts’ (2008) 16 Torts Law Journal 20–68. See, for example, the comments of Kirby J in Pyrenees Shire Council v Day (1998) 72 ALJR 152 at [238]. The authority at the time, the Australian Stevedoring Industry Authority, was later abolished and replaced by the SIFC; an issue arose as to whether the SIFC had ‘inherited’ the legal obligations of the earlier body, but all the members of the High Court who found that there was a duty of care held that the appropriate ‘inheritance’ had occurred so that the SIFC could be sued. A government body, like any member of the public, must act with care, when it takes some positive action, to avoid foreseeable personal injury in its activities. For example, in Coote v Forestry Tasmania [2006] HCA 26 an officer of a government body that supervised logging was found to have given a direction to a logger not to follow certain precautions that he would normally have followed in felling a tree. The logger was then injured as a consequence of not following these precautions. This failure of the officer in exercising his powers was held to have been negligence for which Forestry Tasmania was liable. Some previous cases had suggested that a government body could only be liable for ‘operational’ decisions, and not decisions which established an overall ‘policy’ for a particular situation. But the line between these areas is hard to draw sometimes. For further discussion of the issues see P Vines, ‘The Needle in the Haystack: Principle in the Duty of Care in Negligence’ (2000) 23 UNSW Law Journal 35–57. In another very similar case the New South Wales Court of Appeal also found the SIFC liable: Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179. A Court of Appeal decision in the United Kingdom found a statutory body responsible for organising dockside labour also owed a duty of care to waterside workers in relation to the use of asbestos: see Rice v Sec of State for Trade and Industry [2007] EWCA Civ 289.

99. See Basten JA (at [47]–[49]) and Sackville AJA (at [72]–[73]). 100. N Katter, ‘“Who then in Law is my Neighbour?”: Reverting to First Principles in the

High Court of Australia’ (2004) 12 Tort Law Review 85–97 at 97. See the Further Reading list at the end of this chapter.

[page 267]

5 PROTECTION OF WORKPLACE SAFETY UNDER TORT LAW — NEGLIGENCE: OTHER MATTERS

Aims The aims of this chapter are: to continue discussion of the elements of the action of negligence in relation to workplace injuries, by dealing with the issues of breach and causation; to consider defences that may be available to such an action; and to outline the limits placed by statute on workplace negligence claims.

Objectives After completing this chapter, you should be able to: describe the ‘calculus of negligence’ and other issues involved in determining breach and causation in workplace negligence claims; and

have some understanding of possible defences, and the statutory limits on recovery which will need to be taken into account in determining whether a workplace negligence action is appropriate.

Negligence: breach, causation and damages 5.1 In Chapter 4 we saw that to establish a claim of negligence a plaintiff must prove that there is: 1. 2. 3.

a duty of care; a breach of that duty; and damage which is caused by the breach.

In that chapter we examined the area of ‘duty’, and found that whether or not there is a duty of care depends on the type of injury that might occur and the relationship between the parties. For the purposes of this book, one clear and well-established duty is the duty owed by an employer to take reasonable care for the safety of employees at work. We have seen that there are other well-established categories of duty, and also that in the last resort the court might find a ‘new’ duty of care by applying the ‘salient features’ test. [page 268] We will now look at the next issue — how a breach of duty is established — and then consider the final element of causation. We will conclude the chapter by considering defences, damages and recently imposed statutory limits on the common law action for negligence in the workplace.

Breach of duty 5.2 The question that arises in relation to the breach of duty issue is: when will someone be regarded as having been so careless or negligent that they have been in breach of their duty of care? Either personal or vicarious breach 5.3 Remember that in an action for negligence it will be necessary to show that there was some breach of duty, some carelessness, by somebody. But the carelessness may be shown to be either that of the employer, or that of a fellow employee for whom the employer is liable, or may even be shown to be carelessness on the part of an independent contractor (if a ‘nondelegable duty’ is involved). In Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181, for example, the worker was injured by a splinter of metal flying off a pick which was being struck by a sledgehammer. In arguing his case the plaintiff alleged that the employer was negligent in not providing a safe system of work. This was met by the claim that the system adopted, that of hitting the pick with the sledgehammer, was not one prescribed by the employer, and was indeed prohibited by the employer. The High Court found for the plaintiff on the basis that even if the employer had not approved the system, the worker’s fellow employees, for whose negligence the employer was vicariously liable, nevertheless adopted it.1 The majority said (at 209): … the issue was whether the method by which work was being undertaken in proximity to the plaintiff was such as to show a lack of reasonable care for the safety of the plaintiff … that method was what caused his injury and it was irrelevant whether it was approved of by the defendant or was, instead, adopted, even against its will, by some person or persons for whose acts or omissions it was vicariously liable.2

Nevertheless, there must be some negligence of someone. When several members of the New South Wales Supreme Court tried to suggest that the employer’s liability these days was more like ‘strict

liability’, the High Court rejected their remarks: see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. However, they agreed that due to changing community attitudes the appropriate standard of care might be progressively increased over the years (at 308–9): [page 269] … what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community … What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer.

Foreseeability 5.4 The first thing that must be established in the case of breach is that the incident in question must have been foreseeable: that is, seen beforehand as a possible occurrence by someone who was thinking about the consequences of their actions. This is not a very high standard. It does not mean that the accident must have been likely; simply that it was one of the possible outcomes of the actions of the defendant. In Wyong Shire Council v Shirt (1980) 146 CLR 40 (Shirt), for example, the local council had dredged a channel at the bottom of a lake to provide access from a jetty to the centre of the lake. Next to the channel a council employee had put a sign saying ‘Deep Water’. The plaintiff, Mr Shirt, was an inexperienced water-skier. He saw the sign and assumed that it meant that the whole lake was deep, and so safe to water-ski on. Near the edge of the lake he came off his water-skis in shallow water and was seriously injured. The High Court upheld the jury verdict in favour of the plaintiff. They said that even though it was not likely that such a thing would happen, it was foreseeable as a possible outcome. The

court said that so long as something was not ‘far-fetched or fanciful’ it would usually be regarded as ‘foreseeable’. 5.5 We can see this illustrated in Table 5.1, which I have called the ‘Foster spectrum of foreseeability’. (Disclaimer: this table has not been derived from any court decision and hence in itself is not authoritative; however, it seems to represent the way that courts have approached the issues overall.) Table 5.1: Impossible

‘Foster spectrum of foreseeability’ (common law) ‘Farfetched and fanciful’

Insignificant Unlikely chance (less than 50% probability)

More likely Highly Certain than not probable (more than 50% probability) Foreseeable under common law standard after Shirt (more than far-fetched or fanciful)

You will see that the categories in the table move from ‘impossible’ at one end to ‘certain’ at the other. You can supply your own examples here, but, for instance, you could class as ‘impossible’ events such as ‘a blue unicorn will walk into the room now’ and as ‘certain’ a proposition like ‘the sun will rise tomorrow’. It is a practical rather than a philosophical analysis. Yes, the world might end tonight and the sun may not rise tomorrow; yes, some scientist may have genetically engineered a horse to grow a [page 270] horn and turn blue. However, for the purposes of ordinary life, we live as if one were certain and the other impossible. In between the extremes of impossible and certain lie other events. The vertical dark line represents the 50% mark. Events to the right of that line are ‘probable’, ‘more likely than not’. In a gambling context, it would be a good bet that these events will

happen. To the left of that line there is a range of events that are more or less not likely to happen. The bottom row identifies the standard of foreseeability at common law. The common law standard is that anything that is not ‘far-fetched or fanciful’ is sufficiently foreseeable to be considered for the purposes of negligence. It does not mean that someone will automatically be liable if that event occurs; we still need to consider the question of breach and the response of the reasonable person. But if the occurrence of the event is more than far-fetched or fanciful the risk of it happening must at least be taken into account. 5.6 The New South Wales Court of Appeal followed this approach in Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1 (Mihaljevic). There an experienced driller, Mr Mihaljevic, who had previously injured his back slightly, complained to his supervisor that the ground into which he was required to drill was too hard for him to do the work by himself, and requested an assistant. The supervisor refused his request. Shortly afterwards, when struggling to loosen part of the drill that had become wedged, he seriously injured his back. Kirby P discussed the issue of foreseeability in his judgment (at 11): The requirement of the foreseeability of ‘some kind’ of damage itself represents, as McHugh JA points out in Bankstown Foundry Pty Ltd v Braistina, a change in legal doctrine … the Judicial Committee of the Privy Council in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 following Lord Reid’s observations in the House of Lords in Koufos v Czarnikow Ltd [1969] 1 AC 350 adopted what Glass JA in this Court in Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641 described as an ‘undemanding’ test. This holds a defendant liable for causing damage even though the way the damage occurred is ‘extremely unlikely’ and may be described as ‘only a remote possibility’ … the ‘undemanding’ test is the one binding on this Court.

The injury need not be ‘more likely than not’; it need simply be a real risk as opposed to something ‘far-fetched and fanciful’. His

Honour’s full discussion of this area (at 8–13) is a good summary of the current law relating to an employer’s liability. 5.7 On the other hand, there are some cases in which the risk is so unlikely that it will be regarded as unforeseeable. In the area of workplace injury, the decision in Wright v New South Wales [2006] NSWCA 152 is a good example of the requirement to find foreseeability. The plaintiff was a police officer who was based at Coonabarabran in the west of New South Wales, but who was directed by his superiors to travel further west to Bourke for a week to assist in some investigations. While in Bourke he went fishing in the evening and was bitten by mosquitoes, from which he later contracted Ross River Fever. His action for common law damages (on the basis that the Police Service [page 271] should have warned him of the dangers of contracting the disease before sending him to Bourke) failed on the basis that it could not be shown that there was any greater likelihood that infectious mosquitoes would be found in Bourke than in any other part of the state: see [37]–[38]. It is interesting to note that the decision was not based on the fact that the injury was caused outside working hours. The Court of Appeal implied that if there was some foreseeable danger at Bourke then the Police Service might have been liable, even if the danger only eventuated after hours, as it had required the plaintiff to travel there for work purposes: see [17]–[19]. But in the end, as there was no greater risk of infection at Bourke than at Coonabarabran, it was not foreseeable that the plaintiff would suffer this harm by being sent to Bourke. 5.8 Another example of a case where a claim failed because the harm concerned was not foreseeable was Seage v New South Wales

[2008] NSWCA 328. The plaintiff, a senior police officer who was involved in reorganising a section of the police station, was injured when attempting to move a heavy desk. The evidence showed that this activity was not a normal part of his duties. McFarlan JA commented (at [28]–[29]): Leaving aside for the present the particular circumstances that gave rise to the injury in question in these proceedings, my view is that the risk of the appellant (or one of the other senior members of the police force at the Wollongong Police Station) undertaking by himself the removal from one place to another of a heavy desk and thereby injuring himself was not one which met the not insignificant risk test. Important in this context is the fact that the appellant was in a senior supervisory position having some 27 detectives under his control. It was not part of ordinary policing duties for desks or other furniture to be moved around the work premises although no doubt there was always, as there would in any workplace, be the possibility that that would occur. It could not in my view be concluded that the appellant’s employer should have reasonably foreseen a not insignificant risk of the appellant (or other member of the police force of his seniority) taking upon himself, particularly without assistance from any others, the performance of the relatively menial task of moving an obviously heavy desk. The presence at the police station of a large number of detectives (quite apart from other ranks) would have emphasised the unlikelihood of the appellant doing this. It seems only to have been a fit of anger which led the appellant to do what he did.

While the test adopted was whether the action of the worker was a ‘not insignificant’ risk (because the case was governed by the provisions of the Civil Liability Act 2002 (NSW) (CLA), to be discussed at 5.98), this is effectively very similar to the simple common law question: was the risk foreseeable? 5.9 It should be noted that the above statement of the law on foreseeability (that something is foreseeable if not ‘far-fetched and fanciful’) has been under increasing criticism in recent years from those who have suggested that it lies behind an unsustainable increase in negligence actions. This view received some support in Tame v New South Wales [2002] HCA 35, where McHugh J argued that this ‘undemanding’ test of foreseeability should be changed. His Honour’s comments have not, however, [page 272]

received the general approval of other members of the High Court. Indeed, in the more recent decision of the court in New South Wales v Fahy [2007] HCA 20 (Fahy), four out of seven members of the court made it clear that they supported the ‘not far-fetched and fanciful’ standard expressed in Shirt: see Gleeson CJ (at [7]), Gummow and Hayne JJ (at [78]), Kirby J: at [129]–[133].3 But to some extent, as we will see below at 5.98, the concerns expressed by McHugh J are reflected in recent statutory changes to the law of negligence as it applies in areas covered by the CLA. ‘Calculus’ 5.10 Even on the orthodox analysis of foreseeability, however, a person is not necessarily liable for any possible outcome of their actions, however improbable and however slight the risk. The courts have imposed controls on potential liability by referring to a ‘calculus’ or rough formula that was spelled out in the Shirt case. In determining how careful someone should be, the courts have adopted a ‘calculus’, which involves weighing up: the magnitude of the risk involved; the degree of probability of its occurrence; the expense, difficulty and inconvenience of taking alleviating action; and any other conflicting responsibilities. 5.11 It is important not to regard the ‘calculus’, despite its popular name, as representing some type of mathematical certainty. As Gleeson CJ said in New South Wales v Fahy (at [6]): What is involved is a judgment about reasonableness, and reasonableness is not amenable to exact calculation.1 The metaphor of balancing, or weighing competing considerations, is commonly and appropriately used to describe a process of judgment, but the things that are being weighed are not always commensurate. As was pointed out in Mulligan v Coffs Harbour City Council,2 there are cases in which an unduly mathematical approach to the exercise can lead to an unreasonable result. 1.

See Ridge v Baldwin [1964] AC 40 at 65.

2.

(2005) 223 CLR 486 at 490 [2].

Nevertheless, so long as too much precision is not attributed to the process, we will continue to use the word ‘calculus’ to describe the balancing of various considerations that the courts undertake in determining whether or not there has been a breach of the duty of care. [page 273]

Stop and Think 5.1 Consider the situation in your workplace, or, if you are not in a workplace, around your home. Select four different examples of ‘risk’ and plot them in the following table. Two (not very serious) examples are provided. Hopefully this exercise will give you an idea of the sort of calculus that employers (and the courts) are forced to consider. (Since you will be providing your own situations for consideration, there are no ‘answers’ supplied at the end of the chapter.)

Table 5.2:

Application of the Calculus of Negligence

Risk The roof might fall in

A worker might poke themselves with a sharp pencil

Magnitude of harm Very high

Probability

Not very high

Fairly low

Very low

Expense of removal Complete removal of roof — very expensive Not great — just keep pencils blunt

Other responsibilities Need to keep rain off employees Unable to read employee’s reports

The calculus was applied, for example, in Miletic v Capital Territory Health Commission (1995) 130 ALR 591. There a housemaid cleaning the nurses’ quarters at a hospital injured her back when trying to roll a bed that was on castors. The castors were clogged with dust. The employer was found liable. While the probability of serious injury was low, the High Court found that a very easy and inexpensive maintenance technique would have removed the risk altogether. In particular, given the high standard of attention to possible safety risks expected of an employer, the employer was negligent. In general, then, a reasonable person will take precautions against foreseeable risks that, even though unlikely, are capable of causing severe consequences for others, especially if the precautions that could be taken to ameliorate these risks are not particularly costly. 5.12 Whether or not the injury was preventable is one of the major issues in workplace safety litigation. Kirby P (at 12) expressed it Mihaljevic (see 5.6) as follows: If the duty is established, the breach shown to be foreseeable … and the case is not one where the risk was so small that the employer is justified to disregard it, it remains for the employee to prove that the means of obviating the possibility so disclosed was available and would have been adopted by a reasonable employer.

[page 274] The comment that the onus is on the employee to prove that there was a safer way of doing the job has been challenged from time to time, but remains the law in New South Wales. Kirby J himself challenged this concept in the later case of Kingshott v Goodyear Tyre & Rubber Co Aust Ltd (No 2) (1987) 8 NSWLR 707. But the majority in that case, Priestley and McHugh JJ, held that it

was still up to the plaintiff to show that some other way of doing the work was safer.4 The principle was reaffirmed by the New South Wales Court of Appeal in Telfer v Berkeley Challenge Pty Ltd [2000] NSWCA 24, where Powell JA noted (at [27]): Although there may be cases in which no more than common knowledge, or, perhaps, common sense, is necessary to enable one to see the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it (see, for example, Hamilton v Nuroof (WA) Pty Limited (1956) 96 CLR 18; Nelson v John Lysaght (Australia) Limited (1974–1975) 132 CLR 201), in the normal course, where the negligence asserted against the employer is a failure to provide a safe system of work, the employee is required to provide evidence that the employer unreasonably failed to take measures, or to adopt means, reasonably open to him in all the circumstances, which could have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment (see, for example, Neill v NSW Fresh Food & Ice Pty Limited (1962–1963) 108 CLR 362; Vozza v Tooth & Co Limited (1964) 112 CLR 316). [emphasis added]

In that case, which involved a cleaner at Newcastle University who fell over on a particularly slippery area of floor, the court found that the simple act of placing warning signs near the relevant section of floor would have prevented the accident. 5.13 In Penrith Rugby League Club Ltd t/as Cardiff Panthers v Elliot [2009] NSWCA 247, where a client of Cardiff Panthers registered club fell in the car park because both floodlights that normally lit the area had failed, the initial finding of breach by the trial judge was overturned because the standard of care had been set too high. While the lights had failed, the plaintiff had not shown what ‘reasonable’ precautions the club could have taken to see that this did not happen. Sackville AJA commented (at [26]): In the absence of an explanation of the matters identified earlier, it is difficult to avoid the conclusion that her Honour regarded the appellant as under a duty to ensure that the floodlights were operating at a particular time or times, rather than a duty to take reasonable care to ensure that the floodlights were operating at those times. It is true that her Honour used the expression ‘reasonable response’ in her judgment, but in my view that does not demonstrate that her Honour applied the correct standard. Had she done so, it would have been necessary for her to make findings as to the precautions a reasonable person in the appellant’s position could

and should have taken to minimise the risk that both floodlights would be inoperative at the same time during the night. [emphasis added]

[page 275] 5.14 One point to note about the calculus is that the expected danger of any suggested precautions must be taken into account. Someone will not be in breach if the suggested change in procedure, or the precautions that could have been taken, had potential consequences that were as dangerous as what actually occurred. This was spelled out clearly in Illawarra Retirement Trust v Jesionkowski [2001] NSWCA 286. There someone slipped in the hall of a nursing home after the floors were cleaned. It was claimed that the floors should have been cleaned at some other time. However, the Court of Appeal held that because the evidence established that cleaning at any other time would have presented just as much risk as at the time that the cleaning was done, there was no breach of duty. In Parsons v JJ Richards & Sons Pty Ltd [2008] NSWCA 331, an employee of a waste management company was injured when attempting to move a heavy bin that had fallen over. The company had issued a general warning to employees about lifting, and had in place a procedure for requesting the help of other employees. The worker claimed that the company should have issued a blanket instruction to employees to never attempt to lift a bin of this sort. The claim was rejected by a majority of the Court of Appeal (Gyles AJA and Hislop J), who held that a blanket instruction of this kind would not have been a ‘reasonably practicable alternative system’ (see Gyles AJA (at [40])), as a wide range of situations could arise, in some of which moving a bin of this type might have been perfectly safe. (There is an interesting dissenting judgment given by Beazley JA, who suggests that the regular occurrence of this sort of incident meant that a better system could have been put in place.)

5.15 A short cut that the plaintiff can sometimes take is to show that, after their accident, a new system of work that could minimise the risk was put in place and is now operating. An example of this occurred in Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201. Gibbs J commented (at 214–15): … the appellant [worker] has shown that it was practicable to provide a new method of doing the work that would eliminate or minimize the risk, because such a new method has in fact been put into operation … The onus of proving that it was unreasonable not to take the precaution, of course, lay on the appellant. However, when the respondent, which must have had full knowledge of the nature, cost and practical consequences of the new installation, gave no evidence … the jury was entitled to infer at the very least that the advantages of the method which the respondent has since adopted were not outweighed by any disadvantages.5

The High Court affirmed the continuing relevance of this principle in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, while noting that the principle simply assisted the plaintiff in showing that a suggested precaution was possible; it did not [page 276] automatically mean that the precaution should have been taken: see Heydon, Crennan and Bell JJ (at [94]). In Packer v Tall Ships Sailing Cruises Australia Pty Ltd [2014] QSC 212, an employee made a claim for compensation where, while on a Christmas party boat cruise, he was assaulted by a drunken fellow passenger. The court said that while his employer, CWS, did owe him a duty of care, there was no precaution they could reasonably have taken against a drunken act of violence from a stranger: see [95].6 5.16 Another application of the ‘calculus’ can be seen in Sheridan v Borgmeyer [2006] NSWCA 201. A shearer was working on a raised platform when he fell backwards off the platform and was injured. He claimed there had been a breach of duty by failure to

erect a guardrail around the platform. An Australian Standard recommended such a guardrail; but the owner of the shed claimed that the rail would excessively interfere with the work (roustabouts had to get access to the floor of the platform to remove the wool and clean the area, etc). The court held that on application of the ‘calculus’ it was a breach of duty not to install the guardrail; see, for example, the comments of Tobias JA: at [52]–[55]. In summary: a fall from the platform was clearly foreseeable as a real risk; the severity of the possible harm was high (a risk of possible head, back, etc injuries from a fall of nearly one metre); the probability of the occurrence was low but by no means negligible; the expense of a rail meeting the Australian Standard was not high; and the provision of a rail at a suitable height above the platform (for example, 90 cm) would not unduly interfere with the work of the roustabouts.7 5.17 Another interesting case where the principles of breach of duty came under consideration was Junkovic v Neindorf [2004] SASC 325. The case arose out of the everyday circumstances of a ‘garage sale’ at a private home. Ms Junkovic, a customer, attended Ms Neindorf’s house where there was a garage sale, and while walking up the driveway she tripped on a crack in the path and hurt herself. The simple question was whether she could recover damages from Ms Neindorf for her injury. The South Australian Full Court considered the matter under the heading of both duty of care and breach. An occupier owes a general duty to take reasonable care for the safety of those who enter land. But the question that also had to be considered was whether Ms Neindorf had discharged her duty reasonably. Doyle CJ held that she had, stating (at [44]):

The approach taken by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 requires one to consider the response of a reasonable person to the risk in question. That requires consideration of the magnitude of the risk, the degree of

[page 277] the probability of its occurrence and the difficulty of taking alleviating action. I consider that the magnitude of the risk was low, and the degree of probability of its occurrence was low, although I recognise that temporary alleviating action could have been taken without any great difficulty. But Mason J concluded by saying that the ultimate question was the standard of response to be ascribed to the reasonable person in the defendant’s position. At that level the court is entitled to, and should, bring into play the everyday nature of the hazard.

The ‘everyday nature’ of the hazard led his Honour to say that this was a risk (the risk of tripping on an uneven surface) faced by people all the time. Hence, it was not reasonable to require Ms Neindorf to take precautions for the garage sale. Gray J, however, disagreed. He said that there were a number of features of the case that made it reasonable to hold that more precautions should have been taken (such as a sign warning of the uneven driveway). The third judge, Nyland J, agreed with Gray J. As a result Ms Neindorf was held liable in negligence for the injury caused when Ms Junkovic slipped. 5.18 On appeal to the High Court, Neindorf v Junkovic [2005] HCA 75, the decision was overturned. By a 4:1 majority (Gleeson CJ, Hayne, Callinan and Heydon JJ; Kirby J in dissent) the High Court found that there had been no breach of the occupier’s duty in not warning entrants of the unevenness in the driveway. The majority considered that the risk posed by the uneven driveway was so small that the occupier was justified in not doing anything about it. As Gleeson CJ put it: ‘The unevenness of the surface on which the respondent tripped was so ordinary and so visible, that reasonableness did not require any action on the part of the occupier’: at [15]. Other members of the court gave similar reasons.

Kirby J, however, gave a long and carefully reasoned dissent in which he pointed out that Ms Neindorf had issued an open invitation to members of the public to come onto her premises, for essentially commercial reasons, and hence in his view it was reasonable for her to have taken some (at least minor) precautions to prevent accidents from a hazard of which she (unlike the invited entrants) would have been well aware. He particularly noted that the simple fact that it could be said that the hazard was ‘obvious’ was not of itself sufficient reason to find that there was no breach of duty.8 Standard of care expected of employer 5.19 While the general principles of negligence apply to the employer as well as to anyone else, there are a number of areas where the cases establish that a particularly high standard of care must be observed by the employer. Especially vulnerable employee 5.20 For example, an employer needs to take care, not just for the ‘average’ employee, but also for the employee whom it knows to be particularly susceptible to a [page 278] particular risk. In Paris v Stepney Borough Council [1951] AC 367, an employee who had been blinded in one eye by a war injury was injured in the other eye by a splinter flying off a rusty bolt that he struck with a hammer. He argued that his employer should have provided him with safety goggles, and the House of Lords agreed. The court held that the standard of care that is reasonable varies with the individual employee. Lord Morton said (at 385–6): … the more serious the damage which will happen if an accident occurs, the more

thorough are the precautions which an employer must take … if A and B, who are engaged on the same work, run precisely the same risk of an accident happening, but if the results of an accident will be more serious to A than B … it is the duty of the employer to take such additional precautions for the safety of A as may be reasonable.

A similar comment was made by the High Court in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19, where the court ruled that the failure to set up a proper system for removal of the bins from in front of the loading dock was in particular a breach of the duty of care owed to Mrs Thompson, as she had specifically told Woolworths that the bins were too large for her to move safely. As the court commented (at [30]): What was involved was not a risk to everybody, but it was a risk to the appellant, and that was a risk of which the respondent was aware.

5.21 However, this principle only applies, of course, if the special susceptibility is known to the employer: see Wodrow v Commonwealth of Australia (1993) 45 FCR 52. In Australian Capital Territory Schools Authority v El Sheik (2000) Aust Torts Rep ¶81-577, the Full Court of the Federal Court held that in assessing the question of breach of duty, the fact that the defendant was unaware of a particular susceptibility is of great importance. In that case no breach of duty was found where a school student who had a rare condition that resulted in serious internal bleeding from a minor injury was hurt in a playground scuffle. The school had no prior knowledge of the condition and it had exercised a reasonable degree of supervision. In Illawarra Area Health Service v Dell [2005] NSWCA 381, the Health Service was liable because it knew that a nurse had an allergy to latex and allowed her to be exposed to latex gloves. In Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168, the court ruled that there was no breach in failing to provide special precautions for an employee with a back condition, where the employer did not actually know of the condition, nor was there any evidence that should have led it to make further enquiries.

Enforcing established systems 5.22 The High Court emphasised in McLean v Tedman (1984) 155 CLR 306 at 313 that the employer must not only give instructions about safety, but must take steps to try and enforce safety procedures: The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.

[page 279] In that case garbage collectors adopted a system whereby they would run across the road to fetch and return bins, even though this meant crossing the line of traffic. One of the garbage collectors was run over by a car while following this system. The High Court found that a direct order that only the bins on the same side of the road as the truck were to be dealt with should have been given, and enforced. However, where an employee specifically disregards an order to adopt a safe system of work, the employer may not be liable if it had no indication that such disobedience was about to happen: Keeling v Commonwealth of Australia [1994] NTSC 113. Nor will an employer be required to constantly supervise and remind an employee about elementary precautions which the employee has never been known to previously neglect. In Delahunt v Westlake & Westlake [1999] SASC 366, the plaintiff (an apprentice electrician) had been adequately trained in safety when climbing at heights, and fell when on one occasion a ‘D-ring’ used to secure his safety harness caught in his clothes and did not close properly. While expressing regret, the South Australian Supreme Court held that the accident was not attributable to any failure by the employer. Guarding against employee carelessness

5.23 As the majority in McLean v Tedman (1984) 155 CLR 306 at 311 put it: The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others.

And in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873 the court said: … the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgement by the employee in performing his allotted task.

More recently the High Court noted in Czatyrko v Edith Cowan University [2005] HCA 14 at [12] that: The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.1 1.

Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342–3 per Taylor J; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 218 per Gibbs J; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 500 [128] per Kirby J.

In Marshall v Holroyd Municipal Council (SC(NSW), Court of Appeal, Handley, Sheller and Powell JJA, CA 40504/92, 15 November 1996, unreported) the court found that an employer should have given detailed instructions about a safe work system even to an experienced worker. A similar finding about the need to establish and enforce a safe system even for experienced workers was made in Boral Transport Ltd v Whitehead [2001] NSWCA 395 (truck driver should have been warned of the dangers of a particular corner).9 In Fuller v New South Wales Department of School Education and Training [2004] [page 280] NSWCA 242, the Court of Appeal ruled that the employer had been in breach of its duty by failing to provide a safe ladder for the use of the employee, even though the employee was highly

experienced. The employer should have had a system in place to check that all the equipment was in a safe condition: at [29]. In Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202, it was held that an employer was in breach of its duty by not providing sufficient training to a lathe operator about the consequences if a rod of too great a length was machined in the lathe: at [61].10 5.24 It will not be a sufficient discharge of a duty of care to require the employee to be responsible for an aspect of safety, and then to overload the employee with so many other responsibilities that this area is likely to be neglected. In AFS Catering Pty Ltd v Stonehill [2005] NSWCA 183, a waitress was partly responsible for cleaning the floor in a Defence Force dining room; however, her other duties to serve food and collect money meant that she had little time to clean the floor during mealtimes. She slipped on some spilled margarine and was injured. The court held that there had been a breach of duty by the employer. McColl JA (for the court) said (at [48]): The evidence concerning the appellant’s system of work demonstrates, in my view, that it failed to discharge its duty of care in the manner required by these decisions. In particular, in circumstances where there was a real risk of injury to employees in the respondent’s position of slipping on food dropped on the floor, it failed to devise a method of operation for the performance of the respondent’s work which eliminated the risk, nor did it provide for adequate safeguards against the risk. Requiring the respondent to carry out cleaning activities was not a satisfactory system in circumstances where there was, in my view, evidence which supported the conclusion that she could not discharge that responsibility having regard to her other duties and the pace at which she was required to work.

5.25 This principle will also be applicable in workplace cases involving contractors, and in occupier’s liability cases. In AV Jennings Ltd v Thomas [2004] NSWCA 309, Mr Thomas was a carpet-cleaning contractor engaged to clean carpets in a ‘display home’ being built by Jennings. He was told by Jennings to turn up early one day to do a job, and given keys to the front door to let himself in. The area in front of the door was full of dirt and other

obstructions and in entering the house he tripped over and was injured. The court held that both as an ‘occupier’ and also as the entity in charge of the workplace, Jennings owed a duty of care to Thomas, and this had been breached by failing to keep the access clear of obstructions: at [20]. They rejected the claim that Jennings could rely on Thomas as a competent ‘expert’ to deal with the issues; he was an expert in carpet cleaning but not in any other relevant sense: at [32]. Despite a recent emphasis on the need for plaintiffs to take reasonable care for themselves, there [page 281] is still an obligation owed to remove foreseeable sources of possible harm. As Bryson JA (for the whole court) said (at [36], [39]–[40]): Change in recent years in judicial opinion and approaches to personal responsibility and assessment of the reasonableness of conduct have not produced a rule or an approach to personal responsibility in which persons who are careless, inadvertent or irresponsible are outside the law of negligence … There has not in my opinion been any evolution towards a principle in which an occupier is only liable for concealed dangers, and hazards which can be observed can be left to be dealt with by the entrant. The law cannot evolve to such a rule because to do so would be to depart from application of standards of reasonable behaviour, in a context where occupiers are able to carry out work directed to safety, while entrants typically have no right and little opportunity to alter the state of the premises … Mr Thomas did nothing which indicates that he was knowingly incurring a risk, engaging in a risky activity or behaving in a foolish or imprudent way, and a development of the law towards higher standards of personal responsibility does not appear to me to have any impact on the finding for Mr Thomas or on the present case … … It remains the law that allowance must be made for inadvertence and that an occupier owes a duty of care even to careless entrants.

5.26 In Telfer v Berkeley Challenge Pty Ltd [2000] NSWCA 24 at [23], Powell JA commented: [A]n employer is not absolved from the duty to provide a safe system of work

because his men are experienced and should be capable themselves of devising a system which does not expose them to risk, for if there be any real risk, the employer cannot escape the duty of care imposed on him by the relationship of employer and employee. However, where what is in issue is a simple operation, such as the use by a tradesman of his tools of trade (Commissioner for Railways (NSW) v O’Brien (1958) 100 CLR 211), or the carrying out of an occasional task of a simple character which does not involve any real risk if ordinary care is exercised (see, for example, Electric Power Transmission Pty Limited v Cuiuli (1961) 104 CLR 177) there is likely to be little need for the establishment of a system of work.

As his Honour’s last comment indicates, there are limits to the extent to which an employer will be held liable where an employee’s injuries result largely from their own fault. In part, this is covered under the heading of contributory negligence, a partial ‘defence’ which we will discuss below: see 5.78. However, in some situations the ‘common sense’ view of the extent to which the employee’s recklessness contributed to the injury may lead a court to say that the ‘chain of causation’ was completely broken. In Hutton v Southern Pathology Services [2001] NSWCA 319, for example, the court held that an experienced pathology nurse should have known how to properly dispose of a needle from which she received an injury. In Australian Traineeship System and Colchester GR Pty Ltd (t/as Shell Service Station Waverley) v Wafta [2004] NSWCA 230, the court held that it was not foreseeable to the employer that the employee would attempt to lift a heavy refrigerator, and there was no need to have warned him not to. [page 282] In Barrett v Ministry of Defence [1995] 3 All ER 87, a British sailor on an isolated post had become drunk during his birthday celebrations. After falling unconscious he was taken back to his quarters, but later vomited and died of asphyxiation. His widow, claiming damages, argued that the Royal Navy were placed in such a position of responsibility over her husband that they owed a duty not to allow him to get so drunk that he would fall unconscious. The English Court of Appeal rejected this claim.

Following the High Court of Australia’s approach in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at [94]–[95], Beldam LJ said: The mere existence of regulatory or other public duties does not of itself create a special relationship imposing a duty in private law … I can see no reason why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink.

5.27 A similar conclusion was reached by the New South Wales Court of Appeal in a non-workplace case, South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205 at [175], where Ipp AJA said: … the law should not recognise a duty of care to protect persons from harm caused by them becoming intoxicated by alcohol following a deliberate and voluntary decision on their part to drink to excess.

That case involved a patron at a leagues club who became drunk and was then run down while walking home. On appeal to the High Court, in Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29, that court by a 4:2 majority also ruled in favour of the club, but the reasons offered were slightly different from those advanced by the Court of Appeal. Of the majority, Gummow and Hayne JJ specifically declined to decide whether or not there was a duty of care owed by those who sold alcohol to their patrons: see [57], [81]. They found that even if there had been a duty of care which implied either that the club should have more carefully monitored the patron’s intake of alcohol, or taken steps to see she could travel home safely, the club had discharged their duty by offering to provide a courtesy bus or a taxi (an offer which was bluntly refused). Gleeson CJ and Callinan J, in separate judgments, agreed that there had been no breach of duty, and went further in holding that no duty of care arose in the circumstances: at [12], [18], [121], [131]. There were two very strong and eloquently worded dissents from McHugh and Kirby JJ. Both argued that there was a duty of

care owed in this case, and that the club had not carried out its duty. McHugh J commented (at [31]–[33]): The common law has long recognised that the occupier of premises owes a duty to take reasonable care for the safety of those who enter the premises … The duty of an occupier is not confined to protecting entrants against injury from static defects in the premises. It extends to the protection of injury from all the activities on the premises. Hence, a licensed club’s duty to its members and customers is not confined to taking reasonable care to protect them from injury arising out of the use of the premises and facilities of the club. It extends to protecting them from injury from activities carried on at the club including the sale or supply of food and beverages.

[page 283] In principle, the duty to protect members and customers from injury as a result of consuming beverages must extend to protecting them from all injuries resulting from the ingestion of beverages. It must extend to injury that is causally connected to ingesting beverages as well as to internal injury that is the result of deleterious material, carelessly added to the beverages. If the supply of intoxicating alcohol by a club to a customer gave rise to a reasonable possibility that the customer would suffer injury of a kind that a customer who was not under the influence of liquor would be unlikely to suffer, the club is liable for the injury suffered by the customer provided the exercise of reasonable care would have avoided the injury … [emphasis added]

His Honour explicitly stated that this meant that a club must monitor to some extent the intake of alcohol by customers: at [35]. Its offer of transport home was not sufficient, as it could be expected that an inebriated patron would reject such an offer: at [43]. 5.28 Kirby J also issued an impassioned call for the court to find that there was a duty of care in the case. Arguments about the need to respect the free will of adults in making choices, his Honour said (at [90]), are not so strong in a context where the very substance concerned tends to reduce free will and impair responsible judgment. His Honour continued (at [92]): In such circumstances, to hold that the Club owed no duty of care by the standards of the common law of negligence, to patrons such as the appellant, is unrealistic.

Such a patron was a person who, in the reasonable contemplation of the Club and its employees, was potentially vulnerable to harm as a result of its commercial activities. Such harm was reasonably foreseeable in the given circumstances. The appellant was within the proximity of the Club in a physical sense. The policy reasons, concerned with free will and personal autonomy, that might in other circumstances justify withholding the imposition of a duty of care are overridden, in the case of the Club, by the commercial interest it had in the presence of the appellant on its premises and the known propensity of the alcoholic product, made available there, to expose at least some individuals to the risk of serious harm. [emphasis added]

5.29 Despite the general trend of the courts not to find a duty of care in this area, however, there may be a duty where other factors are involved. In another United Kingdom case, Jebson v Ministry of Defence [2000] 1 WLR 2055, the court found that the Ministry of Defence was liable where a group of soldiers had been driven in the back of a lorry to a nearby town for an evening of drinking. On their way back one of the soldiers fell off the tailgate and was injured. It was conceded that he was drunk, but the court found that the army had taken responsibility for supervising an evening of drinking and so should have provided someone sober in the back of the truck to see that the soldiers were not injured on the way home. Potter LJ said (at [28]): … the law recognises that there may be circumstances where by reason of drunkenness or other factors foreseeably likely to affect an adult’s appreciation of danger, he may act in a childish or reckless fashion, and that in appropriate circumstances there may exist a duty on others to make allowance for those actions and to take precautions for the perpetrator’s safety.

[page 284] 5.30 The High Court of Australia decision in CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47 provided further guidance on these issues. The question was whether the owner of a pub was liable in negligence to a client who had been drinking, and then was killed after leaving the pub. The circumstances which led to the accident were that

the deceased had earlier in the evening given the keys to his motorbike to the publican, and put the bike into a storeroom, asking him to keep it there until the next day. At that stage he indicated that his wife would be picking him up. But later, after having drunk heavily, he changed his mind and asked for, and was given, access to the bike to ride away on. A 2:1 decision of the Tasmanian Full Court finding for the plaintiff was comprehensively overturned, the High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) holding that there was no duty of care. But a majority of the court (except Hayne J who declined to join the others on these points) also found that even if there had been a duty there was no breach, and even if there had been a breach, causation was not established. No breach of duty was found, because even if there was a duty to do something to prevent Mr Scott from leaving after he had been drinking, the publican had done all that he could be expected to do by offering to ring Mrs Scott (an offer refused with some force: see [10]). 5.31 In some situations the danger is so obvious that to even raise the question of a duty to warn may not be appropriate. This was essentially the reason that the majority of the High Court in Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 — a case where a person sustained an eye injury while playing indoor cricket — found that there had been no breach of the duty of care. Gleeson CJ commented (at [40]): In some cases, of which the present is an example, a court is not confronted with a risk that is quite unlikely to occur; it is dealing with an activity which carries with it the possibility of injury, including serious injury, in a number of different forms. The appellant was not a child, and he was not being compelled to play the game. He was an adult who chose, for his personal enjoyment, to play. That the activity is risky is plain to anyone who understands what it involves, including the respondent. The respondent carried on the business of providing facilities for persons such as the appellant to play the game. The question for the tribunal of fact was what reasonableness required by way of response from the respondent, having regard to the respects in which the respondent was alleged to have been negligent.

In the circumstances, particularly where it was accepted that there was no appropriate safety gear that could have been easily provided, the majority agreed with the trial judge that there had been no breach of the duty of care in failing to provide protective equipment, or a warning about the dangers of eye injury.11 Still, it should be [page 285] noted that the case involved a sporting injury, not a workplace injury, and that courts have usually not accepted the argument that workers ‘accept’ risks in the workplace. 5.32 Czatyrko v Edith Cowan University [2005] HCA 14 provides a good example of the difference in approach between workplace injury cases and ‘recreational’ cases. Mr Czatyrko was loading boxes on a truck; when a mobile platform designed to lift the boxes was removed without him noticing, he fell off the back of the truck and was injured. The Full Court of the Supreme Court of Western Australia had found against the worker on the basis that the absence of the platform was an ‘obvious risk’ and that there was no duty on the part of the employer to provide a warning. The High Court restored the verdict in favour of the injured worker, noting that the case of a worker required under pressure to comply with a particular system of work was different from the case of an entrant onto land for recreational purposes. Their Honours noted (at [13]–[14]): This is not simply a case of a failure to warn. It is a case of a failure to devise and implement a safe system of work, or to provide the appellant with proper and sufficient equipment to enable him to carry out his work safely. The risk that the appellant would attempt to step backwards on to the platform in the belief that it was raised, without checking whether this was the case, was plainly foreseeable. There was no system in place to guard against it. The risk could have been readily obviated by the respondent by the taking of simple measures. The measures included the fitting of a warning ‘beeper’ or the introduction of a system for the giving of an oral warning as and when the platform was being lowered. In light of its

failure to implement such or like measures, the respondent was in breach of its duty to take reasonable care to prevent the risk of injury to the appellant. The Full Court therefore erred, in our opinion, in its determination that the respondent was not in breach of its duty. Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land. The case for the appellant was not that he should have been warned by his employer that if he fell off the truck he might suffer injury, or that if he stepped off the back of the truck into space he would fall. It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work. [emphasis added]

5.33 The key feature of the case, then, was that the risk concerned was not one which existed independently of the actions of an occupier (such as the height of a cliff in a reserve); it was a risk which was itself created by the employer, and hence one which should have been removed in whatever way appropriate. For example, in Herning v GWS Machinery Pty Ltd [2005] NSWCA 263, a sales representative was asked to drive a truck carrying a heavy piece of machinery. He stopped the truck when the machinery shifted and attempted to reposition it, but [page 286] in doing so injured his back. The court held that the injury was foreseeable, and the plaintiff ought to have been given proper training in what to do if a load shifted: at [28]. Similarly, in Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191, the court upheld a finding of breach on the basis that the worker (faced with large rocks obstructing the road in front of her truck) was not given proper instructions as to what size of rock should be manually moved, and what size should be left for a machine to move later. Relevance of ‘obvious risks’

5.34 Since a number of recent decisions raise the issue of the relevance of an ‘obvious risk’ (and as there are now special rules in cases governed by the CLA such as cases involving contractors), it is worth making a few comments on this topic. Why is it relevant that a risk of harm is obvious? One clear answer is that if a risk of harm is obvious then it will be foreseeable and a defendant will have a duty not to cause such harm to a plaintiff. But the suggestion is made in a number of contexts that the obviousness of a risk to the plaintiff should deny recovery. But why is that relevant to a defendant? Logically the only situation where that is relevant to a defendant, in the area of breach, is if a reasonable person in the defendant’s situation, because of the risk being one that is obvious, would have chosen not to take precautions against that risk eventuating. Occasionally it is suggested, for example, that the scope of the occupier’s duty can be less strict because it expects the users to exercise reasonable care for their own safety when on the premises.12 This a version of the ‘obvious risk’ argument. 5.35 1.

2.

This appears to lead to two possible scenarios:

The defendant has been conducting a particular activity which itself creates a risk of some sort. The question here will be, if the risk created by the defendant’s own activity is ‘obvious’, then is the defendant entitled to not take any precautions against that risk? (The answer is almost invariably that the defendant will be obliged to take precautions.) The claim may be that the defendant should have gone out of their way to take some action to deal with a risk created by someone else, a claimed duty to take some positive step. Here, of course, the question is whether the duty exists at all, and if so whether it extends to taking precautions against an obvious risk.

Why do these issues arise? Because the ordinary experience of life suggests that the mythical ‘reasonable person’ takes their own

precautions against risks that are obvious, and hence in many cases it seems unreasonable to require the defendant to take those precautions if the plaintiff has not. 5.36 There was a lengthy discussion of the relevance of the ‘obviousness’ of a risk in Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247. [page 287] In both those cases the plaintiffs were injured when diving into the sea, and sued the local council for failure to erect a warning sign. Tobias JA delivered the main judgment, which effectively found that there had been no breach of duty by the council because the risk of injury from diving into water where the depth of the water was not apparent was an obvious risk. His Honour reviewed a number of ‘diving into water’ cases, and said that the difference between those where plaintiffs had succeeded (such as Nagle v Rottnest Island Authority (1993) 177 CLR 423; (1993) 112 ALR 393) and those where plaintiffs had failed (such as, though not precisely on the same point, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [105]) was that the successful claims had been made where the structure from which the water had been entered was an artificial one, constructed or controlled by the defendant. But in almost all cases of diving from natural as opposed to man-made objects the plaintiff had failed. 5.37 The High Court considered these cases on appeal in two separate decisions handed down on the same day, Vairy v Wyong Shire Council [2005] HCA 62 (Vairy) and Mulligan v Coffs Harbour City Council [2005] HCA 63 (Mulligan).13 The court agreed in both cases (by a 4:3 majority in Vairy, unanimously in Mulligan) that the relevant local council had not breached its duty of care by

failing to erect a sign warning about the dangers of diving into the water at a particular spot. But in the course of doing so a clear majority of the High Court rejected the emphasis that the New South Wales Court of Appeal had placed on the ‘obviousness’ of the risk concerned. Hayne J, for example, while in the majority in Vairy, was careful to point out that the issue could not be resolved simply by asking whether the risk was ‘obvious’, as the Court of Appeal seemed to have done. The question of breach relates to the alleged wrongdoer and their response to foreseeable risk. In some situations even an obvious risk must be catered for. His Honour stated (at [163]): [T]he focus of inquiry must remain upon the putative tortfeasor,14 not upon the person who has been injured, and not upon others who may avoid injury. And in looking at the reasonable response to a foreseeable risk it is necessary to recall that there will be times when others do not act carefully or prudently.

McHugh J also noted that the ‘obviousness’ of the risk was not determinative, saying (at [19]): Seldom will the obviousness of a risk created or permitted by a defendant who owes a duty of care require no action by that party. Ordinarily, when the obviousness of a risk requires no action, the magnitude and likelihood of the risk will be so insignificant and so expensive or inconvenient to avoid that reasonable care requires neither the risk’s elimination nor a warning concerning its propensity.

[page 288] Other members of the court agreed that it was wrong to place too much emphasis on the ‘obviousness’ of the risk and neglect the other factors that might arise.15 The obviousness of a risk, then, is at common law only one of a number of factors to be considered in deciding whether a duty has been breached. In Swain v Waverley Municipal Council [2005] HCA 4 (Swain), Gummow J commented (at [142]): Furthermore, in determining an issue of breach of duty, the circumstance that a risk

is obvious is only one factor to be weighed and is not conclusive.1 A duty of care may extend to preventing injuries that result from the ‘inadvertence and inattention’ of plaintiffs to obvious risks.2 It was for the jury to determine whether the risk was obvious, and it was open to them to infer from the evidence of Mr Swain, Mr Wilson and Ms Galvin that the channel and sandbar were unexpected and concealed hazards. 1.

Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 474 [45].

2.

Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342.

5.38 To return to the two situations outlined above (see 5.35), there is justification for saying that the question of the ‘obviousness’ of a risk is treated differently in those different circumstances. Where the risk has actually been created by the defendant’s activity, then it will be hard for them to avoid responsibility for making reasonably sure that others become aware of the risk. Could a local council always rely on entrants to land taking care to avoid obvious risks? Tobias JA in Vairy (at [137]) quoted the following comments of Kirby J in Woods v MultiSport Holdings Pty Ltd (2002) 208 CLR 460 at [128] on this question: Obviously, that proposition could not apply to every situation of potential risk, so as effectively to abolish the need for warnings altogether. It could not apply, for example, to relieve a risk-creator simply because the risk was obvious. In a sense, the greater the risk, even if obvious, the greater may be the obligation of the party in control of it to warn others about it. Take the occupier with a deep hole in the middle of the path that in darkness could become a great danger. Take employers who must warn employees of risks, taking into account possibilities of ‘inadvertence or carelessness’ on the part of the employee. Or take the manufacturer of cigarettes. Apart from any statutory obligations that might apply, it could not seriously be suggested that such a manufacturer was relieved of the duty to warn because the risk of cigarettes to health is now ‘obvious’. The duty to warn depends on the circumstances of the case, not just a suggested lack of ‘obviousness’ of the risk. [emphasis added]

That is why, for example, in Czatyrko v Edith Cowan University [2005] HCA 14 (see 5.32) — where Mr Czatryko stepped off the back of the truck with the assumption that the raised platform was there — the High Court held that the employer could not argue the ‘obviousness’ of the risk. The employer had created the risk by

its defective system of work and could not avoid responsibility purely by arguing the risk was ‘obvious’. [page 289] 5.39 As Mason P noted in Skulander v Willoughby City Council [2007] NSWCA 116 at [7]: The respondent was the occupier of an area to which members of the public had frequent access. Its duty of reasonable care was not negated by pointing to the carelessness of a particular plaintiff … Indeed, the exercise of reasonable care by the Council required it to have regard to the possibility that some entrants may be careless of their own safety (see generally Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at 246–47; Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [25]–[27]).

However, in cases where the matter at issue is not a risk created by the defendant, but a risk that it is argued that the defendant should have avoided by some positive action, the question of whether or not the risk is ‘obvious’ may have greater weight.16 But even in those cases, as the decisions in Vairy and Swain show, it is still a matter of weighing up all the relevant circumstances. ‘Res ipsa loquitur’ 5.40 Before leaving the area of breach, this curious Latin expression should be noted. Translated, it means roughly ‘the thing speaks for itself’. The doctrine has been applied in some cases where it is claimed that the occurrence of an accident will itself be evidence that there has been a breach of duty. That is, the argument is that some occurrences are so obviously the result of carelessness that no further investigation is needed. The classic example is Scott v London and St Katherine’s Docks Co (1865) 3 H & C 596. In this case the plaintiff was near the door of the defendant’s warehouse when some large bags of sugar fell on them. Obviously, someone under the defendant’s control had been careless.

In Commissioner for Railways v Corben (1939) 39 SR (NSW) 155 at 61, Jordan CJ said: The doctrine of res ipsa loquitur is a rule of common sense. It is to the effect that if something occurs which causes physical injury to a person or his property, and is of such a kind that it would not ordinarily be likely to happen unless someone had been negligent, and if it is proved that all the relevant surrounding conditions were under the control of the defendant, this supplies evidence from which, if unexplained, it may be inferred that the occurrence was caused by negligence for which the defendant is responsible, notwithstanding that the plaintiff is unable to point to any specific act of negligence. The doctrine does not shift the onus of proof. It serves only to indicate what may be treated as sufficient to discharge it.

So, for example, in Colquhoun v Australian Iron and Steel Pty Ltd (SC(NSW) Court of Appeal, No 40117 of 1993, BC9605422, Mahoney P, Handley and Powell JJA, [page 290] 15 November 1996, unreported) there was an unexplained derailment of a ‘man car’ within a mine: The track, the man car, and the mine were all under the respondent’s control. The case was one where, in my opinion, an inference of negligence arose from the accident itself. [Handley J, BC9605422, at 2]

5.41 The High Court commented on the doctrine in Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [25] (Schellenberg): Piening v Wanless1 and Anchor Products Ltd v Hedges2 as well as other cases in this Court make it clear that a plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided that the tribunal of fact concludes that:3 1.

there is an ‘absence of explanation’ of the occurrence that caused the injury;

2.

the occurrence was of such a kind that it does not ordinarily occur without negligence; and the instrument or agency that caused the injury was under the control of the defendant. [per Gleeson CJ, McHugh J]

3. 1.

(1968) 117 CLR 498.

2.

(1966) 115 CLR 493.

3.

See Balkin and Davis, Law of Torts, 2nd ed (1996), pp 287–96; and Fleming, The Law of Torts, 9th ed (1998) pp 353–9.

In Schellenberg the court held that the doctrine did not apply. The worker had been injured when using a piece of equipment, and argued that this implied there must have been negligence by the employer, either in supplying defective equipment, not maintaining the equipment, or not providing proper training or supervision. The court rejected the argument: there were a number of other possible explanations that did not involve the culpable negligence of the employer, including perhaps foolish use of the equipment by the employee. Hence, the doctrine res ipsa loquitur was not applicable. It should be noted that even where the doctrine applies it is only a part of the ‘process of reasoning’, and a defendant may still be able to show by producing other evidence that no negligence in fact occurred. In particular, the doctrine will not apply where there are a number of possible causes; for example, in the case of a failure of complex machinery such as a lift: see Dimitrelos v 14 Martin Place Pty Ltd [2007] NSWCA 85. For another case involving a number of possible explanations for the harm, and where the court rejected the use of the res ipsa doctrine, see Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA 35 at [190]– [191], [446]–[467]. In general, then, there is still reluctance to give res ipsa much weight. However, the High Court has recently reiterated previous remarks that the inference can still be drawn, although ‘whether or not that inference will be drawn remains an open question’ for the court. 17 [page 291]

Causation and damage

5.42 The third major element of the tort of negligence is: did the breach of the duty cause the damage? There are two questions involved here: the issue of causation itself, and the issue of remoteness of damage (a term used to describe situations where the courts will deny recovery even if factual causation is made out). Causation 5.43 McHugh J in Chappel v Hart (1998) 195 CLR 232 at [23] notes the basic principle that: Proof of a cause of action in negligence … requires the plaintiff to prove that the breach of duty by the defendant caused the particular damage that the plaintiff suffered.

In most cases of workplace injury this principle is clearly demonstrated and few complicated questions are raised — for example, a worker is injured because some machinery was not properly fenced off. Where it is clear that even if all reasonable precautions had been taken, the harm would have occurred anyway, then causation is not made out. For example, in Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, Mr Barnett presented to the hospital with an illness and was then told to go home. It turned out that he had arsenic poisoning of which he died five hours later. However, the court held that on the evidence his poisoning was so severe that, even if he had been admitted to the hospital and treated, he would still have died at the same time. Hence, while there was a breach of duty, there was no action because causation was not established. An example of this in the workplace safety area is McWilliams v Sir Williams Arrol & Co [1962] 1 WLR 295 (HL) where a worker fell from a height and was killed. His widow claimed that a safety harness should have been provided. The court accepted the ‘overwhelming’ evidence that the deceased had always refused to wear safety harnesses, and would not have done so even if one

had been provided. As a result it could not be said that ‘but for’ the failure to provide a harness, the worker would not have died. In most situations, then, the ‘but for’ test (sometimes under the Latin version sine qua non) will be the starting point for the question of causation. Sometimes this is also called the ‘historical’ causation question — simply put, is there a sequence of events which as a matter of history can be seen to have led to the occurrence of the event in question? 5.44 However, from time to time, some difficult questions arise even in relation to physical damage. The ‘but for’ test may be a starting point, but not all matters that are ‘historically’ connected to an event will be seen to be ‘legally caused’ by that event. For example, consider the facts of the leading High Court decision in the area. In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 (March), the plaintiff, March, was drunk and driving at excessive speed down a main street in Adelaide at 1.00 am. [page 292] He collided with the rear of a truck which was parked across the centre line of the road. The trial judge found that the accident was partly caused by the negligence of the truck driver, and as a result awarded damages against the firm that owned the truck. The judge apportioned the blame for the accident as 70% to the car driver, 30% to the truck driver. The Supreme Court of South Australia held that the truck driver was completely without fault, and that the accident was not caused by his negligence at all. On appeal the High Court rejected the approach of the Supreme Court, and said that the accident in question was clearly partly caused by the truck driver’s negligence. By parking the truck in the centre of the road, the driver created a

situation of danger, and the group of people subject to that danger included drivers who were drunk or not keeping a proper lookout. 5.45 Principles that flow from the decision in March include the following: The legal test in Australia for causation is not simply the question ‘but for the defendant’s actions, would the plaintiff have suffered injury?’ The ‘but for’ test is a minimum requirement, but overall the approach requires a ‘common sense’ view of the sequence of events. An event will not be the cause of an injury simply because it results in the plaintiff being ‘placed’ in the place where, or at the time when, the injury occurs. So, for example, the person who sold tickets for the last voyage of the Titanic could not be legally said to be a ‘cause’ of loss suffered by victims of the sinking, even though in one sense ‘but for’ the ticket-seller the passenger would not have been there. However, this rule does not apply where the action of ‘placing’ someone itself increased the risk of injury. 5.46 The conscious choice of either the plaintiff or a third party may ‘break the chain’ of causation between the actions of the defendant and the injury to the plaintiff (in technical terms, this choice may amount to a novus actus interveniens, an intervening new action). However, the chain will not be broken if the choice involved was ‘just the kind of thing’ that was foreseeable in the circumstances created by the defendant’s wrongdoing. So, in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, the plaintiff was injured at work, but then received negligent medical treatment which made his injuries worse. The employer claimed that the negligence of the doctor had ‘broken the chain of causation’ and that it was no longer responsible for any of the damages payable. The High Court said (at 528, 529):

A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff’s subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor’s negligence … When an injury is exacerbated by medical treatment … the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable.

Both the employer and the doctor were held liable for the injury. [page 293] In Muller v Lalic [2000] NSWCA 50, Mr Muller was injured by a gun fired accidentally by Mr Lalic’s son. While the son was over 18, his father had told him that the gun was kept unloaded. In fact, the gun was loaded, and the bolt was in place. The Court of Appeal held that the accident was legally caused by the father’s negligence. Clear evidence of negligence was a failure to comply with statutory provisions concerning the storage of firearms. And the action of the son was not a sufficient novus actus to ‘break the chain’ of causation, as it was just the type of result to be expected where the gun was stored while loaded but other members of the household had been assured that it was empty. Stein JA commented (at [38]–[39]): [T]he chain of causation is not necessarily broken by an act of a plaintiff or a third party which constitutes a more immediate cause of the loss or damage than the defendant’s negligence. See also Chappel v Hart (1998) 195 CLR 232, Kavanagh v Akhtar (1998) 45 NSWLR 588 and Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307. In my opinion, the learned trial judge was wrong to find that the conduct of the son was a novus actus interveniens which broke the chain of causation. Pulling back the bolt and pulling the trigger, when he reasonably believed from what his father had told him that the gun was not loaded, is not such an intervening act.

5.47 Sometimes the chain of causation may be broken, however, by the decision of either someone else or the injured person themselves. In AMP General Insurance Ltd v Roads & Traffic

Authority (NSW) [2001] NSWCA 186 (AMP), a worker who had been injured at work committed suicide during subsequent court proceedings. His wife sued to recover damages for ‘nervous shock’. The Court of Appeal said that the worker’s depression and suicidal feelings did not really stem from the accident as such; an underlying psychiatric problem and the events in the court proceedings caused these conditions, and as a result the worker’s decision to commit suicide ‘broke the chain of causation’. Suicide in these circumstances was not ‘just the sort of thing’ to be expected. On the other hand, the English Court of Appeal in Corr v IBC Vehicles [2006] EWCA Civ 331 rejected this argument (and to some extent the decision in AMP). In that case a worker who had suffered serious physical injuries in a factory accident went into a severe state of depression and eventually committed suicide. Ward LJ ruled that his decision to take his own life was not a ‘free, deliberate and informed act’ so as to constitute a novus actus; rather, his depression, brought about by the injury, so dominated his thinking that he could not help himself: at [47]. The other members of the court agreed, all following and adopting the comments of Giles JA in Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 on a causation issue arising under the Workers Compensation Act 1987 (NSW) (WCA 1987).18 [page 294] This decision — and the fact that in a case of suicide the ‘chain of causation’ is not always broken — was upheld by the House of Lords on appeal: see Corr v IBC Vehicles Ltd [2008] UKHL 13. However, on a different set of facts, in Sarkis v Summitt Broadway Pty Ltd t/as Sydney City Mitsubishi [2006] NSWCA 358, the court held that there were a number of other intervening events separating the initial accident from the suicide, and hence that the chain of causation had been broken.19

5.48 The question of whether a chain of causation is broken is also raised in cases where there has been a criminal assault in the workplace. In Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45, a contractor who was engaged in refilling a Coke machine was set upon and injured by an assailant trying to rob him. In the end his claim for damages from the company failed because, even if there had been a general duty of care and perhaps a breach, there was no evidence showing that any of the precautions that it was claimed should have been taken would have prevented the attack. Mason P described the conduct of the assailant as being ‘particularly opportunistic and random in its viciousness’: at [10]. Hence, causation could not be established. On the other hand, this situation can be contrasted with that which arose in PAB Security Pty Ltd v Mahina [2009] NSWCA 125. There a security guard outside a club had an altercation with a number of young men whom he had turned away from the premises, who then threatened that they would come back and ‘get’ him. Later that evening they returned with a gun, and shot him. The security guard had taken their threats quite seriously and had asked to be ‘rotated’ inside the club to avoid them, but his supervisor had refused his request. The court held that it was a breach of the employer’s duty of care for them not to agree to this rotation, and that the chain of causation between the breach and the harm was quite direct. The attack was just the sort of thing that was foreseen. 5.49 In Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355, the employer company was found in breach of its duty of care where it had not previously dismissed a violent employee (Lee) who later, as a result of a dispute in the workplace, shot the employee plaintiff, Pavkovic. The court found that there was no break in the chain of causation because, as had been demonstrated by previous incidents, Lee was known to have irrational and violent tendencies: see, for example, the comments of Ipp JA (at [113]). In State Rail Authority of New South Wales v Chu [2008] NSWCA

14, on the other hand, the chain of causation was found to be broken. The plaintiff had been injured when she tripped at a railway station; later, while recovering, she was raped and assaulted, and claimed that the State Rail Authority should be held liable because her previous injury prevented her from being able to resist her assailant. The Court of Appeal overturned a verdict in her favour relating to the sexual assault, finding that this was a novus actus which had broken the chain of events leading from the injury to the plaintiff’s leg. Mathews AJA stated (at [54]–[55]): [page 295] [T]he sexual assault was plainly, in my view, a novus actus interveniens which broke the chain of causation. As McHugh J said in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 429–430: The causal connexion between a defendant’s negligence and the plaintiff’s damage is negatived by the subsequent conduct of another person only when that conduct is ‘the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by defendant’. The conduct of the respondent’s assailant was clearly a ‘free, deliberate and informed act’. It is questionable whether it was intended to exploit the respondent’s immobility. But it was certainly the type of conduct which would have broken the chain of causation.

5.50 Another case involving causation was Nagle v Rottnest Island Authority (1993) 177 CLR 423; (1993) Aust Torts Rep ¶81211. In this case Mr Nagle was injured when he dived off a rock platform on Rottnest Island, a popular tourist spot. He claimed that the authority in charge owed him a duty of care, and that it had breached that duty by failing to put up a sign warning against diving off this spot. A 4:1 majority of the High Court agreed (Mason CJ, Deane, Dawson and Gaudron JJ), and also found that the erection of a warning sign would have deterred the plaintiff from diving; therefore, the element of causation was proven. Their Honours stated (at 177 CLR 423): Notwithstanding the deference which ought to be paid to the findings of the trial judge, we do not agree with his conclusion that the Board’s failure to erect a sign

giving an appropriate warning would not have prevented injury to the appellant. The appellant’s uncontradicted evidence, accepted by the trial judge, revealed him to have taken a cautious approach to diving. He entered the water in the way he did because he believed he had passed all submerged rocks. In our view, the likelihood is that he would have been deterred from diving by an appropriate warning sign.

In Wilkins v Council of the City of Broken Hill [2005] NSWCA 468, however — a case where a teenager had been injured after diving into a swimming pool and it was claimed that council officers should have warned him not to dive — the trial judge ruled that causation had not been established because on the evidence she could not be satisfied that the boy would have heeded any warning given to him. He was ‘high-spirited’ and shown to generally disregard instructions given by pool attendants: at [10]. 5.51 Gillespie v Commonwealth of Australia (1993) Aust Torts Rep ¶81-217 (Gillespie) was another case where causation of damage was not established. Mr Gillespie was employed by the Department of Foreign Affairs in Caracas, Venezuela. The country was experiencing a particularly difficult time, and threats of violence had been made against foreigners. Mr Gillespie suffered a nervous breakdown. He sued the Commonwealth as his employer for its failure to provide him with a proper briefing to prepare him for the situation before he went to Venezuela. The court found that there was indeed a duty owed by the department to provide a proper briefing about the situation in Venezuela, and also that such a briefing had not been provided. However, they found that in the circumstances, even if the briefing had been provided, it would not have prevented the breakdown. Mr Gillespie had [page 296] had previous experience in third-world countries, and the briefing would simply have repeated things he already knew. In addition, there was evidence that even if he had been warned not to go to

Venezuela, he would have gone anyway. As a result the failure to provide the briefing did not contribute to his breakdown.20 5.52 Another case illustrates this principle, in a situation with great relevance to workplace health. In Qantas Airways Ltd v Cameron (1996) 66 FCR 246 the Federal Court was asked to rule on a claim in negligence for damage to health resulting from ‘Environmental Tobacco Smoke’ (ETS) made by 10 passengers on Qantas aeroplanes. These passengers had requested non-smoking seats but the allegation was made that in the confined space of the aeroplane they were exposed to ETS. By a 2:1 majority the Full Court rejected the claim on the basis of causation. The alleged breach of duty was a failure to warn the passengers that even the allocation of ‘non-smoking’ seats would not protect them completely from the effects of ETS. However, the majority held that even if the warning had been given the passengers would have travelled anyway. Lindgren J commented (at [175], [196]): In any case based on an alleged negligent failure to warn or inform it is necessary (i) to identify with certainty the kind of warning or information which the circumstances called for, and (ii) to prove that if the warning or information called for had been given, the loss or injury alleged would not have been suffered. In the present case I am content to accept, without deciding, that the duty to warn incumbent on Qantas required the giving of [an appropriate] warning. This was, in effect, what the trial judge held. It must then be inquired what course the respective group members would have taken upon being given that warning … In the result, in my view although discharge of Qantas’s duty of care required it to give a warning of an appropriate kind for the benefit of any intending passengers who were peculiarly susceptible to the effects of ETS, there was no evidence from which it could properly be inferred that if either of the general warnings pleaded had been given, any of the ten group members would probably have avoided the ill effects caused to them by ETS. Accordingly, with respect, it was not open to the learned trial judge to conclude, as he did, that Qantas’s breach of its duty to warn caused loss. It follows that the group members were not entitled to recover damages for negligence.

See also Lilley v Alpine Resorts Commission (1998) Aust Torts Rep ¶81-475: signs warning of possible collision between a snowboard rider and skier would not have prevented the accident, as the skier was already aware of the danger from previous experience.

5.53 In Rosenberg v Percival [2001] HCA 18, the plaintiff failed because of an issue of causation. She underwent an operation that resulted in her condition becoming worse. The trial judge held that the operation had been carried out in accordance [page 297] with a reasonable standard of care; it was just that in this patient’s case the procedure did not work. There was a small but measurable chance that this problem might have occurred, but the surgeon had not mentioned this possibility before the operation. However, the main reason for her lack of success was the finding of the trial judge that, in the circumstances prior to the operation, even if she had been told about the risk she would have gone ahead with the procedure. In those circumstances there was no causal link between the failure to warn and the damage. In a similar case, G, P A & C, P v Down [2009] SASC 217, G underwent a tubal ligation to avoid future pregnancy, but in fact subsequently became pregnant. The operation was not carried out negligently, but the judge found that the doctor had breached his duty of care by telling G that the chances of a pregnancy after the operation were 1 in 2000, when in fact the literature put the chances at between 1 in 500 and 1 in 1000. However, the court upheld the trial judge’s denial of the claim, because in the circumstances the evidence established that even if G had been told the correct figures, she would have undergone the procedure anyway (as these odds were much better than the odds of 1 in 100 if she simply continued using the contraceptive pill): see, for example, at [52]. 5.54 The action of the employer may also be held not to be a cause of injury to an employee, where it was simply the occasion for the onset of an existing illness that would have, in any case, eventuated.

This was the situation in Wodrow v Commonwealth of Australia (1993) 45 FCR 52, another case involving a Commonwealth public servant who suffered a nervous breakdown. Mr Wodrow worked in the Department of Defence. He made a mistake when issuing a draft discussion paper, and was reprimanded by his supervisor. The result of the reprimand was a nervous breakdown. On the facts, the Federal Court found that Mr Wodrow had a pre-existing psychiatric condition which the reprimand triggered but did not cause. By contrast, in the English case of Walker v Northumberland County Council [1995] 1 All ER 737, the trial judge found that a second nervous breakdown suffered by an overworked social worker was foreseeable after a first breakdown had been caused by overwork, and undertakings by the council to alleviate his workload on return to work were broken. The council was liable in damages for the consequence of the second breakdown.21 Remoteness of damage 5.55 As well as the requirement that damage must be the result of the defendant’s negligence, the courts have held that it must be damage that is not ‘too remote’. One element of the question of remoteness is that the general kind of damage that the plaintiff has suffered must be reasonably foreseeable. Notice that this does not mean the precise sequence of events must have been in any way likely, simply that the general type of damage was foreseeable. [page 298] In Chapman v Hearse (1961) 106 CLR 112, Chapman negligently ran into the back of another driver’s car, and as a result was himself flung out of his car onto the road. Dr Cherry, who was passing by, stopped and went to assist Chapman. Mr Hearse drove

by and hit Dr Cherry, leading to his death. In the various legal actions that followed, the High Court had to decide whether Chapman would have been liable to Dr Cherry if he, Dr Cherry, had simply been injured instead of killed. The court held that Chapman would have been liable. While it could be argued that the precise sequence of events was unpredictable, the court held that it was quite foreseeable that the result of an accident on a busy highway would be some sort of personal injury to someone who had stopped to assist those injured. 5.56 There can be some complications in this kind of situation when it comes to deciding what the ‘general type’ of damage is. The most that can be said by way of summary is that the answer to this question will probably vary depending on the injury. First, in the case of personal injury, the courts have tended to say that if there is some foreseeable risk of personal injury, then the defendant will be liable for the full extent of injury, however unlikely it may have been that that particular type of harm might occur to a ‘normal’ person. This is known as the ‘eggshell skull’ rule, from the common example: if you hit someone on the head in a way that would cause 99% of the population to simply suffer a bruise, and the particular person has an eggshell-thin skull and suffers very severe brain damage, you will be liable to pay for the full amount of the injury. The other way of expressing this is that a wrongdoer must ‘take his or her victim as he or she finds them’. A good example of this principle in the workplace health area is Smith v Leech Brain & Co Ltd [1962] 2 QB 405. The plaintiff received a burn on the lip through a splash of molten metal, as a result of the employer failing to provide adequate protection. The site of the burn developed into cancer, from which he died. There was already a ‘pre-malignant’ condition that allowed the cancer to catch hold, but the burn was the cause. The House of Lords held that it was not relevant that the kind of injury that actually happened (the cancer) was unforeseeable. Some kind of personal

injury was foreseeable; the extent of that personal injury was not, but that did not preclude recovery. This case has been followed in New Zealand: see Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152, and in New South Wales: Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501. 5.57 Second, in the case of injury to property, the courts have been more willing to ‘subdivide’ the different types of property damage, and to hold that some types were foreseeable and others too remote. So in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388, furnace oil was negligently spilled from a ship, the Wagon Mound, while docked in Morts Bay, Sydney. Evidence at the trial was that this particular type of oil had never been known to catch fire while floating on the surface of the water. As a result, employees of the wharf company carried on with the welding work that they were doing. The oil did in fact ignite, causing damage to the wharf and also destroying two other ships that were moored nearby. The Privy Council held that the defendants were not liable for the damage caused by the fire, since fire was not a foreseeable [page 299] consequence of the spillage of the oil. Damage to other ships caused by the oil itself clogging something up would have been recoverable, but since the evidence showed that the ignition of the oil was not foreseeable, that damage was not recoverable. The court was prepared to distinguish harm to property by clogging with oil, from harm to property by fire. In a later case arising out of the same events, The Wagon Mound (No 2) [1967] 1 AC 617, evidence showed that in fact the oil had been known to ignite previously. There was thus a ‘real risk’ that

such an accident might occur, and the defendants in that case were held liable. In combination, the two cases establish that in relation to property damage the particular kind of damage must have been foreseeable. However, it is not required that the damage is found to have been more likely than not; it is simply enough for it to be described as a ‘real risk’. Jolley v London Borough of Sutton [2000] 2 Lloyd’s LR 65, a decision of the House of Lords, provides another good example of this type of reasoning. The local council had left an abandoned boat outside a block of flats. The injury suffered by a teenage boy while trying to repair the boat, while not something that anyone could specifically foresee, was clearly within the ‘general kind of damage’ that was foreseeable. Disease cases and ‘causation by increased risk’ 5.58 The issues of causation are sometimes raised very robustly in disease claims. Here the question is: can it be proved on the balance of probabilities that the workplace situation, or some negligence of the employer or someone it was responsible for, caused the plaintiff’s disease? In a major English case, McGhee v National Coal Board [1972] 3 All ER 1008 (McGhee), it was established that the plaintiff’s dermatitis was caused by coal dust from his work in a mine. It was alleged that the employers should have provided showers in order that the dust could be washed off at the end of the shift. Medical evidence was ambiguous and it was unclear whether a shower at the end of the day would have been effective in eliminating the health risk. However, the court said that if someone created a situation of increased risk to others, and the harm that eventuated was within that situation, then they were liable. In other words, the court seemed to suggest that in proving causation, it might be enough to show an increase in risk.

This case was followed in South Australia in Birkholz v RJ Gilbertson Pty Ltd (1985) 38 SASR 121. There the operation of an abattoir had created a risk of brucellosis infection, which the plaintiff contracted. It was not necessary to spell out in detail the chain of causation. 5.59 The New South Wales Court of Appeal considered issues of causation in disease cases in some detail in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 (Bendix Mintex). The reasoning of the majority of the court (Mason P and Beazley JA) in this case suggests that McGhee is not good law in Australia. The judgments in Bendix Mintex reaffirmed that the test for legal causation is satisfied by proof not only of sole causation but also by proof that the defendant’s action ‘materially contributed to’ the plaintiff’s disease. But Mason P in particular [page 300] doubted that ‘increased risk’ in itself was sufficient to establish causation. He followed the decision of the House of Lords in Wilsher v Essex Area Health Authority [1988] AC 1074, which he said was consistent with the approach adopted by the High Court in St George Club Ltd v Hines (1961) 35 ALJR 106, where the court said (at 107): In an action at law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant’s default.

In Bendix Mintex, Mason P adopted as a summary of the law the following statement (at 316G): The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury. [emphasis added]

5.60 What does ‘material contribution’ mean? The essence is that it is a contrast with ‘sole cause’ — the defendant’s action does

not have to have been the ‘sole’ or even a ‘primary’ cause; it must simply have been one of a set of factors that led to the injury, even if only a ‘minor’ factor, so long as it was not de minimis (that is, trivial). Bonnington Castings Ltd v Wardlaw [1956] AC 613 illustrates this proposition.22 So ‘material contribution’ properly understood simply means that even if there are four or five ‘but for’ events that led to the injury (one of which is the defendant’s action), the defendant’s action can still be a cause even if it is not the ‘main’ cause and even if it does not make a ‘substantial’ contribution — as long as it makes some contribution which is more than trivial. The High Court in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 provides an excellent summary of the orthodox law of ‘material contribution’ (at [45]): The law’s recognition that concurrent and successive tortious acts may each be a cause of a plaintiff’s loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is ‘caused or materially contributed to’ by a defendant’s wrongful conduct. It is enough for liability that a wrongdoer’s conduct be one cause. The relevant inquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss. [emphasis added]

In Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 493 McHugh J noted: If the defendant’s breach has ‘materially contributed’ to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage.

[page 301] As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage.

Note that calling a contribution ‘material’ does not of itself

resolve any issues about standard of proof; it will still be necessary to show that on the balance of probabilities there was a ‘material’ contribution by something the defendant did. But it is important to realise that it is not necessary to show that the defendant’s contribution was ‘more important’ than any others.23 Still, the result of the comments in Bendix Mintex noted above is that the current law in New South Wales appears to be that a plaintiff must be able to prove on the balance of probabilities that some action for which the defendant is responsible in fact materially contributed to their disease, rather than simply increased the risk of such disease occurring. 5.61 In the United Kingdom, the House of Lords addressed this issue in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 (Fairchild) and ruled that in exceptional cases, such as where harm has been caused by one of a number of possible defendants but it is scientifically impossible to determine which one, a ‘modified’ causation rule should allow recovery on proof of a material increase in risk alone. More recently the House of Lords went even further down the track of expanding the rules of causation in disease cases in Barker v Corus (UK) plc [2006] UKHL 20 (Barker), where it ruled that causation of a disease may be established where there are a number of possible causes (but no clear evidence as to which one was the actual cause), even if some of the possible causes would not be actionable (because they were matters for which the plaintiff themself was responsible). In Barker, the plaintiff was exposed to asbestos on three separate occasions, two of which were while working for other companies and one of which was while working on his own account as a contractor. Despite the uncertainty about which of the occasions had led to his suffering mesothelioma, the court ruled that the two employers could be held liable. But in a radical move they also ruled that each employer would only be held liable for a specific proportion of damages based on the percentage of the time that they engaged the worker: per Lord Hoffmann (at [43]). This

approach has been followed in the more recent decision of Sienkiewicz v Greif (UK) Ltd [2011] 2 WLR 523; [2011] 2 All ER 857.24 The Fairchild and Barker decisions have led to legislative intervention and raised various issues regarding causation principles in the United Kingdom, areas of interest in that jurisdiction that will not be focused on further here.25 [page 302] 5.62 While not finally settled, it seems likely that the High Court of Australia will not approve such an approach in this country. In fact, while the issue was not addressed by the whole court, comments by individual members of the court in the decisions in Roads and Traffic Authority v Royal [2008] HCA 19 (Royal) and Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53 point to the probability of the High Court rejecting the Fairchild/Barker approach and maintaining the traditional rule that actual material contribution to cause (rather than mere increase in risk) is needed to prove causation. Kiefel J commented in Royal (at [144]): The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate. Kitto J in Jones v Dunkel said that one ‘does not pass from the realm of conjecture into the realm of inference’ unless the facts enable a positive finding as to the existence of a specific state of affairs. Spigelman CJ pointed out in Seltsam Pty Ltd v McGuiness, with respect to an increased risk of injury, that the question is whether it did cause or materially contribute to the injury actually suffered. This enquiry is consistent with the commonsense approach required by March. [footnotes omitted]26

5.63 In Amaca Pty Ltd v Ellis [2010] HCA 5, the High Court specifically said it was not addressing the authority of Fairchild and Barker: at [12]. But the ruling in that case, that the plaintiff had not shown that his lung cancer was caused by exposure to asbestos (where he had also been a long-term smoker), seems to provide further support for the view that proving negligence requires proof of causation on the balance of probabilities, rather than simply

proof of an ‘increased risk’. The court summed up its reasons by noting (at [74]): [N]o scientific or medical examination can now say, with certainty, what caused Mr Cotton’s cancer or lung cancer in any other particular case. As explained at the outset of these reasons, despite this uncertainty, the courts must, and do, ‘reduce to legal certainty [a question] to which no other conclusive answer can be given’.27 The courts do that by asking whether it is more probable than not that X was a cause of Y. Saying only that exposure to asbestos may have been a cause of Mr Cotton’s cancer is not a sufficient basis for attributing legal responsibility.

More recently, in Amaca Pty Ltd v Booth [2011] HCA 53 (Booth), while formally declining to rule on the status of Fairchild as the facts of the case did not require it (see [52]), the general tone of the court’s discussion of the issues suggested that it was not in favour of adopting a principle that would allow mere ‘risk of harm’ to constitute damage. French CJ, for example, commented about the United Kingdom line of cases (at [52]): In those cases, legal causation was extended beyond the limits of factual causation. In the result, a new head of tortious liability appears to have been created.

[page 303] Given that the High Court is reluctant to create new tortious causes of action, it seems unlikely that it will approve the Fairchild line of cases. In the recent decision of Alcan Gove Pty Ltd v Zabic [2015] HCA 33 the court, while again not formally examining the case, noted in passing (at [15]) that Fairchild ‘has not to date been recognised’ in Australia. For the purposes of Australian law, then, a defendant’s action will still need to be shown on the balance of probabilities to have made a ‘material contribution’ to the harm, and not merely to have increased the risk of the harm occurring. It should be noted that, while the expert evidence in the United Kingdom cases was held to establish that mesothelioma could be caused by a ‘single fibre’ of asbestos (making determination of

which of multiple employers had caused the harm almost impossible), the evidence accepted in the Australian Booth litigation was that the ‘single fibre’ theory was no longer valid, and that the disease was more likely where more exposure had occurred: see [79]–[82]. Hence it may be that the precise issue presented in Fairchild will not arise in future in Australia, if this differing medical evidence continues to be accepted by the courts. In Allianz Australia Ltd v Sim; Workcover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (in liq) v Sim [2012] NSWCA 68, the New South Wales Court of Appeal accepted as admissible evidence that of Professor Henderson who rejected the single fibre theory, and who argued the more likely fact was that the disease was caused by an accumulation of fibres. If this is accepted by the courts generally, then there is no real problem in making a finding of causation against whichever was the largest source of exposure, and the Fairchild line of authority will not be needed in this area. This approach was followed recently in BHP Biliton Ltd v Dunning [2015] NSWCA 55 at [2]. 5.64 Another issue relating to causation is the status of epidemiological evidence. In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29 (Seltsam), the court had to decide whether exposure to asbestos had caused the renal carcinoma (cancer of the kidney) suffered by the plaintiff. Spigelman CJ gave an excellent review of the legal status of epidemiological studies. He said (at [59]–[60]): Epidemiology is the study of the distribution and determinants of disease in human populations. It is based on the assumption that a disease is not distributed randomly in a group of individuals. Accordingly, subgroups may be identified which are at increased risk of contracting particular diseases. Epidemiological evidence identifies associations between specific forms of exposure and the risk of disease in groups of individuals. Epidemiologists do make judgments about whether a statistical association represents a cause–effect relationship. However, those judgments focus on what is sometimes called in the epidemiological literature ‘general causation’: Whether or not the particular factor is capable of causing the disease. Epidemiologists are not concerned with ‘specific causation’: Did the particular factor cause the disease in an individual case?

On the legal status of such studies, he said (at [78]–[80], [98]): Epidemiology is, as I have noted above, concerned with the study of disease in human populations. It is not, of itself, directed to the circumstances of an individual case.

[page 304] For the purpose of determining whether exposure to a particular substance is the legal cause of a particular disease, epidemiology only provides evidence of possibility. Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn. The common law test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility … The Courts must determine the existence of a causal relationship on the balance of probabilities. However, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility. Epidemiological studies and expert opinions based on such studies are able to form ‘strands in a cable’ of a circumstantial case. [emphasis added]

That is, epidemiological evidence is relevant and may be used to establish causation. However, the evidence must be weighed carefully and then evidence produced not only that some people in the plaintiff’s situation contract a certain disease due to a certain factor, but also that in this specific case the plaintiff’s disease was due to this factor. In particular, his Honour seemed to indicate that in most circumstances, while the evidence of a specialist in epidemiology would be accepted on the ‘general’ issue of whether a certain factor is likely to cause a certain disease, such evidence is not really admissible on the specific clinical connections in an individual plaintiff, if the epidemiologist does not have appropriate clinical qualifications.28

In the end in Seltsam the Court of Appeal, by majority, found that the trial judge had failed to give proper weight to all the relevant studies, and that in the circumstances (including the fact that no asbestos had been found in this particular plaintiff’s kidney) causation had not been established. Spigelman CJ stated (at [174]): In my opinion, the extent of increased risk indicated by all but one, or perhaps two, of the epidemiological studies is too small to justify an inference of causation, either alone or in combination with other factors including biological plausibility, the laboratory experiments and the expressions of professional opinion which were, in large measure, based on the epidemiological evidence.

The case as a whole is well worth reading for those interested in the area of epidemiology.29 [page 305]

Measure of damages 5.65 Once liability in the tort of negligence has been made out, the plaintiff is entitled to an award of money as ‘damages’. How does the court calculate what amount of damages will be paid? The High Court commented in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 527: The distinction between ‘damage’ and ‘damages’ is significant. Damages are awarded as compensation for each item or aspect of the damage suffered by a plaintiff, so that a single sum is awarded in respect of all the foreseeable consequences of the defendant’s tortious act or omission.

The courts distinguish between three major types of damages at common law: compensatory, aggravated and exemplary. As the last two are fairly rare we will touch on them first, before turning to the much more common area of ‘compensatory’ damages. Aggravated damages

5.66 Aggravated damages are awarded where the plaintiff in a tort action has suffered some special indignity as well as physical injury. They are not often awarded in cases of negligence, but have been a possibility. In New South Wales, since 20 March 2002 a court has not been able to award aggravated damages in a general negligence action based on personal injury, as a result of s 21 of the CLA.30 Note, however, that aggravated damages are not abolished by the WCA 1987, and hence are probably still available in the case of actions by an employee against an employer. Exemplary damages 5.67 Exemplary damages are specifically said to be designed, not as compensation, but as means of punishing the wrongdoer for action that is clearly ‘high-handed’ and in disregard of others. The English courts have restricted the circumstances in which they will award exemplary damages since the decision of the House of Lords in Rookes v Barnard [1964] AC 1129. But in Australian Consolidated Press v Uren (1966) 117 CLR 185 the High Court refused to follow the House of Lords. In recent years it was thought that exemplary damages would not usually be awarded in personal injury cases, but the decision of the High Court in Lamb v Cotogno (1987) 164 CLR 1 affirmed that exemplary damages are available when appropriate in such cases. The court said that such damages may be awarded where there is a ‘conscious and contumelious disregard for the plaintiff’s rights’: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 471 per Brennan J. [page 306] 5.68 An example of an award of exemplary damages in a case involving industrial safety was Midalco Pty Ltd v Rabenalt [1989] VR 461. The plaintiff had contracted mesothelioma from exposure to

asbestos while working at the defendant company’s blue asbestos mines. The judge hearing the case found that there were completely inadequate ventilation procedures at the mine, and also that there was more than ample evidence by the time that the plaintiff was working in the mine (in 1960) that exposure to asbestos was a danger to health. In particular, the company had been the subject of a report to parliament about its dangerous work practices in 1959, and knew that a number of its employees were already suffering from asbestosis. In the circumstances the jury awarded the sum of $250,000 for exemplary damages. The company had clearly carried on its operations with a callous disregard for the health of its employees, and had recklessly chosen not to inform itself about the dangers of asbestos.31 5.69 In New South Wales the Court of Appeal has confirmed that, in a case where an employer’s breach of duty has amounted to a ‘contumelious disregard’ for the worker’s safety, exemplary damages would be available at common law: see Trend Management Pty Ltd v Borg (1996) 72 IR 16. The trial judge in this case described the actions of the employer in this way (at 72 IR 19): The defendant chose not to install an effective dust extraction system because it preferred to use its capital expenditure on other capital items. To increase production and profits the first defendant was prepared to surrender its obligations to protect the health and well being of its employees, including the plaintiff, in order to maintain its preferred priority in capital expenditure. It was mindful only of its own interests and acted arrogantly towards the plaintiff by placing its own interests above the welfare of its employees. In doing so it showed such an intentional and reckless disregard for the plaintiff’s health that its conduct is in my view deserving of the court’s disapprobation. The first defendant refused to engage in expenditure on safety in the workplace and knowingly exposed its employees to serious risk of injury. It showed an indifference to the plight of its employees by abandoning them to a polluted environment. In doing so it was guilty of a conscious and contumelious disregard for the health of the plaintiff.

In this particular case the Court of Appeal overturned the award of exemplary damages, as the employer had tried to take some

steps to minimise the risk. However, it warned that an award of exemplary damages in an appropriate case could justifiably be made in the case of behaviour of the sort described by the trial judge. In Amaca Pty Ltd v Banton [2007] NSWCA 336, the court assumed that exemplary damages remained available for an asbestos-related disease. Similar awards have been made in the United States where companies have been shown to carry on producing an unsafe product because they calculate that the cost of damages actions will be less than the profit they will continue to make. [page 307] 5.70 Exemplary damages have been discussed here as it appears that they provide a good means of deterrence against coldlycalculating behaviour of the kind mentioned above. However, currently the WCA 1987 s 151R abolishes exemplary damages in claims for damages by employees arising out of general workplace injury. In addition, since 20 March 2002, the CLA s 21 has abolished exemplary damages in all negligence personal injury claims. Nevertheless, in future the law may change to once more allow this type of damages award.32 Compensatory damages 5.71 Under the heading of compensatory damages the courts in a general negligence case aim to make a monetary order which will, so far as possible: … put [the plaintiff] in the same position as if he had not sustained the injuries.33

In doing this the courts have traditionally held that they may order damages under the following headings:

1.

2.

damages for economic loss:34 (a) loss of actual earnings up to time of trial; (b) loss of future earning capacity; (c) expenses of medical treatment and rehabilitation up to the time of trial; (d) future expenses of the kind mentioned in (c); and (e) extra expenses such as domestic help. damages for non-economic loss: (a) pain and suffering; and (b) loss of amenities.

Some of these items — for example, past medical expenses and past earnings lost — can be quantified fairly exactly. However, most are almost impossible to guess, and the non-economic aspects are literally impossible to represent by exact sums of money. [page 308] In Australia, recovery of some of these heads of damage in workplace negligence claims has been for some years restricted by workers’ compensation legislation. We will deal with these limitations and similar limits now imposed on other personal injury claims by legislation such as the CLA, discussed below at 5.86ff.

Statute of limitations and disease claims 5.72 One other important matter affecting the amount of damages that can be recovered in this area is the issue of limitation of actions.

Limitation generally 5.73 Generally, the law provides that there are time limits within which certain actions must be brought. It is thought to be undesirable for people to ‘sit on’ potential claims and then attempt to make the claim some years after the injury has occurred. Thus, the Limitation Act 1969 (NSW), for example, provides that, in general, a claim in contract or tort must be brought within six years of the cause of action arising. However, special rules apply in the case of personal injuries, as we will see below at 5.75, and importantly a separate set of rules again applies when an employee brings such an action against an employer. A person is also only allowed one ‘bite of the cherry’. The general principle is that an action for personal injuries resulting from the same cause can only be brought once: damages must be estimated at the time of the trial, and thereafter no further action can be brought. Statute of limitations: problems in disease cases 5.74 In the area of common law claims relating to employment, the problems raised by time limits often occur in the case of a claim for disease caused by working conditions, particularly where the onset of the disease, or at least the obvious symptoms of the disease, are delayed. The United Kingdom case of Cartledge v E Jopling & Sons Ltd [1963] AC 758 illustrates the problem. Between 1939 and 1950 the plaintiff was negligently exposed to silica dust at work through failure of the employer to provide adequate ventilation. The danger ceased in 1950, but it was only after 1950 that it was discovered that the plaintiff had contracted pneumoconiosis. He commenced an action for damages in 1956. At the time, the statute of limitations in England provided that actions must be brought within six years. While regretting the result, the House of Lords held that he

could make no claim. It was not possible to say that the damage only occurred when the physical symptoms became obvious, because otherwise a person who had not yet manifested any symptoms but who could prove that the disease was present could not recover. The relevant damage was complete before 1950, and even though the plaintiff was not aware of it, his claim was barred under the English law in force at the time. 5.75 In 1990, the Limitation Act 1969 (NSW) was amended to provide that the limitation period for an action for damages for personal injury founded on negligence [page 309] would be three years instead of six. This limitation applied to accidents occurring on or after 1 September 1990: s 18A. When an employee brings an action for damages for personal injury against an employer in the workplace, then another set of rules is engaged: see the discussion at 5.91.35 However, in relation to actions not covered by those provisions (for example, an action by a contractor against a principal), the amendments made by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) to the Limitation Act have created a new regime, contained in Pt 2 Div 6 of that Act, which applies to injuries occurring after the commencement of that Division on 6 December 2002.36 5.76 The new limitation scheme is contained in Pt 2 Div 6 of the Limitation Act, in particular s 50C, which establishes a standard ‘3 year post discoverability limitation period’ and a ‘12 year long-stop limitation period’ for personal injury claims. The scheme operates by providing that the basic three-year limitation will only commence running from the date on which the plaintiff could have discovered the cause of action. This will be helpful in

disease cases where the onset of the disease is delayed by many years. The object of the ‘12 year long-stop’ period, however, seems to be to cut off claims after a maximum period of 12 years even if the discoverability period has not expired. Nevertheless, there is still some limited scope under new s 62A for someone to apply in special circumstances to have the 12-year period extended, although this extension cannot itself go beyond a period of three years after the injury was discoverable.

Factors reducing or spreading damages 5.77 Three factors need to be briefly mentioned which may result, even where a defendant has been shown to be negligent, in a reduction of damages payable, either because the plaintiff themself has been partly responsible for their own injury, or because someone else is also responsible. Contributory negligence 5.78 The first principle is known as contributory negligence. Accidents may not be entirely the fault of the apparent wrongdoer; there may also be some fault in the plaintiff’s behaviour. March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 provides an example of this: see 5.44. (Note that the phrase ‘contributory negligence’ is only used to refer to a case where it is claimed that the injured person was in some way responsible for their own injury; it is not applicable to a claim that someone else other than the defendant was partly responsible for the injury to the plaintiff. Such a claim, involving ‘joint tortfeasors’, is discussed separately below: see 5.82.) [page 310]

The old common law rule was that where the plaintiff was in some way at fault they could recover nothing. This rule has now been overturned by statutory reform in all Australian jurisdictions. In New South Wales the relevant statute is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Pt 3 s 9. The court is given power to reduce the damages otherwise payable in proportion to the negligence of the plaintiff. In effect this means that the court ‘parcels out’ or ‘apportions’ the blame between the two parties, so that in the end between them they will bear 100% of the damages. 5.79 The High Court has held that the doctrine of contributory negligence in relation to workplace accidents operates in the same way as it does in other areas of the law of negligence: Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 36. However, mere momentary inattention or carelessness in a busy workplace will not necessarily amount to sufficient negligence to reduce an award of damages.37 As the court in McLean v Tedman (1984) 155 CLR 306 at 315 said: It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact. As Windeyer J observed in Sungravure (at p 37), when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to ‘inattention bred of familiarity and repetition, the urgency of the task, the man’s preoccupation with the matter in hand, and other prevailing conditions’. It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, ‘excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man’.

In Lachley Meats Pty Ltd v Sinfield [2001] NSWCA 340, the worker was injured when lifting a heavy weight in an inappropriate way. The employer was found liable because workers had not received proper training in correct lifting techniques. In regard to a claim that the damages should be reduced on account of the worker’s

negligence, Sperling JA commented that for a worker to be guilty of contributory negligence, the damage they cause to themselves must be foreseeable to the worker (at [26]): So there was no finding that the plaintiff actually knew of the risk, and there was no evidence that he did. Was the risk nonetheless reasonably foreseeable to him? I would not find that it was. In particular, I would not find that, without the benefit of instruction, an unskilled workman ought reasonably to foresee a risk of injury arising from lifting in an awkward or twisted position. That contrasts with an employer, who is under a duty to take reasonable steps to be informed of safe working practices and to give such warnings and instruction to employees as is reasonably required to protect them from foreseeable risk of injury.

5.80 The High Court discussed this matter in detail in Czatyrko v Edith Cowan University [2005] HCA 14. Mr Czatyrko was loading a truck using a movable platform when he fell off the truck because the platform had been lowered without him noticing. [page 311] The question was whether Mr Czatyrko’s contributory negligence should reduce his award of damages. The court commented (at [18]): In the present case, the appellant did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant’s attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than ‘mere inadvertence, inattention or misjudgment’.1 It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made. 1.

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310.

Contributory negligence is ultimately a question of whether the plaintiff’s carelessness for their own interests means they could be responsible for the relevant injuries they have incurred.38 In Kubovic v HMS Management Pty Ltd [2015] NSWCA 315, the plaintiff worker had the relevant control in the workplace in terms of the moving and storing of boxes. He engaged in contributory negligence where he placed boxes at such a height in circumstances that, if he moved them, he had not given himself enough room on the floor if a box was suddenly to fall. 39 5.81 Where an award of damages would be payable in the case of a workplace injury, the WCA 1987 s 151N(2) sets a lower limit on the extent to which the award may be reduced on account of contributory negligence. It provides: 151N Contributory negligence — generally … (2) Damages for deprivation or impairment of earning capacity are not to be reduced because of contributory negligence below the amount that the court estimates would have been payable by way of a commutation of weekly payments of compensation under section 51 if the person concerned were eligible to be paid a lump sum under that section. …

[page 312] Effectively, even a worker who is partially responsible for their own injury will be awarded an amount representing what they would have received had they simply been receiving the statutory weekly payment: see the discussion in Chapter 11. We saw in Chapter 3 that it was previously arguable that an award of damages obtained in a workplace injury action based on breach of the implied contractual duty to take care for safety (as distinct from the duty in tort which we are considering in this

chapter), would not have been subject to reduction on account of the worker’s contributory negligence.40 As we also saw, however, that situation has now been changed by the repeal and reenactment of the relevant part of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) so that it now clearly allows a reduction in damages on account of contributory negligence in a case based on a breach of the normal contractual duty of care.41 Joint tortfeasors 5.82 This curious phrase refers to the situation where two or more people together (other than the plaintiff), are responsible for the injury or damage. It covers not only the situation where both people have been personally negligent, but also the vicarious liability situation, where an employer and an employee may both be held liable for a tort. The common law rule previously denied joint liability; if the plaintiff could find one person at fault they could recover the full amount of damages from them, and that defendant had no right to sue anyone else. But statutes have now modified the rule: see, for example, the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Pt 3. In accordance with this legislation, one ‘joint tortfeasor’ now has the right to seek a contribution to an award of damages made against them, from other joint tortfeasors. The amount will be apportioned between the various defendants according to the court’s view of their respective share in causing the plaintiff’s damage. 5.83 We have seen already, in 3.103, that the Employees Liability Act 1991 (NSW) prevents an employer from suing an employee for damages occurring as a result of a workplace accident. However, an employer may seek a contribution from some other (non-employee) party involved: see Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 (a case involving an allegedly negligent doctor). For a case involving apportionment of responsibility for a

workplace injury, see McDonalds Australia Ltd v Therma Truck Pty Ltd [2002] NSWCA 268. An injury suffered by an employee of McDonald’s was held to be partly caused by the negligence of one of McDonald’s employees, and partly by the company that had manufactured some equipment which was found to be faulty. [page 313] There are a number of complexities in the provisions relating to joint tortfeasors that we will not be able to cover in this book. One decision which illustrates some of the difficulties that arise is Nau v Kemp & Associates [2010] NSWCA 164. In that case the Court of Appeal held that, where an injured worker has a claim against two possible defendants, and settles the claim against one by a ‘consent order’, they are still entitled to sue the other if they can show that they have not fully recovered all their damages. Voluntary assumption of risk 5.84 The doctrine of voluntary assumption of risk (sometimes known by its Latin tag volenti non fit injuria) played a major part in the early history of actions for employer’s negligence, but these days has a much more reduced role.42 The doctrine is that where an employee has ‘voluntarily assumed’ the risk of working in a certain situation, then the employer is not liable for any injury that may occur. Where the doctrine is applicable, it operates at common law as a complete defence. However, since the decision of the House of Lords in Smith v Baker and Sons [1891] AC 325 it has been the law that for the doctrine of volenti to apply not only must the dangerous situation be accepted in the sense that the person is aware of it, but it must also be shown that the employee actually consciously accepted the risk that they would not be able to recover damages in case of

injury. A number of cases have emphasised that the doctrine will very rarely be applied in the case of employment injuries: see, for example, the comments of the New South Wales Court of Appeal on this issue in Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371 at [104]–[105]. The discussion in Wyong Shire Council v Vairy [2004] NSWCA 247 at [297]–[312] establishes that, even in areas other than workplace claims, the defence is hard to establish because it involves proof that the plaintiff (subjectively) ‘fully comprehended the nature and extent of the relevant risk’: at [312]. Brooks points out that it is likely that the doctrine will only survive in cases where the employment itself is inherently dangerous, and where the employee is engaged to confront the danger.43 One example is Mulcahy v Minister for Defence [1996] 2 WLR 474, where the House of Lords held that the Ministry for Defence owed no duty to provide a safe workplace to a soldier serving with the Allied forces in the Gulf War. Presumably, however, apart from the general hazards of war, it might in an appropriate case be possible to find that in some collateral matter lying within the control of the Ministry there had been negligence. The United Kingdom Supreme Court later found that the United Kingdom military could be sued for negligence in particular combat situations.44 [page 314] In Australia, the military has not been held liable for any such combat-related negligence.45 The status of soldiers under Australian law is special in that, for example, their engagement can be terminated with or without cause and they are not under an employment contract.46 The Veterans’ Entitlements Act 1986 (Cth), the Safety, Rehabilitation and Compensation Act 1988 (Cth) and the Military Rehabilitation and Compensation Act 2004 (Cth) apply to issues such as compensating war-related injuries and

diseases, depending on the date and nature of the service or injury. 5.85 In New South Wales the defence of volenti is no longer a complete defence. The WCA 1987 s 151O provides: 151O Defence of voluntary assumption of risk The defence of volenti non fit injuria is not available in an action for the award of damages but where that defence would otherwise have been available the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured or deceased person was negligent in failing to take sufficient care for his or her own safety.

In effect, even where the stringent requirements of the doctrine are satisfied, it will still be a question whether the employee was failing to take proper care for their own safety. Limitations on rights to common law claims: recent reforms 5.86 Having discussed the different types of common law claims for damages, you should be aware of the limitations that have been imposed under statute law on using those rights. Some of those limitations arise from the fact that there is a parallel system for recovery of compensation for workplace injury — the workers’ compensation scheme. Limits of this nature apply in all Australian jurisdictions, and indeed in some places a common law action against an employer is, or at times has been, completely barred. We will consider the New South Wales position in some detail below, but the following table summarises the situation in the eight other Australian jurisdictions.47 [page 315] Table 5.3: Jurisdiction

Availability of common law workplace injury actions (other than NSW) Common law action

If so, conditions for common law action (summary)

ACT Cth

available? Yes Yes, limited

NT Qld

No Yes

SA

Yes

Tas

Yes

Vic

Yes

WA

Yes

No limitations. Limited to damages for non-economic loss. The employee must have a successful permanent impairment claim payable under the Act: Safety, Rehabilitation and Compensation Act 1988 (Cth) s 45. Irrevocable election to sue must be made, damages capped. (See Return to Work Act (NT) s 52 for the prohibition.) If the worker has a work-related impairment of less than 5%, the worker must decide to either accept a lump sum payment or seek damages: Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 189 and 193A. Under s 237 no one other than the worker can seek damages. Caps apply. See Return to Work Act 2014 (SA) ss 70–94 for the limitations. These include: liability for psychiatric injury only if employer is the ‘primary’ cause of such (but no liability for ‘consequential’ mental harm); worker must have at least 30% permanent impairment with psychiatric and physical impairment assessed separately: s 72. No damages may be awarded for nervous shock to nonworkers: s 84. Worker must have at least 20% whole person impairment: Workers’ Rehabilitation and Compensation Act 1988 (Tas) s 138AB. No cap applies if threshold is met. The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) applies to workers injured on or after 1 July 2014 with a ‘serious injury’: ss 324–335, 360–365. Proceed to hearing if conference unsuccessful: s 333. ‘Serious injury’ requires an impairment of 30% or more: s 335. Total damages are capped: ss 340, 342. A dependent of a worker may seek action under the Wrongs Act 1958 (Vic): s 366. For workers injured on or after 20 October 1999 but before 1 July 2014, with a ‘serious injury’: Accident Compensation Act 1985 (Vic) s 134AB. For ‘economic loss’, worker must prove they have suffered and will continue to suffer a loss of earning capacity of 40% or more: s 134AB(30). Total damages are ‘capped’. Worker must have suffered whole person impairment of at least 15%: Workers’ Compensation and Injury Management Act 1981 (WA) s 93K. Caps apply unless the impairment is greater than 25%.

[page 316]

Limits arising under Workers Compensation Act 1987 (NSW) 5.87 We will be discussing the statutory workers’ compensation system in Chapter 11. The statutory scheme is not the same as common law recovery; it sets out very specific amounts that can be awarded, and conditions entitlement, not on a fault-based court ruling, but on a relevant ‘connection’ with the workplace. But because the insurance paid by employers covers both liability under the statutory scheme and liability at common law (and so a reduction in common law liability will mean a reduction in insurance premiums paid by employers), a part of most of the statutory schemes imposes limits on what can be recovered at common law. Since we are dealing in this chapter with common law damages it is appropriate to consider the specific limits imposed by the WCA 1987 on common law negligence claims brought by employees against employers at this point in the book. The details of the statutory scheme itself will be covered in Chapter 11. The focus here can only be on one jurisdiction, New South Wales. But similar limits (as noted in Table 5.3) will need to be taken into account in other states and territories. 5.88

The WCA 1987 Pt 5 Div 3 s 151E(1) applies to:48

151E — Application modified common law damages (1) … an award of damages in respect of: (a) an injury to a worker, or (b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker’s employer.

Note that this means that the restrictions considered here do not affect an action brought by an independent contractor against a principal, nor do they restrict actions by employees against other parties such as manufacturers of defective equipment.49 However,

the restrictions mentioned below (see 5.94) under the CLA will now apply to those actions. The New South Wales workers’ compensation scheme, then, allows for common law damages actions by employees as an alternative remedy to statutory workers’ compensation benefits, but with a number of restrictions. The easiest way to analyse the present situation is to consider the issues of economic and noneconomic loss separately. [page 317] Non-economic loss 5.89 The New South Wales Parliament has abolished completely any entitlement to recover common law damages for noneconomic loss such as pain and suffering in respect of a ‘work injury’. WCA 1987 s 151G(1) provides: 151G Only damages for past and future loss of earnings may be awarded (1) The only damages that may be awarded are: (a) damages for past economic loss due to loss of earnings, and (b) damages for future economic loss due to the deprivation or impairment of earning capacity

Damages for ‘pain and suffering’, then, are no longer recoverable. Economic loss 5.90 Recovery for ‘economic loss’ is available, but restricted under WCA 1987 s 151H to situations where the worker has suffered a ‘degree of permanent impairment’ of 15% or greater (or where the worker dies). The degree of impairment is to be assessed

under guidelines produced by the State Insurance Regulatory Authority (SIRA), the statutory body responsible for administering the New South Wales workers’ compensation scheme.50 Part 7 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWCA 1998) also deals with the issue. In addition, statutory maximum amounts are specified for items that would be regarded as economic loss: Loss of weekly earnings (s 151I) is to be restricted to the maximum weekly amount payable under s 35 of the Act. Payment for home care services (under the principle established in the High Court case of Griffiths v Kerkemeyer (1977) 139 CLR 161) has effectively been abolished by the repeal of s 151K and the limitations imposed by s 151G. (Now s 60AA of the Act, however, provides for statutory compensation for ‘domestic assistance’ in certain cases.) Those applying for common law damages are required to comply with a special procedure for making common law work injury damages claims, which is set out in WIMWCA 1998 Ch 7 Pt 6. This involves a requirement for certain documents [page 318] to be filed before proceedings commence, and compulsory mediation to attempt to resolve disputes. Other modifications of common law principles 5.91 In addition to these restrictions there are a number of other modifications of ordinary common law principles. The WCA 1987 contains its own regime imposing specific time limits for the commencement of common law proceedings. Section 151C provides that a common law claim may not be

commenced within six months of the accident, unless the employer completely denies liability.51 Section 151D(2) provides that (at the other end of the time limits), the action must be commenced within three years of the injury being received, unless with the leave of the court. As noted previously, s 151D(3) provides that the Limitation Act 1969 (NSW) does not apply to workplace injuries. 5.92 The Court of Appeal gave a detailed analysis of the approach that should be adopted in extending time under s 151D in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104 (Itek). Ipp JA, in particular, analysed decisions of the High Court and other courts on the matters that should be considered in extending time where there were no detailed statutory criteria governing the decision. His Honour concluded (at [87]–[88]): In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is ‘what is fair and just?’ (per Gleeson CJ in Salido (1993) 32 NSWLR 524), or ‘what does the justice of the case require?’ (per McHugh J in Brisbane South Regional Health Authority (1996) 186 CLR 541). In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J referred.52 I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance: Nowlan v Marson Transport Pty Limited [2001] NSWCA 346 at [34]–[36]; Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 at [9]. Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused.

[page 319] A number of cases since have applied the principles laid out in Itek in deciding whether or not to grant an extension of the limitation period: see, for example, Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254; New South Wales v Donnelley [2004] NSWCA

133; Sea Coatings (Australia) Pty Ltd v Pascoe [2008] NSWCA 54; Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447. The WCA 1987 also provides that contributory negligence applies to reduce damages for breach of statutory duty: s 151N(3). Exemplary damages in common law actions by employees are now barred by s 151R. Actions against third parties 5.93 WCA 1987 s 151Z preserves the right of an employee to take action against a third party other than the employer, where the employee’s injury results from the action of the third party. In general, the restrictive provisions of the WCA 1987 will not apply as against a stranger. However, the worker will not be allowed to ‘double-dip’ by retaining compensation and receiving damages; compensation paid under the Act must be repaid to the insurer out of any damages award against a stranger. There are also many complications that arise when both the employer and a third party are liable as ‘joint tortfeasors’: see 5.82ff above for a discussion of this term. In a recent decision, Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132, Basten JA summarised the operation of the legislation in this way (at [27]): Because the Workers Compensation Act 1987 (NSW), Part 5, Div 3, limits the damages which can be recovered from an employer on a claim for a work injury, the damages assessed against a third party tortfeasor under the general law will generally be greater than those assessed as against the employer. The disparity gives rise to an issue of principle when the damages are apportioned, having been calculated on different bases. Where the injured worker brings a claim against a third party tortfeasor, which in turn seeks contribution from the employer determined at, say, 30% of the loss payable by it, assessed under general law principles, the employer will lose, in part, the protection given by the Workers Compensation Act. If, on the other hand, the third party tortfeasor recovers 30% of the damages, as assessed against the employer, it will lose the full benefit of its entitlement to contribution. The policy of the Act is that ‘the burden of the reduction that it makes in the amount of contribution recoverable should fall on the worker, not on the nonemployer wrongdoer’: J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142 at [38] (Campbell JA).

It has been held by the New South Wales Court of Appeal that when there are two tortfeasors responsible for a worker’s injury, the worker can recover the full amount of damages to which he or she is entitled from either of those liable, and leave it up to whoever pays to recover if they can from the other.53 [page 320] The operation of various parts of s 151Z can be very complicated, and this book does not explore them here. For a recent case dealing with some of the issues, see Gallagher Bassett Services Pty Ltd v Murdock [2013] NSWCA 386; (2013) 86 NSWLR 13 at [40]–[55]. Limitations under Civil Liability Act 2002 (NSW) 5.94 While the WCA 1987 imposes a number of limits on damages payable to employees, other legislation now imposes limits on damages payable in common law workplace injury claims not involving an employee suing their employer. It is important first to note the background of that legislation. In the period 2001–02, for a variety of reasons there was a great increase in calls for stricter limitations to be imposed on all civil actions for personal injury. The emotional, if not the logical, centre of these calls probably lay in two events which were unrelated but, in the eyes of the public, appeared to bear some connection: the terrible events of 11 September 2001, and the collapse of HIH, one of Australia’s largest insurance companies. The terrorist attack raised the prospect of massive insurance claims for death and property damage; the collapse of HIH raised the prospect that the insurance system could not cope with possible payouts in relation to this and other such events. Whatever the reason, there was a growing sentiment that damages for personal injury claims were ‘out of control’, and this

was exacerbated by reports of a number of cases where large damages awards were made in circumstances that seemed, in the public perception, to be undeserving. Reports abounded of increases in ‘public liability’ insurance premiums that meant that community groups and local government bodies could no longer operate effectively. The result was a general consensus among Australian governments that ‘something’ needed to be done. Whether this was valid or not (or whether, as some claimed, insurance companies had long been ‘undercapitalised’ and now needed to increase their premiums to a sensible commercially viable level),54 the solutions to the problem were seen to lie in restricting the ability to bring common law compensation claims. 5.95 At the federal level an inquiry led by a senior New South Wales (and former Western Australian) Supreme Court judge, Justice Ipp, handed down a number of recommendations at the end of September 2002.55 Even before this report had been finalised, in New South Wales the Labor Government announced a ‘two-stage’ process for tort reform. Stage 1 was carried out by the initial version of the Civil Liability Act 2002 (NSW) (CLA), which received the Royal Assent on 18 June 2002 but [page 321] commenced operation (for most purposes)56 on 20 March 2002 when the reforms were announced. Stage 2, which picked up most of the other recommendations of the Ipp Report, was implemented by the Civil Liability Amendment (Personal Responsibility) Act 2003, most of which commenced on 6 December 2002.57 Later amendments were introduced to deal with specific technical problems or perceived issues such as the award of damages for the costs of raising a healthy child after failed sterilisation,58 awards of damages to

offenders in custody,59 and the possibility of damages awards being made against those who donate food to charity.60 The reforms introduced by the CLA are extensive, and space precludes a detailed examination of them. In addition, of course, separate legislation was introduced in each Australian state and territory, and the Commonwealth, dealing with these issues. However, brief mention will be made here of the New South Wales legislation, as it raises most of the matters dealt with in the other jurisdictions.61 5.96 It should be noted first of all, however, that most of the CLA does not apply to common law claims brought by employees in relation to workplace injuries. That is due to the operation of s 3B(1)(f), which provides as follows: 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows … (f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies — the whole Act. …

[page 322] WCA 1987 Pt 5 Div 3, as noted previously (see 5.88), applies to negligence actions by a worker against their employer. However, the provisions of the CLA will apply to actions brought by independent contractors, and by employees against third parties such as manufacturers of machinery. 5.97 In some ways the provisions of the CLA seem designed to bring general negligence actions in line with the provisions previously applicable under the WCA 1987 only to actions by employees. On the other hand, in some areas the CLA is designed

to effect fundamental change to some key areas of the general law of negligence, changes which by virtue of s 3B will not be applicable to workplace injury actions brought by employees. To briefly summarise, some of the features of the CLA are: Part 1A redefines a number of key concepts of the law of negligence; for example: – ‘foreseeability’ is referred to in s 5B(1) as being something ‘of which the person knew or ought to have known’; this seems to be a higher standard than the ‘not far-fetched or fanciful’ common law standard;62 – in the area of causation, statements by a plaintiff as to what they would have done (for example, in terms of heeding a warning) are mostly to be disregarded: s 5D(3)(b); – there is no duty to warn of an ‘obvious’ risk (s 5H(1)), especially in the case of ‘dangerous recreational activities’: s 5L(1); – professionals need only exercise a standard of care ‘widely accepted by peer professional opinion’: s 5O(1); – a non-delegable duty will be treated as if it were the same as vicarious liability: s 5Q; and – s 5S operates to allow the court to reduce damages by 100% if the court finds it just and equitable to do so; Part 2 imposes limits on personal injury damages; for example: – damages for economic loss are limited to an amount equivalent to three times the average weekly earnings: s 12; – limits are placed on the amount which may be awarded for ‘gratuitous attendant care services’, usually provided by a family member: s 15; – damages for non-economic loss (‘pain and suffering’ damages) may only be awarded where the severity of the loss is at least 15% of ‘a most extreme case’, and a cap is placed on the total award: s 16;

– –

exemplary and aggravated damages cannot be awarded: s 21; and the court is encouraged to provide a ‘structured settlement’ rather than a lump sum: s 22; [page 323]

Part 2A imposes strict limits on the recovery of damages by offenders in custody; new detailed provisions in Pt 3 deal with liability for ‘nervous shock’; s 30 parallels the provisions of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 4 by requiring that the plaintiff either directly witness the event or be a close relative;63 Part 5 contains a number of provisions relating to ‘public authorities’, including in s 45 a restoration of the ‘non-feasance’ rule abolished in Brodie v Singleton Shire Council [2001] HCA 29; Parts 6–10 include provisions relating to intoxication of victims, criminals as plaintiffs, so-called ‘good Samaritans’ who may face negligence actions after voluntarily coming to someone’s assistance, liability for food donations, volunteers generally, and the effect of apologies; Part 11 excludes recovery of the costs of raising a child in an action for negligence based on the birth of an unwanted child (except where the child has a disability). The Part is obviously designed to overcome the decision of the High Court in Cattanach v Melchior [2003] HCA 38, which held that such damages were recoverable at common law; and Part 12 now incorporates rules relating to trespass or damage committed by aircraft which were formerly contained in other state legislation. The interpretation of all these provisions is gradually being clarified by a course of judicial consideration. However, it is

worthwhile here to mention two key areas that may have an impact on actions in the workplace involving non-employees and non-employers: foreseeability and contributory negligence. (Note that the impact of Pt 3 on ‘mental harm’ claims was discussed in Chapter 4, as it relates to the question of ‘duty of care’.) Foreseeability under Civil Liability Act 5.98 Section 5B, contained in Pt 1A of the CLA, Div 2 (headed ‘Duty of Care’) reads as follows: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. [page 324] (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.

It now seems clear that s 5B will apply in a court’s inquiry at the ‘breach’ stage, not the ‘duty of care’ stage, despite the misleading heading. In Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 at [13], the High Court noted: Although ss 5B and 5C appear beneath the heading ‘Duty of care’, that heading is apt to mislead … Both provisions are evidently directed to questions of breach of duty.

‘Precautions’ refers to conduct which might minimise or remove the ‘not insignificant’ risk of harm.64 Breach is not established by the mere fact that there were measures that could have been done to reduce or avert the risk that eventuated.65 It is a question, as under the common law, of what reasonably could have been done.66 5.99 So what effect does s 5B have on the issue of foreseeability? The main difference is that it substitutes the phrase ‘not insignificant’ for ‘far-fetched and fanciful’. The change can be reflected in an adjusted version of the (non-authoritative) ‘Foster spectrum of foreseeability’: see Table 5.1 for the common law version. Table 5.4:

‘Foster spectrum of foreseeability’ including the CLA

Impossible ‘Farfetched and fanciful’

Insignificant Unlikely chance (less than 50%)

More likely Highly than not probable (more than 50% probability) Foreseeable under common law standard after Shirt Foreseeable under CLA s 5B(1)(b)

Certain

[page 325] Breach involves identifying the relevant risk of harm.67 The ‘not insignificant’ standard is different, but not very different, from the common law standard of ‘not far-fetched and fanciful’.68 As Villa points out, it is important in dealing with the concept of ‘not insignificant’ risk that it refers to the probability of occurrence of the particular event, not the ‘gravity’ of harm that might result.69 This view was supported by Campbell J in Wright v Optus Administration Pty Ltd [2015] NSWSC 160 at [89]. There, in applying s 5B to the facts of that case, his Honour ruled both that a risk to Mr Wright (signalled by the previously erratic behaviour of Mr George, known to Optus employees) was both ‘neither

farfetched nor fanciful’ (at [119]) and also was ‘not insignificant’: at [120]–[122]. In addition, in applying the ‘calculus’ of breach in a case governed by the CLA the court should, in addition to the common law factors, take into account under s 5B(2) (d) the ‘social utility’ of the risk-creating activity. Contributory negligence under Civil Liability Act 5.100 The CLA also has particular provisions on the application of contributory negligence: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

This is an objective test that differs from negligence by the defendant, in that it focuses on the worker’s contribution to the risk of injury without necessarily exposing others to that risk.70 This section requires the court to apply ss 5B and 5C above in order to determine whether a person has been contributorily negligent, although aspects of [page 326] common law may apply to the particular case.71 This is not just limited to factors listed above in s 5B(2).72

Further Reading Most of the books mentioned in the Further Reading list at the end of Chapter 4 contain extensive coverage of breach, causation, damages and statutory limitations. In addition, the following focus on matters dealt with in this chapter: J Goldring, ‘The Civil Liability Act 2002 (NSW)’ (2003) 6(3) Judicial Review 273–312. D Hodgson, ‘Suicide and the Law of Intervening Causation’ (2008) 16 Tor L Rev 69.

1.

For a discussion of ‘vicarious liability’, see Chapter 3.

2.

For a more recent case (out of many) where an employer was found vicariously liable for an employee’s breach of duty, see Fortescue (Junior) v Morrasey [2000] NSWCA 193. Crennan J (at [241]) specifically declined to comment on the issue, as it was not necessary to resolve it for this case; Callinan and Heydon JJ (at [213]–[227]) would have overruled the Shirt standard and replaced it with the formula that a risk which requires action should be ‘significant enough in a practical sense’. For more discussion, see the article by Foster (2007) on the Fahy decision in the Further Reading list at the end of Chapter 4.

3.

4.

5.

6. 7. 8. 9.

While not precisely on point (as it was an action for breach of statutory duty), the High Court’s comments in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6 suggest that the onus remains on the employee in most cases. For cases where the Civil Liability Act 2002 (NSW) is relevant (see 5.96 below), s 5C(c) of that Act notes that ‘the subsequent taking of an action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk’. It is unclear yet whether this rule changes the common law or merely enacts the principle the common law courts have already been applying. This was reaffirmed on appeal: Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108. See Richards v Hill & Hill [2010] NSWSC 949 for another shearing case. For further comments on the relevance of the ‘obviousness’ of a risk, see below at 5.34. See also Galjaardt v The Trade Centre for Furniture & Rentals Pty Ltd [2002] ACTSC 69 (experienced removalist injured because employer did not provide detailed list of

items to be moved, employee then attempted to move item without adequate help). 10.

11.

12. 13. 14. 15.

16.

17. 18.

19. 20.

21.

22.

See also Gomes v Metroform Pty Ltd [2005] NSWCA 171 (employer in breach by not providing proper system of work for employees to use when foreseeable misalignment of some heavy frames occurred). For a similar decision in a highly controversial case, see Waverley Municipal Council v Swain [2003] NSWCA 61, where the Court of Appeal held that a local beachside council did not breach its duty to the public by failing to erect signs warning of the dangers of swimming from the beach. But this decision was overturned by the High Court (see Swain v Waverley Municipal Council [2005] HCA 4) on the grounds that the initial jury verdict in favour of the plaintiff was within the area of a decision that could have been made by a reasonable jury. See Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 at [53] (Leeming JA). For more detailed comment see N Foster, ‘Another Tale of Two Divers’ (2006) 14 Torts Law Journal 115–23. That is, the alleged wrongdoer. ‘Tortfeasor’: someone responsible for the commission of a tort or wrong against someone else. For other support for the view that ‘obviousness’ alone is not a major element of the breach inquiry, see also Vairy per Gleeson CJ and Kirby J (at [7]–[8]), Gummow J (at [95]); and Mulligan per Gummow J (at [40]), Hayne J (at [52]). See, for example, Shire of Gingin v Coombe [2009] WASCA 92 holding that it was an ‘obvious’ risk to a motorbike rider travelling onto a beach with high sand dunes that he might be travelling too fast at the top of a dune and not able to stop before falling: at [71]. Hence the local council had no obligation to erect additional warning signs. See Strong v Woolworths Ltd [2012] HCA 5 at [57]. Interestingly, despite finding that the chain of causation was not broken, Ward LJ would have ruled against the worker on another issue — that of ‘remoteness’ — as in his view death by suicide was a different ‘sort’ of injury than death by accident in a factory. But the two other members of the Court of Appeal, Sedley and Wilson LJJ, disagreed on this point, and so the result was a finding in favour of the worker’s widow. See the article by D Hodgson noted in the Further Reading list at the end of this chapter for a good review of cases on this area. Similarly, in Pioneer Construction Material Pty Ltd v Millsom [2002] NSWCA 258, the court found that it had not been shown that the lack of counselling provided to a worker who had attended a number of serious vehicle crash scenes had caused the worker’s subsequent psychological problems. Interestingly, the court cited the first instance judgment of Miles CJ in the Australian Capital Territory Supreme Court in Gillespie, referred to above at 5.51, in coming to its decision: see [1995] 1 All ER 737 at 751. For an excellent analysis of this case, see S H Bailey, ‘Causation in Negligence: What is a Material Contribution?’ (2010) 30(2) Legal Studies 167–85. See also recent brief

23.

24.

25. 26.

comments on the case in Strong v Woolworths Ltd [2012] HCA 5 at [22]–[23]. See Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 at [24]. See also, for example, Coastwide Fabrication and Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [78]. For further details on this complex area see L Khoury, Uncertain Causation in Medical Liability, Hart, Oxford, 2006 and R Goldberg (ed), Perspectives on Causation, Hart, Oxford, 2011. See also more recently Zurich Insurance PLC UK Branch v International Energy Group Ltd [2015] UKSC 33. See also, in the same case, the comment of Kirby J (at [94]) that Australian law does not currently support the Fairchild/Barker view and that in the case in question that issue did not need to be resolved.

27. 28.

Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 340. See the discussion: at [148]–[150]. In this appeal the respondent was not allowed to object to the particular evidence because they had not done so at the trial. But his Honour’s comments strongly suggest that the evidence of specific causation given by the epidemiologist was inadmissible.

29.

See also comments on epidemiological evidence in Amaca Pty Ltd v Ellis [2010] HCA 5 at [62]–[65] and Amaca Pty Ltd v Booth [2011] HCA 53 at [86]–[91]. The general limiting consequences of the Civil Liability Act are discussed below at 5.94ff.

30. 31. 32.

See also Coloca v BP Australia Ltd [1992] 2 VR 441. For legislation in other jurisdictions abolishing exemplary damages in personal injury cases governed by that legislation, see Competition and Consumer Act 2010 (Cth) s 87ZE (in relation to actions mentioned in s 87E under the Australian Consumer Law); Civil Liability Act 2003 (Qld) s 52; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 19. The plaintiffs in Trend and Banton were able to argue for exemplary damages because ‘dust disease’ cases fall outside the area covered by the Workers Compensation Act 1987 (NSW): see Chapter 11 for more details. After the enactment of s 151R of the WCA 1987, exemplary damages were available in cases which were not based on the employment relationship (see 4.17ff for examples of these), and in actions against a manufacturer of defective products, against a government inspector, or against a company director. But exemplary damages in these actions would now be precluded by the Civil Liability Act 2002 (NSW) s 21.

33. 34.

Todorovic v Waller (1981) 150 CLR 402 at 412. Note that this use of the phrase ‘economic loss’ refers to the quantifiable monetary loss suffered as a result of a negligence claim, which may itself be based on personal injury. This is a different sense of the phrase ‘economic loss’ from that previously discussed in Chapter 4 at 4.67 when considering the existence of a duty of care.

35.

These are contained in the Workers Compensation Act 1987 (NSW) ss 151C–151D. Note that s 151D(3) provides that: ‘The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.’ Section 18A and other provisions are still relevant to injuries occurring between 1

36.

September 1990 and 6 December 2002; however, space precludes a discussion of these older provisions. 37. 38.

See also Commissioner for Railways v Ruprecht (1979) 142 CLR 563. See Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 at [124] (McColl JA), [137] (Ward JA), [152] (Adamson J).

39. 40.

Ibid, [126]–[127] (McColl JA), [137] (Ward JA), [152] (Adamson J). Following the decision of the High Court in Astley v Austrust Ltd [1999] HCA 6. As mentioned in Chapter 3 (see 3.86), Jones v Persal & Co [1999] QDC 189 was a case in the area of workplace negligence where the action was pleaded in contract and thus no reduction was possible for the worker’s alleged contributory negligence.

41. 42.

The amendments were made by the Law Reform (Miscellaneous Provisions) Amendment Act 2000 (NSW). For more detail, see A Brooks, Occupational Health and Safety Law in Australia, 4th ed, CCH, North Ryde, 1993 at [102] (historical situation) and [231] (for discussion of the more recent situation).

43. 44.

See Brooks, note 42 above. See Smith v The Ministry of Defence [2013] UKSC 41 at [77]–[101].

45. 46.

See Groves v Commonwealth of Australia [1982] HCA 21; (1982) 150 CLR 113. See C v Commonwealth of Australia [2015] FCAFC 113 at [22]–[24].

47.

See the summary in C Sappideen and P Vines (eds), Fleming’s The Law of Torts, 10th ed, Lawbook Co, Pyrmont, 2011, p 588 n 6. For a comprehensive overview, see Comparison of Workers’ Compensation Arrangements in Australia and New Zealand 2015, Safework Australia, June 2015, available at , Table 4.6, pp 110–12. Table 5.3 is indebted to that table, although note that the South Australian provisions have changed since Table 4.6 was produced, and the Table here is more accurate now. Including an action in contract: see s 151E(3).

48. 49.

50.

51.

52.

The only exception here may be that it is possible that the statutory extensions of the definition of ‘worker’ in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) Sch 1 might in some cases deem some contractors to be ‘workers’ for the purposes of WCA 1987 Pt 5. This is discussed in Chapter 11 at 11.13. See the decision in Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236, discussed in N Foster, ‘Deemed to Be Workers for Common Law Action’ (2008) 46(1) Law Society Journal 68–9. Prior to 1 September 2015 WorkCover NSW combined responsibility for workers’ compensation insurance and safety regulation. Under the State Insurance and Care Governance Act 2015 (NSW), which commenced on that date, responsibility for setting out impairment guidelines now rests with the SIRA established by that Act: see s 376 and the definition of ‘Authority’ in s 4(1) of the WIMWCA 1998. The High Court considered the effect of this ‘minimum delay’ provision in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 and Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33. These matters were: (a) As time goes by relevant evidence is likely to be lost; (b) It is oppressive to a defendant to allow an action to be brought long after the

circumstances that gave rise to it have passed; (c) It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period; (d) The public interest requires that disputes be settled as quickly as possible: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552 per McHugh J. 53.

54.

55. 56.

57.

58.

59.

60. 61.

62.

63.

See Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203. This is the normal principle of what is called ‘solidary liability’, and was held in this case to apply to workplace claims despite a previous decision in Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29 to the contrary. For an analysis of the statistics in Australia which concludes that there was in fact no ‘litigation crisis’ at the time of the reforms, see E W Wright, National Trends in Personal Injury Litigation: Before and After ‘Ipp’, Law Council of Australia, 26 May 2006, available at . The Report (which was issued in two stages) can be found online at . The main exception was that the government agreed that claims against itself which were notified in writing before 20 March would be able to proceed so long as a formal claim was filed in court before 1 September 2002: see CLA Sch 1[4]. New s 5N allowing a contractual waiver of duty of care in relation to recreational activities, and Div 7 relating to the award of ‘structured settlements’, commenced on 10 January 2003. The provisions of the amendments relating to ‘proportionate liability’ (new Pt 4) commenced on 1 December 2004. An issue following the decision of the High Court in Cattanach v Melchior (2003) 199 ALR 131; see Pt 11 of the CLA introduced by the Civil Liability Amendment Act 2003 (NSW) with effect from 19 December 2003. See the provisions in Pt 2A introduced by the Civil Liability Amendment (Offender Damages) Act 2004 (NSW) effective 19 November 2004, and slight amendments made to these by the Civil Liability Amendment (Offender Damages) Act 2005 (NSW), effective 14 April 2005. The Civil Liability Amendment (Offender Damages) Act 2007 (NSW) also made further amendments. See Pt 8A of the CLA introduced by the Civil Liability Amendment (Food Donations) Act 2005 (NSW), effective 1 July 2005. See the list of ‘tort reform’ legislation in H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2013, p 176 n 1. Despite the heading to Div 2 of Pt 1A of the Act, ‘Duty of Care’, it seems clear that, from the introductory words to s 5B, it is referring to the application of the question of foreseeability at the ‘breach’ stage rather than the ‘duty’ stage: ‘A person is not negligent in failing to take precautions against a risk of harm unless …’ [emphasis added]. This view is supported by comments of the High Court in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 at [13] noted below in discussing s 5B. Note, as mentioned previously (see 4.40ff), that the Law Reform (Miscellaneous

64. 65.

66.

67. 68. 69. 70. 71. 72.

Provisions) Act 1944 (NSW) will remain applicable to nervous shock claims brought by employees, due to s 3B and Sch 1 cl 11 of the CLA. For a history of the provision, see King v Philcox [2015] HCA 19 at [15]; State of New South Wales v McMaster [2015] NSWCA 228 at [235]–[250]. See Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 at [33] (Beazley P). See Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 at [52] (Leeming JA); Thornton v Sweeney [2011] NSWCA 244 at [131] (Sackville JA). See Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 at [52] (Leeming JA); Thornton v Sweeney [2011] NSWCA 244 at [131] (Sackville JA). See Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 at [95] (Beazley P), [192] (Barrett JA), [193] (Gleeson JA). See Sibraa v Brown [2012] NSWCA 328 at [49]; Shaw v Thomas [2010] NSWCA 169 at [44]. See D Villa, Annotated Civil Liability Act 2002 (NSW), 2nd ed, Lawbook Co, Australia, 2013, p 143, citing Benic v State of New South Wales [2010] NSWSC 1039 at [101]. See Waco Kwikform Ltd v Perigo [2014] NSWCA 140 at [1] (Beazley P), [2] (Macfarlan JA), [77] (Meagher JA). See Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 at [161]–[162] (Beazley P), [192] (Barrett JA), [193] (Gleeson JA). Ibid.

[page 327]

6 PROTECTION OF WORKPLACE SAFETY UNDER TORT LAW: BREACH OF STATUTORY DUTY

Aims The aims of this chapter are: to provide an overview of the common law rules in the tort of breach of statutory duty imposing liability for compensation for injuries suffered in the workplace by an employee; and to indicate the significance of those rules for workplace health and safety.

Objectives After completing this chapter, you should be able to: describe the elements of the tort of breach of statutory duty and how they are satisfied in an action by a worker in relation to a workplace injury; and set out the factors involved in deciding whether an action in

this tort is likely to succeed or not, and is likely to be worthwhile or not, including its interaction with other possible avenues for financial support after workplace injury.

Introduction: separate tortious action 6.1 We turn now from the area of negligence to another tort claim that has assumed a large role in the area of workplace injuries: the civil action for breach of statutory duty (BSD). In general, the tort of BSD gives a civil remedy in damages to someone who has been injured by another person’s breach of a statute. The first thing to note is that this action, where it is available, is a separate tort action, not to be confused with an action for negligence, or with a prosecution for breach of the statute.

Not prosecution for breach 6.2 First, it is not a criminal prosecution for breach of the statute. We have already noted the difference between a criminal and a civil action: see Chapter 1 at 1.4. [page 328] A criminal prosecution is an action taken by a public official on behalf of the Crown against someone in breach of a provision of the criminal law. If a fine or penalty is paid in a criminal proceeding, the normal rule is that it is paid to the Crown, not to the person injured. By contrast, the civil action for BSD is taken by the person injured, in a civil court, and they receive the benefit of any money ordered to be paid.

Not action in negligence 6.3 Second, however, the action is not an action in the tort of negligence. It is a separate action,1 and while the facts of a particular case may provide evidence that would also support a negligence claim, it is not necessary to prove every element of negligence. In particular, in some cases of action for BSD it may be possible to establish a breach without proof of negligence of any kind; the simple fact that something happened contrary to the statute will be enough. Breach of statutory duty is a tort where ‘the statute creates a civil right and the common law supplies a remedy (such as damages)’.2 See also the comments of Crennan and Kiefel JJ in Stuart v Kirkland-Veenstra [2009] HCA 15 at [130]: The action for breach of statutory duty, although itself a tort, is regarded as distinct from the tort of negligence.

Note that occasionally it has been suggested that the action should be abolished by the courts or by parliament;3 for a response to these suggestions, and a defence of the action, see N Foster, ‘The Merits of the Civil Action for Breach of Statutory Duty’ (2011) 33 Sydney Law Review 67–93. There is no doubt that currently the action continues to be available in Australia. There are a number of recent examples of superior courts applying the action in workplace actions where an action in negligence would not have been successful. In Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336, the plaintiff had to climb a ladder to install an uninterruptible power supply. The ladder gave way in this process, leading to her injuries. When suing the third party, the owner of the premises, her action for negligence was unsuccessful: see [32]–[42]. However, a breach of statutory duty under cl 73(1)(c) of the Scaffolding and Lifts Regulation 1950 (ACT) was found because access to the ladder was unsafe: see [68]–[71]. The Victorian Court of Appeal in Veljanovska v Verduci [2014]

VSCA 15 rejected an appeal from a jury finding that dismissed a negligence claim, but upheld the appeal for the BSD action based on the same facts. The court commented (at [28]): [page 329] While there will be cases where it can said that the establishment of a breach of a manual handling regulation causing injury must, on the relevant facts, also lead to the conclusion that the relevant defendant was negligent, this is not one of those cases. … [A] duty expressed in [the terms set out in the relevant regulation] sets a higher standard than that required by an employer to discharge his or her obligation to take reasonable care in respect of the safety of an employee.

The court also cited its previous decision, Pasqualotto v Pasqualotto [2013] VSCA 21,4 as support for the proposition that a finding of BSD may be made consistently with a finding of ‘no negligence’. The United Kingdom Supreme Court decision of McDonald v National Grid Electricity Transmission Plc [2014] UKSC 53 provides another example. Mr McDonald claimed that he had been exposed to asbestos in the 1950s as a regular visitor to a power plant, where he was collecting a by-product of the power plant in his employment as a driver for another company. He alleged that while waiting for loads to be prepared he would regularly be present in parts of the plant where asbestos was being mixed for ‘lagging’ pipes, and that this was what led to his disease. The claim in common law negligence failed, it not being shown that the limited exposure he had received created a foreseeable risk at the time. But he also made claims based on BSD founded on the breach of two regulations which he claimed covered the situation. His estate’s claims, based on breach of one regulation, succeeded by a majority in the Supreme Court.

Elements of action

6.4 What are the elements of the action for breach of statutory duty? Fleming’s The Law of Torts summarises the elements of the BSD action as follows: The elements of the civil action for breach of statutory duty … can be identified as: (a) the intention of Parliament to allow an action; (b) the plaintiff must fall within the ‘limited class’ of the public for whose benefit the statutory provision was enacted; (c) the damage suffered must also fall within the intended scope of the statute; (d) the obligation under the statute was imposed on the defendant; (e) the defendant must have breached the statute; and (f) that breach must have caused actual damage of some sort to the plaintiff.5

This summary was endorsed by Le Miere J of the Western Australian Supreme Court in Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 at [80], and also in Matton Developments Pty Ltd v CGU Insurance Ltd (No 2) [2015] QSC 072; BC201502597 at [261]. [page 330] The Victorian Court of Appeal has also endorsed element (c) mentioned above, that element being ‘does the harm that the plaintiff has suffered fall within the area of the harm against which the legislature intended to guard?’6 We will deal with each of these elements in turn as they relate to workplace safety.

Parliament must have intended that there be civil right 6.5 The first requirement is often the most difficult to determine in other legal areas, but is usually easily resolved in the workplace safety area. In the High Court case of Byrne and Frew v Australian Airlines Ltd (1995) 131 ALR 422 (Byrne and Frew), the majority (Brennan CJ, Dawson and Toohey JJ) commented (at 429): A cause of action for damages for breach of statutory duty arises where a statute

which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of obligation causes injury or damage of a kind against which the statute was designed to afford protection: see Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 404, 405.

Their Honours stated that the question was one of the ‘proper construction’ of the statute. Explicit guidance from parliament 6.6 In some cases determining whether parliament intends legislation to create a civil action will be easy, because it has spelled out clearly whether or not it intends to allow a private action to be commenced as well as a criminal prosecution. So, for example, the Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)) s 236 specifically provides that there is a civil action available in relation to loss suffered by somebody as a result of someone else’s breach of the consumer protection provisions of that Law. Alternatively, an Act might state there is no action. For our purposes, one such provision is the Work Health and Safety Act 2011 (NSW) (WHSA) s 267(a), which states: 267 Civil liability not affected by this Act Except as provided in Part 6 and Part 7 and Division 7 of this Part, nothing in this Act is to be construed as: (a) conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act, or (b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings …7

[page 331] As we will see in Chapter 7 when we examine this Act in more detail, the drafters of the Model Law have taken the view that

while an employer may be prosecuted for breach of the general provisions of the WHSA, they did not want to fully extend the range of civil actions available.8 (The exceptions noted in the introductory words of s 267 refer to civil remedies available under the WHSA for certain types of discriminatory conduct aimed at penalising workers for safety complaints (see Pt 6 s 112); and to socalled ‘civil penalty’ proceedings relating to workplace entry by permit holders, dealt with in Pt 7 and Pt 13 Div 7). This can be compared with the situation under former Australian Capital Territory legislation, the Occupational Health and Safety Act 1989 (ACT). In Edwards v Woolworths Ltd [2009] ACTSC 4 (Edwards), Master Harper held (at [14]) that civil actions under that Act, and also under the Regulations made under the Act, were excluded by s 223 of the Act, which provides that ‘Nothing in this Act shall be taken … to give a right of action’. The fact that this was applicable to the Regulations was said to flow from the Legislation Act 2001 (ACT), s 104 of which provides that ‘a reference to an Act includes a reference to statutory instruments made under the Act’.9 [page 332] 6.7 In a more recent development, the former Workplace Health and Safety Act 1995 (Qld) s 37A10 explicitly removed civil BSD actions in relation to at least some of the provisions of the Queensland workplace safety legislation: 37A No civil cause of action based on contravention of Act11 (repealed) No provision of this Act creates a civil cause of action based on a contravention of the provision.

The background to this provision was the decision noted below (see 6.9), Bourk v Power Serve Pty Ltd [2008] QCA 225 (Bourk), where the Queensland Court of Appeal held that once a risk to safety had

been proven, then in the absence of any defence the employer was liable.12 This provision was repealed when Queensland adopted the Model Law. Under the WHSA, then, s 267(a) expresses an intention that the general provisions of the Act are not to be taken to create civil liability at large. But, as we will see in more detail at 6.12 below, s 267(c) leaves it open to a court to find, on general principles, that a breach of the more specific regulations made under the Act may create civil liability. In doing so it follows the model of former OHSA 2000 s 32. Implying parliament’s intention 6.8 To return to the more general question of interpretation: if parliament has not spelled out the desired intention, interpreting the statute to determine whether parliament intended or did not intend to allow for a separate civil action is not always an easy process. Indeed, the minority judges in Byrne and Frew (see 6.5), McHugh and Gummow JJ, commented (at 456–7): In Australia, the proposition that the courts give effect to ‘the intention of the legislature’ tends to disguise the compromises between contradictory positions which may be involved in obtaining the passage of legislation, particularly through a bicameral and federal legislature. To plumb the intent of the particular body which enacted the law in question may be an illusory quest … The task of the court … is to give effect to the will of the legislature but as it has been expressed in the law and by ascertaining the meaning of the terms of the law.

[page 333] In Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, Kirby J commented (at 409): Determining whether a statutory provision gives rise to a civil action for the breach is usually a matter of controversy because Parliament does not ordinarily state its intention in this regard … It is left to courts, examining the language and apparent purpose of the legislation, to attribute to the lawmakers whether or not it was their purpose to provide for civil liability for breach of the provision in question. Appeals

to legislatures to make their intention in this respect more plain have fallen on deaf ears.13

Hollingworth J in British American Tobacco Exports BV v Trojan Trading Company Pty Ltd [2010] VSC 572 cited a list of various helpful factors from Halsbury’s Laws of Australia to establish this element in his decision: at [36]. Parliament usually intends WHS laws to be actionable 6.9 Without detailing all the areas that the courts may consider in general, there is one area in which it is very clear that there has been a reading of the legislation that supports an action for BSD. This is the area of workplace health and safety legislation. In general, the courts have held that legislation providing for safety in the workplace should be read as giving a private right of action as well as imposing penalties under the criminal law.14 This was clearly established in Australia in the judgment of Dixon J in O’Connor v SP Bray Ltd (1937) 56 CLR 464 at 478, and reaffirmed by the majority in Byrne and Frew (see 6.5) in the following words (at 429): One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific duty of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right.

This approach was followed in Schiliro v Peppercorn Child Care Centres Pty Ltd [2000] QCA 18 (Schiliro) in relation to the Workplace Health and Safety Act 1995 (Qld) s 28, where it was held that the section was intended to create a duty enforceable by civil action. The court said (at [26]): There is nothing in this material, taken in the historical context already set out, that suggests that the Act, insofar as it is directed at employee safety, is inconsistent with

[page 334]

the creation of a civil cause of action; the Act is to emphasise prevention rather than cure but the scope and intent of the existing legislation is to remain unchanged. The language of obligation in s 28 and of ‘discharge of obligations’ in s 24, s 26 and s 27 fits comfortably with the concept of civil liability. It would have been a simple matter for the legislature to exclude civil causes of action as has been done in many other jurisdictions. These considerations combine to support the inference that s 28, like s 9 of the 1989 Act, creates a civil cause of action. [footnote omitted]15

In Tabulo v Bowen Shire Council [2004] QSC 38 (especially at [51]) it was again assumed that the general duties provisions of the Queensland legislation created a civil action. Bourk v Power Serve Pty Ltd [2008] QSC 29 also upheld a civil action based on a breach of the general duty under Queensland law. On appeal the court accepted the actionability of s 28: see Bourk v Power Serve Pty Ltd [2008] QCA 225 at [19]. In refusing special leave to further appeal in that case, the High Court commented in Power Serve Pty Ltd v Bourk [2009] HCASL 58 at [3] that: The interpretation given to s 28(1) by the Court of Appeal is consistent with a number of its earlier decisions and its correctness is not open to sufficient doubt to warrant a grant of special leave.

Later decisions holding that s 28 of the Queensland legislation provided a civil action16 are Parry v Woolworths Ltd [2009] QCA 26; Griffiths v Queensland [2010] QSC 290;17 Chapman v University of Southern Queensland Student Guild [2010] QDC 318 at [50]–[51] and Savage v Dangan Pty Ltd [2012] QSC 375.18 6.10 In Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v South Australia [2006] WASC 270 at [568], Heenan J accepted that the Occupational Health Safety and Welfare Regulations 1988 (WA) created duties which could be the subject of civil action. In the appeal from this decision, State of South Australia v Ellis [2008] WASCA 200, no doubt was cast on this conclusion, but the Court of Appeal found it unnecessary to decide the matter, as they held that the Regulations had in any event been incorporated into the contract of employment: at [467].19 The BSD action continues to be used in Tasmania: see Allen v Western Metals Resources Ltd [2001] TASSC 19 per Blow J (at [15]):

Whilst the regulations provided that breaches thereof were punishable by fine, it is clear that, as is usual for industrial safety regulations, they were intended to confer private rights of action in tort: O’Connor v SP Bray Ltd (1937) 56 CLR 464;

[page 335] Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313.

Victorian courts also continue to refer to the BSD action in workplace safety cases. See, for example: Li v Toyota Motor Corporation Australia Ltd [2010] VSC 458 at [57]; Crowe v Trevor Roller Shutter Services Pty Ltd (No 2) [2011] VSC 28 at [100]–[101]; Franklin v Kone Elevators Pty Ltd [2011] VSC 108 at [120], [138]– [140]; Surmon v Herald and Weekly Times (Ruling No 2) [2011] VSC 607; Pasqualotto v Pasqualotto [2013] VSCA 21;20 Duma v Mader International Pty Ltd [2013] VSCA 23; and Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd (No 7) [2014] VSC 542. In Govic v Boral Australian Gypsum Ltd [2015] VSCA 130, it was found that a civil BSD action is available in relation to the Victorian 2007 OHS regulations, because there was an underlying presumption that the regulations would allow such an action unless there was a particular legislative decision to exclude it.21 Because WHSA s 267 is relevantly identical to s 34 of the Victorian 2004 Act, this provides clear support for the view that the WHSA regulations are likely to found civil actions. In Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6, all the members of the court generally assumed that there would be a right to take a civil action based on a specific WHS statute.22 More recent decisions of the High Court, while not providing an occasion for a detailed analysis of the BSD action, clearly accept it as a standard part of the tort framework.23 6.11 However, it cannot be assumed that every statute that concerns workplace safety will be read as implying a civil right of

action. Despite the decision of the Queensland Court of Appeal in Schiliro (see 6.9) holding that the general employer–employee duty provision of the Workplace Health and Safety Act 1995 (Qld) implied a civil action, other Queensland decisions treated other sections of that Act differently. In O’Brien v T F Woollam & Son Pty Ltd [2001] QSC 217, for example, it was held that ss 30 and 31 of the Act (which, generally speaking, imposed liability on head contractors for injuries to those present in the workplace) were not based on any ‘historically accepted’ form of civil action, and did not create civil liability. [page 336] Other Queensland decisions in which similar findings were made include Percy v Central Control Financial Services Pty Ltd [2001] QCA 226 (concerning the liability of contractors under s 23 of the former Workplace Health and Safety Act 1989 (Qld)) and Heil v Suncoast Fitness [2000] 2 Qd R 23. In Wilkinson v BP Australia Pty Ltd [2008] QSC 171, the difficulties of interpreting the legislation were illustrated, McMeekin J ruling that a duty owed by an employer to non-employees under s 28(3) was not actionable, but that the duty of an occupier under s 30 might have been actionable: see [21]–[26] (but the issue was not necessary to resolve because the worker’s action in negligence was successful). However, it seems clear for the reasons noted above that unless there is a specific decision of the High Court to the contrary, civil actions for breach of statutory duty will continue to be available under workplace safety legislation, as they have been for many years. Since an employer is clearly already under a common law duty to take reasonable care for the safety of its employees, then a provision designed to protect the safety of workers can easily be seen to give a right of civil action. Civil actions available for breach of regulations

6.12 What then is the effect of WHSA s 267, noted above at 6.6? When examined closely it is clear, as we have seen already, that it does not take away all civil actions based on safety legislation. In further discussion of the topic (in Chapter 7) we will see that the WHSA imposes a number of very general obligations on ‘persons conducting a business or undertaking’ and others. Obviously it was considered that to allow civil actions on these general obligations might impose too great a burden on employers. However, as well as these general duties, there are many specific duties imposed by the regulations made under the Act (in New South Wales, the Work Health and Safety Regulation 2011 (NSW) (WHSR)). There seems no doubt that a breach of these provisions would give rise to an action for breach of statutory duty, and this is confirmed by WHSA s 267(c): 267 … [N]othing in this Act is to be construed as: … (c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be brought, in relation to breaches of duties or obligations imposed by the regulations.24

6.13 Under former OHSA 2000, there was a provision that allowed the government to take action to prevent civil claims under certain regulations. Former OHSA 2000 s 39A provided: [page 337]

39A Civil liability under regulations (repealed) 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.

For some time no exclusionary regulations of this sort had been made.25 However, cl 175E(2), contained in Pt 6B of the Occupational Health and Safety Regulation 2001 (NSW) (OHSR 2001),26 provided an example of the use of this regulation-making power. This subclause exempted the operators of ‘major hazard facilities’ from civil liability in relation to a breach of their duty under cl 175E(1) to ensure that all persons (including members of the public) were not exposed to risks to their health and safety arising from a major accident occurring at the facility.27 While it seems clear that even in the absence of a specific analogue to former s 39A, there would be power to provide for a precise exclusion of one or more regulations from civil liability, no such provisions seem at first glance to have been included in the Model WHSR.28 6.14 Under the WHSA, then, the extent ‘if any’ to which a breach of the regulations is actionable, where no regulation has been used to specifically exclude particular [page 338] provisions from actionability, has been left to the courts to decide, applying the established principles for breach of statutory duty actions. In New South Wales, for some years the courts rarely needed to rule directly on the actionability of regulations made under the OHSA 1983 or the OHSA 2000. This seems to have been because older, more targeted, legislation was still in force,29 and the wealth of precedent allowing that legislation to be used as the basis for civil liability could be relied on. When considering civil actions, New South Wales courts were required to interpret, among other

provisions, the Factories, Shops and Industries Act 1962 (NSW) s 27 (dealing with fencing of dangerous machinery),30 s 40 of that Act relating to safe means of access to work,31 and the provisions of the Construction Safety Regulations 1950 (NSW) relating to falls on construction sites.32 However, those provisions were repealed on 1 September 200133 and, consequently, the question of whether the newer forms of regulations are actionable then became more pressing for plaintiffs. One case where a plaintiff did rely on the newer legislation in a breach of statutory duty action was Waters v Trojan Tyres (NSW) Pty Ltd [2003] NSWCA 246. There the employee pleaded a breach of the Occupational Health and Safety (Floors, Passageway and Stairs) Regulation 1990 (NSW) in conjunction with a negligence claim. The trial judge ruled that the Regulation was not applicable. (As the area where the employee had slipped was in the open rather than in a building, his Honour concluded that it was not a ‘floor’ and hence not covered by the Regulation.) But on appeal the alternative claim in common law negligence was successful, and the Court of Appeal specifically declined to rule on the interpretation of the Regulation. The question of the actionability of the Regulation does not, on the material available, seem to have been raised at either the trial or on appeal. 6.15 More recently, however, a number of civil actions were decided assuming that a breach of the OHSR 2001 was civilly actionable: see Macey v Macquarie Generation [page 339] & HIS Engineering Pty Ltd [2007] NSWDC 242; Irwin v Salvation Army (NSW) Property Trust [2007] NSWDC 266 and Estate of the Late M T Mutton by its Executors & R W Mutton trading as Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340 (Mutton). In Websdale v Collins [2009] NSWDC 30, it was also accepted that a

breach of the OHSR would be actionable (see [31]–[37]), though in the circumstances the Regulation had not been breached since, even if a risk had been created, it had been appropriately controlled. In Sijuk v Ilvariy Pty Ltd [2010] NSWSC 354,34 while the application of the Regulation to the facts was denied, it was generally accepted that breaches of the Regulation were actionable. In Mutton, however, while Spigelman CJ accepted the availability of a civil action, and Hodgson JA did not question it, Ipp JA remarked (at [210]): The respondent conceded at trial and on appeal that a breach of cl 45(a) gave rise to a civil cause of action. It is inappropriate to examine whether that concession was properly made and I proceed on the assumption that it was correct. I would merely note that it is arguable that where a criminal penalty is imposed and there is no express reference to a private civil cause of action, an inference may be drawn that the statute did not intend to confer such a private cause of action: see Halsbury’s Laws of Australia (Sydney: LexisNexis Butterworths, 2007) at [415-1365] and the cases cited therein. That would particularly be the case where an absolute obligation is imposed with which it might not be reasonably practicable to comply.

With respect, given the extensive history of the courts using criminal industrial statutes as the basis of civil actions, these doubts about the general actionability of the Regulation seem unwarranted. In the more recent decision of Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149; [2009] Aust Torts Reports ¶82016, there were some suggestions that the civil actionability of the OHS Regulation in relation to members of the public (as opposed to workers) may be in some doubt. I have previously offered a number of reasons35 that indicate why the comments of McColl JA to this effect are arguably wrong (and in any case are conceded by her Honour to only be obiter, since the action in the case succeeded on grounds of negligence). One reason for excluding the liability for harm to members of the public was seen to lie in the decision in Booksan Pty Ltd v Wehbe [2006] NSWCA 3 that the doctrine of contributory negligence applies to BSD claims. This reason is hard to

understand. 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 unpersuasive. The long history of the BSD action for workplace injury shows that it has often been available where negligence might not be, and [page 340] subject to different rules. There seems no real doubt that the operation of the relevant provisions of the Act and regulations protects members of the public. For these reasons, a passing comment by Master Harper in Fischetti v Classic Constructions (Aust) Pty Ltd and Vero Insurance Ltd36 (Fischetti) in the Australia Capital Territory Supreme Court, on the civil actionability of regulations made under the model laws, is, with respect, in error: A failure to comply with the Regulation is pleaded as a particular of negligence, rather than the independent tort of breach of statutory duty. The latter tort is not available — the Occupational Health and Safety Act 1989 provided to that effect: see now Work Health and Safety Act 2011, s 267.37

The comment, as well as being obiter (in fact it seems from the report that BSD was not even pleaded) is clearly not correct. The Australian Capital Territory situation under the 1989 Act was discussed previously.38 As explained earlier, there are reasons to doubt whether the decision in Edwards v Woolworths Ltd39 was correct. But regardless of whether or not this decision was a correct reading of the 1989 Australian Capital Territory law, it clearly cannot apply automatically to a differently worded new statute.

The WHS Act, as noted previously, explicitly allows a possible action under the regulations under s 267(c).40 6.16 It seems clear, then, that while there will be no civil action for breaches of the more general provisions of the WHSA, many breaches of the regulations in the WHSR should still be actionable in civil proceedings. Nevertheless, because many of the regulations are worded much more generally and ‘non-prescriptively’ than the previous legislation, there may still be some doubts as to which of the regulations will allow civil actions, at least until the courts resolve current uncertainties about the question. For example, one of the reasons offered by the court in O’Brien v T F Woollam & Son Pty Ltd [2001] QSC 217 for rejecting the possibility of a civil action under a provision of the relevant Queensland legislation was, as stated by Philippides J (at [10]), that: … the obligation in s 30(1)(a) of the Act is expressed in general terms as one of ensuring that the risk of disease or injury is minimised, rather than as an obligation to take specific precautions. That is, the language is expressed in terms of minimising risk rather than preventing injury. In those circumstances, s 30(1)(a) of the Act does not give rise to a private right of action.

It is possible that a similar argument might be made in relation to some of the provisions of the WHSR, which we will consider in Chapter 10. [page 341] 6.17 On the other hand, at least in one Queensland case, O’Reilly v Henson t/as Cavalier Foods [2002] QDC 70, the court was prepared to consider a civil action for breach of a ‘risk management’ provision. As noted above (see 6.9), the former Workplace Health and Safety Act 1995 (Qld) s 28 was held a number of times to be a source of civil liability. The section provided:

28 Obligations of employers (Qld) (repealed) (1) An employer has an obligation to ensure the workplace health and safety of each of the employer’s workers in the conduct of the employer’s business or undertaking. …

The 1995 Queensland Act combined aspects of the standard ‘general duties’ legislation, with aspects of the risk management model. It did so particularly in s 29B(a), where it referred to the fact that an obligation under s 28 includes ‘(a) identifying hazards, assessing risks that may result because of the hazards, deciding on control measures to prevent, or minimise the level of, the risks, implementing control measures and monitoring and reviewing the effectiveness of the measures’. Under s 26 of the Act, an employer was obliged to follow any advisory standards relating to the area, unless able to show that what it did provided the same protection: 26 How obligations can be discharged if standard made (repealed) … (3) If an advisory standard or industry code of practice states a way of managing exposure to a risk, a person discharges the person’s workplace health and safety obligation only by — (a) adopting and following a stated way that manages exposure to the risk; or (b) adopting and following another way that gives the same level of protection against the risk.

There was also a general defence provision: 37 Defences for div 2 or 3 (repealed) (1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 or 3 for the person to prove — (a) if a regulation or ministerial notice has been made about the way to prevent or minimise exposure to a risk — that the person followed the way prescribed in the regulation or notice to prevent the contravention; or

[page 342] (b) if an advisory standard or industry code of practice has been made stating a way or ways to manage exposure to a risk — (i) that the person adopted and followed a stated way to prevent the contravention; or (ii) that the person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; or (c) if no regulation, ministerial notice, advisory standard or industry code of practice has been made about exposure to a risk — that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention.

6.18 In O’Reilly (see 6.17) the worker tripped over an uneven section of grass while carrying some boxes to be stacked in a truck. In considering the statutory duty claim based on s 28, Samios DCJ considered the provisions of the ‘Code of Practice for Manual Handling’ issued under the Act. The Code itself was an example of the ‘risk management’ process, requiring the employer to conduct ‘Risk Identification’ and ‘Risk Assessment’, followed by ‘Risk Control’.41 After weighing up the evidence of the various experts, Samios DCJ concluded that the area in question was little used, there had been no evidence of previous problems, and that a proper ‘risk identification’ process could have concluded that there was no need to proceed to any further ‘assessment’ of risks. His Honour essentially concluded that the risk was, in more familiar common law terms, not reasonably foreseeable. In the risk management parlance, the degree of risk was not sufficient to warrant further preventative action. The Code was complied with and hence ss 26(3) and 37(1)(b) of the Act were satisfied.42 The case provides an interesting example of how a court responds to risk assessment issues.43 A more recent example can be found in Griffiths v Queensland [2011] QCA 57, where the Queensland Court of Appeal by majority (Muir and White JJA; Chesterman JA dissenting) held that where an employer had not properly assessed the risk of

lifting a large container (as to which there had been a number of previous employee complaints), then the employer was not able to demonstrate as a defence that it had ‘followed the way prescribed’ under s 37. Hence, it was not able to make out the defence, and was held liable. These, and other recent Queensland decisions noted above, demonstrate a good understanding of the new structure of workplace safety regulations in Australia. It is significant that a number of aspects of the Queensland legislation have been adopted by the Model Law (such as, for example, the use of the phrase ‘person conducting a business or undertaking’). [page 343] 6.19 Finally, on the question as to whether a statutory duty is civilly actionable, the High Court in Stuart v Kirkland-Veenstra [2009] HCA 15 has recently reaffirmed that what is imposed on the defendant must be a duty, and not merely a ‘power’. The case was primarily an action in negligence, but at one stage a possible BSD claim was made, concerning which the court delivered some comments. The claim involved police officers who had observed Mr Veenstra sitting in his car into which was leading a hose from the exhaust pipe. When challenged, Mr Veenstra conceded that he had been about to commit suicide but said he had now changed his mind. The police officers had the power to detain him under the Mental Health Act 1986 (Vic) s 10, which said: 10 Apprehension of mentally ill persons in certain circumstances (1) A member of the police force may apprehend a person who appears to be mentally ill if the member of the police force has reasonable grounds for believing that — (a) the person has recently attempted suicide or attempted to cause serious bodily harm to herself or himself or to some other person; or (b) the person is likely by act or neglect to attempt suicide or to cause serious bodily harm to herself or himself or to some other person. …

The officers, however, allowed Mr Veenstra to go. Later in the day he committed suicide in his driveway at home, and his wife then sued the police force for negligence and breach of statutory duty over their failure to detain him (in relation to the psychological injury she suffered over the events). 6.20 The negligence case failed for reasons that are not relevant to this discussion. However, on the possible BSD claim the majority of the High Court commented that that claim would also have failed had it been pursued, because the legislation created only a ‘power’ not a duty. Gummow, Hayne and Heydon JJ commented (at [110]): Because s 10 of the Mental Health Act confers power but does not impose a duty to exercise the power, the abandonment of the claim for breach of statutory duty derived from that Act was inevitable and right … That is, the existence of such a cause of action is not to be inferred from ‘a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed [or in this case authorised], the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.1 1.

Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405.

All the members of the court agreed that in this case, in any event, the preconditions for the exercise of the power to detain had not been present, as the police, while they had observed a possible suicide attempt, were not of the view that the deceased was ‘mentally ill’ (and the statute clearly did not equate mental illness with a suicide attempt). However, it is interesting to note that Crennan and Kiefel JJ, in their joint [page 344] judgment, suggested (at [145]) that if the facts had revealed that s 10 was satisfied, a BSD claim might have been possible, as their Honours were of the view that a statutory ‘power’ might in some cases be interpreted as a ‘duty’:

In Pyrenees Shire Council v Day1 Brennan CJ said that the existence of a discretion to exercise a power is not necessarily inconsistent with a duty to exercise it.2 The case to which his Honour referred, Julius v Lord Bishop of Oxford,3 whilst concerned with a matter of public law, the issue of a writ of mandamus, also involved the construction of a statutory provision which included the words ‘it shall be lawful’ in connection with the exercise of power. The nature and object of a power, and the persons for whose benefit it is intended to be exercised, were matters which Earl Cairns LC considered might ‘couple the power with a duty’ so as to oblige its exercise.4 1.

(1998) 192 CLR 330.

2. 3.

Pyrenees Shire Council v Day (1998) 192 CLR 330 at 346 [23]. (1880) 5 App Cas 214.

4.

Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222–3 and see also at 225 and 227, 229–30 per Lord Penzance and 235 per Lord Selborne.

In other words, a provision that says that someone ‘may’ do something might in some cases be read as implying that where certain conditions are satisfied, they ‘must’ do it. This represents an interesting possible future development of the law of BSD. It would be unlikely, however, that SafeWork NSW could be sued for failure to inspect a hazardous workplace. Putting aside whether a relevant regulation would provide a direct a duty to inspect, any such duty would be owed to the public as a whole, not just a particular group.44 Section 43 of the CLA would likely prevent such an action, because such a decision not to exercise its powers would have to be so unreasonable that no authority in SafeWork NSW’s position would consider it to be a reasonable exercise of its powers. Following is a much briefer overview of the remaining elements of the action of breach of statutory duty.

For benefit of class including plaintiff 6.21 The next step is that the statute must be for the benefit of a class of people including the plaintiff, but not a class so wide that it can be said to consist of the general public. One result of this is that it is usually said that a breach of the

general traffic regulations can never be the basis for a civil action for breach of statutory duty: Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 840 per Bankes LJ: … the public using the highway is not a class; it is itself the public and not a class of the public.

[page 345] The decision has been followed in Australia: see Abela v Giew (1965) 65 SR (NSW) 485. See also the comments of Hayne J in Brodie v Singleton Shire Council [2001] HCA 29 at [326]: Ordinarily, the more general the statutory duty and the wider the class of persons in the community who it may be expected will derive benefit from its performance, the less likely is it that the statute can be construed as conferring an individual right of action for damages for its non-performance. In particular, a statutory provision giving care, control and management of some piece of infrastructure basic to modern society, like roads, is an unpromising start for a contention that, properly understood, the statute is to be construed as providing for a private right of action.

6.22 The Supreme Court in Morrison Sports Ltd v Scottish Power [2010] UKSC 37 at [39]–[40] (Morrison) recently reaffirmed the rule in the United Kingdom. The Scottish appeal court45 had upheld a decision of a trial judge that a breach of electricity regulations, which had led to fire damage, was civilly actionable. However, this was overturned in the Supreme Court. Lord Rodger, after examining the legislation in detail, concluded that the provision in question (breach of which had led to fire damage to property) was not civilly actionable, as there were specific enforcement provisions found in relation to other breaches, but not the one relied on. In addition, the rule was framed so broadly that it applied to the public at large. Despite its high authority, this rule perhaps above all others in the definition of the tort, has attracted the strongest (and the most justified) criticism. It seems to amount to saying that parliament can give privilege to one group above another for protection, but

can never be found to have provided equal protection to all members of the public. This was the view, at any rate, of Lord Atkin, who differed from Bankes LJ on this issue in the Court of Appeal in Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841: The duty may be of such paramount importance that it is owed to all the public. It would be strange if a less important duty, which is owed to a section of the public, may be enforced by an action, while a more important duty owed to the public at large cannot. The right of action does not depend on whether a statutory commandment or prohibition is pronounced for the benefit of the public or for the benefit of a class. It may be conferred on any one who can bring himself within the benefit of the Act, including one who cannot be otherwise specified than as a person using the highway.

Yet this was one battle that the later hero of Donoghue v Stevenson [1932] AC 562 did not win. Lord Atkin’s comments on this issue were rejected in Morrison as being inconsistent with clear decisions of the House of Lords. (For comment on this rule, and an argument that the rule ought to be abolished as illogical, see the paper by N Foster (2015) noted in the Further Reading list at the end of this chapter.) [page 346] On the other hand, the definition of a ‘class’ is clearly a matter of debate. The House of Lords in London Passenger Transport Board v Upson [1949] AC 155, despite the rule mentioned, held that a breach of traffic regulations was actionable in the circumstances of that case, defining the ‘class’ fairly broadly in terms of road-using pedestrians. More recently in Roe v Sheffield City Council [2004] QB 653 (Roe), the general class ‘road users’ was accepted as a valid class where a failure to properly lay tramlines was in issue. Roe was mentioned in Morrison and not directly doubted (though there seems to be a hint that the class might have been a bit too broad). The Western Australian decision above, Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 found that the provision in

question was not civilly actionable in relation to economic harm, but arguably left open the possibility that an action in relation to personal injury might have been successful.46 A gas refinery explosion caused economic loss to Alcoa because it cut off its commercial supply of gas. Alcoa claimed the relevant regulation, reg 10 of the Petroleum Pipelines Regulations 1970 (WA), implied a duty to prevent economic loss to its customers. It was suggested (at [99]) that the regulation, which does mention the ‘safety, health and welfare of persons engaged in the construction or operation’ of pipelines, may have created a duty to workers, even though it did not create a duty to avoid causing economic loss.47 It is doubtful that an industrial award could itself found a BSD claim because it is not a statute, as stated by the High Court in Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 at [430]. It is also likely that ministerial directives48 or mere guidelines49 cannot be the basis for the tort.

Stop and Think 6.1 Why do you think the courts have taken the view that a statute that is designed to protect the whole public should not be civilly actionable, but one that only protects a limited class of the public may be?

6.23 In cases involving a breach of industrial safety legislation, there is usually no problem in establishing that an employee on the site is within the class of people protected. The cases extend this to anyone who is ordinarily and regularly employed to work on the site: cf Quilty v Bellambi Coal Co Pty Ltd (1966) 67 SR (NSW) 193. Outside this clearly protected group there may be some doubts. It has been held in the past

[page 347] that a self-employed person on the site may not be in the relevant class,50 nor may a firefighter who comes into a factory to prevent a fire.51 In all cases it will, on the current approach, be a question of interpreting the statute to see which class of persons the legislation intended to protect. 6.24 Currently in Australia, however, it seems fairly clear that the law would cover such non-employees on the site. Under the former OHSR 2001 (NSW), for example, cl 9(1)(b) required an employer to identify foreseeable hazards which had the potential to harm not only employees but ‘any other person legally at the employer’s place of work’ (although this would have excluded trespassers from being able to take a civil claim based on the Regulation). Under the WHSR a more complex set of provisions is in place relating to risk management, but the same result seems likely in many situations. For instance, consider the example of someone who has the management and control of plant in a factory. Under cl 203, they have a duty to ‘manage risk’ in relation to plant and equipment. Clearly, the scope of their duty is defined by WHSA s 21 (referred to in a note to cl 203). Should the person fail to properly guard equipment, under cl 208, and a member of the public is injured, then they have breached cl 203 by not managing the risk appropriately. (Clause 203 refers back to WHSR Pt 3.1 for an explanation of how risks are to be managed. Pursuant to cl 35, for example, they may have failed to take reasonably practicable steps to eliminate risks to health and safety.) When the question is asked, ‘Was the scope of their duty intended to be for the protection of members of the public?’, WHSA s 21 provides a clear answer: s 21(2) requires that plant is to be (so far as is reasonably practicable) ‘without risks to the health and safety of any person’ (emphasis added).52 In Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264, the

question arose as to whether the former Factories Shops and Industries Act 1962 (NSW) (in referring to someone ‘employed in’ a factory) was designed to protect someone repairing the roof of the factory. According to Santow AJA (at [163]), the answer was ‘No’: Thus a workman not employed in the factory who repairs the roof, though it protects the manufacturing processes from rain and the elements, is not within the intended ambit of statutory protection under s 40(2) of the Act. Where s 40 refers in subs(2) to ‘where in any factory a person is to work’ the person there referred to must either be engaged in the manufacturing processes or be there for its purposes, in a central and direct sense, such as someone repairing factory machinery.

[page 348] However, his Honour found that in the circumstances there had in fact been a breach of the Construction Safety Regulations 1950 (NSW) cl 74, and awarded recovery on this basis, as did Priestley JA. Lenz v Trustees of the Catholic Church [2005] NSWCA 44653 (discussed further below at 6.31) held that the Construction Safety Regulations cll 73 and 74 applied for the protection of volunteers who are involved in construction work as well as paid workers.

Harm was within danger covered by statute 6.25 Since the action is based on specific legislation, the courts have often focused on the question of whether the legislation was designed to guard against the particular harm encountered. Again, one could argue that it would be reasonable to conclude that a worker injured by an illegal activity should ordinarily have an action, regardless of whether their injury happened to be the precise one foreseen by parliament. But the line of authority is fairly clear, extending back to Gorris v Scott (1874) LR 9 Exch 125, a case concerning ‘washed-over sheep’.

Health regulations governing the transport of animals required a ship owner carrying live sheep to keep them in secure pens during transport. The ship owner breached the regulations, and while the ship was in transit a strong wave washed the plaintiff’s sheep overboard. He sued for breach of statutory duty, claiming that if the pens required by the regulations had been in place the sheep would not have been lost. The court held that he could not recover. While causation was established, the damage that the plaintiff suffered was not the damage that the legislation was designed to prevent, which was the spread of contagious diseases. 6.26 A controversial but well-established application of this principle can be seen in those cases where a person has suffered injury because a machine was not securely fenced, but where the injury has occurred, not because a part of their body came in contact with the moving parts of the machine, but because something flew out of it. In Mummery v Irvings Pty Ltd (1956) 96 CLR 99, a customer in a timber merchant’s shop was struck in the eye by a piece of wood which flew off a circular saw. The High Court dismissed his action on a number of grounds, one of which, however, was that the duty to fence dangerous machinery was designed to protect injury from contact with the machinery, not injury from things flying out of the machinery. A number of English cases have decided this issue in the same way.54 6.27 In a more recent High Court case, although Mummery was not overruled, the court has at least shown a willingness to restrict its application. In Dairy Farmers Co-operative Ltd v Azar (1990) 170 CLR 293, the plaintiff was injured when he put his hand into a milk crate containing broken glass, which was being filled with milk bottles by a machine. His hand was injured by contact between broken glass in the crate and the descending milk bottles, rather than by contact with the moving parts of

[page 349] the machine directly. Nevertheless, the High Court was prepared to find that the injury he suffered was the sort of injury to which the provision was directed.55 In Shire of Brookton v Water Corp (2003) WASCA 240, a requirement to cover ‘putrescible waste’ at a local tip was held to have been directed at preventing odours and disease. When the decaying material started a fire which then spread to the defendant’s land, it was held that protection against the danger of fire was not a purpose of the statute, and hence a BSD action was not available. In Polestar Jowetts Ltd v Komori UK Ltd; Vibixa Ltd v Komori UK Ltd [2006] EWCA Civ 536, the court held that health and safety regulations under the Health and Safety at Work Act 1974 (UK) (HSW Act) were designed to protect bodily safety, and an action could not be taken to recover merely economic or financial loss caused by their breach. In that case a fire had broken out due to the failure of some machines. This was said to amount to a breach of a particular regulation, the Supply of Machinery (Safety) Regulations 1992 (UK). But the court held that (1) these were not regulations made under the HSW Act, and hence not ‘automatically’ civilly actionable;56 (2) even if they were ‘deemed’ to be made under the HSW Act, they could not be relied on to recover financial loss, as regulations made under that Act should only deal with personal safety, not property damage.

Obligation imposed on defendant 6.28 While it seems fairly obvious that liability should be imposed on the person who has been given a duty by the statute, the question then arises whether in this area of tort law an employer can be held vicariously liable for the commission of the tort by an employee. In Australia the question seems to have been

answered in the negative at common law; in Darling Island Stevedoring and Lighterage Co v Long (1957) 97 CLR 36 the High Court held that where the duty has been cast on an employee the employer was not vicariously liable. In New South Wales, however, this position has been reversed by the Law Reform (Vicarious Liability) Act 1983 (NSW) s 7, which now provides that an employer is vicariously liable for breach of a statutory duty imposed on an employee where the employee is acting in the course of the employment, or where the breach is incidental to the carrying on of the employer’s business. In the United Kingdom there was some doubt for a number of years, but the decision of the House of Lords in Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 strongly suggested that United Kingdom law was different from Australian law on this point, and that in the United Kingdom an employer would be vicariously liable under common law principles. Any doubt there has now been removed by the decision [page 350] of the House of Lords in Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34,57 where it was clearly held that an employer is normally vicariously liable for a breach of statutory duty committed by an employee, unless the statute expressly or impliedly excludes such liability. 6.29 Of course, if the duty has been cast directly on the employer, then it cannot escape liability by saying that it delegated the duty to someone else. In this way the duty is ‘nondelegable’. So where a duty is cast on a particular person (for example, an ‘occupier’), the duty holder will be responsible to see that the statutory requirements are met, and will be liable for a failure to meet them, even if the failure is due to the fault of an independent contractor.

For example, in Braham v J Lyons & Co Ltd [1962] 3 All ER 281, where an obligation was placed on the occupier of a factory that the floor ‘so far as is reasonably practicable’ be kept free from slippery substances, Lord Denning MR commented (at 283E–F): It is no answer for the employer to say: ‘I was not responsible for the mess. I knew nothing of it. It was an independent contractor who did it and he ought to have cleaned it up.’ According to the Scottish case of McWilliams v Sir William Arrol & Co Ltd [1961] SC 134, the occupier is responsible for the failure of the independent contractor to take reasonable steps, just as he is for the failure of his own servants. If it is reasonably practicable for steps to be taken by anyone to keep the floor free from slippery substances, they must be taken.

6.30 Issues of vicarious liability aside, the question as to who is bound by the statutory provision is, like other questions in this area, a matter of interpretation of the particular statute. There has been a long history of debate in the courts over phrases such as ‘persons actually carrying out’ certain work; see, for example, Hetherington v Mirvac Pty Ltd [1999] NSWSC 443 where obligations under the Construction Safety Act 1912 (NSW) were held to be imposed on ‘persons actually carrying out building work’, and not head contractors.58 Other cases where similar issues arose included Rauk v Transtate Pty Ltd [2000] NSWSC 1020 at [120]–[126] and Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264 (where Santow AJA held that Construction Safety Regulations 1950 (NSW) (CSR 1950) reg 74, which applied to ‘the person in charge of the construction work’, applied to a head contractor). In Zahner v Andreas Pty Ltd & Boral Building Services Pty Ltd [2001] NSWCA 352, Mr Zahner was engaged by Andreas to dismantle some scaffolding, when he fell and was injured. The court held that under CSR 1950 reg 73 Mr Zahner himself was ‘carrying out’ the work and hence Andreas was not liable for breach of reg 73; however, a separate provision imposed an obligation on someone who ‘maintained’ scaffolding, and this applied to Andreas (which was hence liable). In Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65, a carpenter doing work in a building being constructed by Maggiotto fell down a hole which should have been protected by scaffolding.

The court held that in light of the need for coordination of work by many [page 351] different contractors, Maggiotto was ‘carrying out the work’ and hence was liable under CSR 1950 reg 73. In Kolodziejcyk v Grandview Pty Ltd [2002] NSWCA 267,59 the plaintiff contractor was installing cladding on the outside of a steeply sloping house and fell from a ladder. The court acknowledged that Maggiotto was binding, but by 2:1 distinguished that case from this: here there was no need for coordination as there was only one job, and responsibility for decision-making had been handed over to the experienced contractor himself, so Grandview were not in the relevant sense ‘carrying out’ the work. There was also discussion of what it means to be ‘carrying out work’ in F & D Nomoyle Pty Ltd v Transfield Pty Ltd t/as Transfield Bouygues Joint Venture [2005] NSWCA 193 at [19]–[26] and Takacs v The Uniting Church [2007] NSWSC 175.60 6.31 There was an extensive overview of decisions on CSR 1950 regs 73, 74 in Lenz v Trustees of the Catholic Church [2005] NSWCA 446. Renovations were being carried out on a Roman Catholic church building; Mr Lenz was a retired builder who had volunteered to help with some roofing work, and was injured when he fell off the roof. The court held that the Regulations clearly covered ‘non-commercial’ building operations as well as other types of building operations. The ‘person carrying out’ the construction work was not the plaintiff, but the volunteer supervisor overseeing the renovations on behalf of the church, a Mr Ireland (acting as an agent for the church). In addition, a Mr Kenny, who was actively supervising the roof work, was actually ‘carrying out’ the work. While the church (through Mr Ireland) was ‘the person in

charge’ of the work under reg 74, Mr Kenny due to his limited role in supervising only the roof work was not caught by reg 74. Overall, however, the church and Mr Kenny were held liable for the plaintiff’s injuries.

Breach by defendant 6.32 The question of whether or not a statute has been breached lies at the heart of the BSD workplace action. It also provides one of the primary advantages of the action for plaintiffs, in comparison to the law of negligence — if a statute imposes ‘absolute’ liability, then the demonstration that the statute has been breached (so long as the other criteria are satisfied) frees the plaintiff from the need to prove exactly how the defendant was careless. So, for example, a provision which required that a hoist or a lift ‘shall be of good mechanical construction, sound material and adequate strength, and be properly maintained’ was breached when the lift rope broke and the lift fell, without proof of anything more: see Galashiels Gas Co v O’Donnell [1949] AC 275. Similarly, the obligation to ‘fence dangerous machinery’ has often been held to be an absolute one, [page 352] not excused by the costs or consequences of the fencing: see John Summers & Sons Ltd v Frost [1955] AC 740.61 More recently, the English Court of Appeal held, in line with these decisions, that the obligation imposed under the Provision and Use of Work Equipment Regulations 1992 (UK) (PUWER) reg 6 was an absolute obligation that was breached whenever equipment was faulty.62 In the Scottish decision of Hislop v Lynx Express Parcels 2003 SLT 785, an employee was injured when the

radiator cap of the lorry he was driving blew off while he was inspecting it. The Second Division held that there was no need to prove the way in which the radiator had failed; it was sufficient to show that the cap blew off, since this clearly meant that the employer had not ensured that the equipment was in ‘an efficient state, in efficient working order and in good repair’, contrary to PUWER reg 6. 6.33 Outside these well-established areas there are sometimes doubts. In Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1, the legislation required that the employer ‘make provision to ensure and maintain lighting’. During an unexplained blackout on a building under construction, the plaintiff was injured. The majority of the Court of Appeal held that the provision imposed an absolute duty, which was breached whenever lighting was not provided. The President of the Court, Kirby J, dissented, arguing that the words simply required reasonable care in the circumstances. The decision illustrates the tendency to find that duties of this sort are absolute, except where there are specific words referring to ‘practicability’ or ‘reasonableness’.63 6.34 In McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297, for example, it was held that the provisions of the Dangerous Goods Regulation 1978 (NSW) requiring ‘all practicable’ precautions meant that where the danger concerned was not foreseeable, there was no liability. Even if words such as ‘practicable’ or ‘reasonable’ are present, it has been suggested that the proof of a breach of statutory duty is made easier than that of negligence by the rule laid down by the New South Wales Court of Appeal in Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (No 2) (1987) 8 NSWLR 707. That case decided that in an action for BSD where the statute requires ‘reasonable care’, the onus will still lie on the employer to prove that reasonable care was taken. In other words, unlike the situation in a common law action, the plaintiff simply has to allege harm and it is then up to the

[page 353] employer–defendant to show that no more precautions could have been reasonably taken than were in fact taken. However, it may be doubted whether that decision is good law since the more recent comments of the High Court in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6. That was an action for breach of the statutory duty in the Occupational Health, Safety and Welfare Act 1986 (SA) s 24, which imposed obligations on those who manufactured and designed workplace equipment. In particular, the provision relied upon was s 24(2a)(a) which states: … where any structure is to be erected in the course of any work — (a) the person who designs the structure must ensure so far as is reasonably practicable that the structure is designed so that the persons who are required to erect it are, in doing so, safe from injury and risks to health.

Mr Slivak had been injured while erecting a structure that was designed by Lurgi. His injury occurred because, while inserting a metal plate in position in a tower, the plate slipped off the lugs that were meant to support it. The evidence showed that this was caused by the fact that the lugs had not been machined to the correct size; if they had been the size called for by the design, the plate would not have slipped. Effectively the claim against the designer failed because the majority of the High Court took the view that by allocating different duties to different workplace participants (designers, manufacturers, installers, erecters, etc) parliament intended that each of those participants should be entitled to simply concentrate on doing their job correctly, and leave others to complete their own tasks.64 Gaudron J dissented because in her Honour’s view one of the responsibilities of the designer was to take account of possible departures from the prescribed tolerances in the design when construction took place. This was so particularly in light of the statutory requirement to ‘ensure’ safety.65 Callinan J commented in detail on the issue of the onus of

proof. He indicated that in his opinion the decision of the High Court in the case of Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 had effectively overruled Kingshott, and that the onus of proof remained with the plaintiff to prove that compliance with the provision in question had been ‘reasonably practicable’. This should be regarded as the authoritative comment at the moment.66 [page 354] 6.35 The United Kingdom case of Marks & Spencer plc v Palmer [2001] EWCA Civ 1528, however, is a good reminder that in cases of breach of statutory duty there must have been a breach. In that case a regulation required that the floor ‘shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used’. The plaintiff tripped over a small board that was raised slightly from the surface of the floor, and argued that, as she had tripped, the floor was unsuitable. The Court of Appeal rejected the argument, noting that in this case the issue was whether the floor was ‘suitable’, and this was a word that to some extent imported notions of ‘foreseeability’. The fact that the board was only a slight irregularity that would be easily negotiated meant that the floor could still be described as ‘suitable’ for use. For an Australian case where the action failed because the regulation was not breached, see Rawson Homes Pty Ltd v Donnelly [2005] NSWCA 211. The action based on the CSR 1950 reg 73(5) failed because the regulation required ‘passageways’ to be kept free of obstructions, and while the injury to the plaintiff was caused by some heavy boards falling on him, it was held that the area where the boards were stacked was not a ‘passageway’. There are many United Kingdom decisions dealing with these and related issues.67 Further comment on these, and more recent, cases is not possible in this book, but the decisions often provide

useful illustrations of the judicial approach to interpretation of industrial safety legislation.68

Causation of harm to plaintiff 6.36 This requirement points to the need for causation to be established. Even in cases where the obligation is absolute (in the sense that a defence of reasonable care is not available), it will still be necessary to show some causal link between the breach and the damage suffered. The chain of causation might be broken by the gross negligence of the plaintiff (which would, in terms of the general law on causation, amount to a novus actus interveniens).69 In Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580, it was proven that the deceased had gone into an area of the mine to test for gas and while there had apparently exposed the naked flame of a lamp he was carrying. The High Court held that the ‘inexcusably careless’ behaviour of the deceased had caused the resulting explosion, rather than any breach of the regulations by the employer. [page 355] On the other hand, in recent years the courts have tended to reject the notion that simply because the injured plaintiff was themselves in breach of a statutory provision, this will break the chain of causation. In Boyle v Kodak Ltd [1969] 2 All ER 439, the House of Lords, while rejecting the employer’s claim that causation had been broken, held that it might be possible that a defence would be available in a case where the statutory provision in question was imposed on the employee, and the injury had been caused solely by the employee’s breach. In doing so they were endorsing an earlier line of cases represented by Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414. To some extent this

approach was endorsed by the High Court of Australia in Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611. 6.37 However, more recently the majority judgment of the High Court in Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) cast doubt on the continuing authority of Boyle for the purposes of Australian law, and indicated a preference for the dissenting view of Dawson J in Nicol: at [39]. The majority in Andar commented (at [41]–[42]): The liability incurred by employers on breach of statutory obligations of the kind considered in cases such as Ginty is, ordinarily, strict.1 In such circumstances, caution should be exercised before implying limitations on the right of an employee to recover for breach of that obligation. Especially is this the case where Parliament has provided a mechanism for the apportionment of responsibility between employee and employer. It may certainly be accepted that, in the absence of an express provision conferring a cause of action upon employees for breach of their employers’ obligation, courts have recognised the plaintiff’s right by implication and as an exercise in statutory interpretation.2 However, that process does not in turn permit the development of a limitation which cannot legitimately be inferred from the nature, scope and terms of the legislation in question. These implications are, as Kitto J put it in Sovar v Henry Lane Pty Ltd,3 not to be ‘conjured up by judges to give effect to their own ideas of policy’ … [emphasis added] 1. 2.

See, for example, Australian Iron and Steel Ltd v Ryan (1957) 97 CLR 89 at 95–6. Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 404–05.

3.

(1967) 116 CLR 397 at 405.

In some cases, even where an employee has been at fault, a failure by an employee to ensure proper training or precautions might be found to have caused an injury. In John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218, the High Court found that the breach of a regulation requiring the users of explosive equipment to be 18 years old and adequately trained was part of the cause of an injury when a 17-year-old worker put a nail through the head of a fellow worker with a nail gun. 6.38 Despite the fairly clear decision of the High Court in Andar, in Millington v Wilkie [2005] NSWCA 45 the New South Wales

Court of Appeal handed down a decision that appears to contradict it. In Millington, an employee climbed an unsecured ladder (having been ordered not to), fell off and was injured. The employer was in clear breach of the CSR 1950 reg 80(6) which said: ‘Every ladder shall so far as practicable be securely fixed …’, a duty the observance of which was cast on the employer by reg 6(1) (i) [page 356] as it was clearly ‘carrying out’ the building work. But the Court of Appeal (Hodgson and Ipp JJA, Giles JA concurring with Hodgson JA) held that the court in Andar had not completely overruled the results in Ginty (see 6.36) and Ross, and ruled that in the circumstances the regulation should be interpreted so as not to provide for recovery by an employee whose action alone has caused the breach, stating (at [39]): That is, in circumstances where an employer is carrying on building work and, without any fault of the employer, an employee uses a ladder in breach of regulation 80(6), although the employer will be in breach of the statutory duty, this does not necessarily mean that the employee will thereby have a cause of action for damages against the employer. The existence of such a cause of action depends upon an implication which depends in turn on identification of the class of person for whose benefit the statutory duty was imposed. The approach of Mason J in Buckman suggests there may be excluded, from that class, employees whose actions have put the employer in breach, where nothing done or omitted by the employer itself has contributed to the breach.

With respect, it is hard to see how this decision can be reconciled with Andar. On the facts there was a clear incentive for the employee to take ‘short cuts’ with safety; an incentive that the strict duty imposed on the employer was meant to overcome. 6.39 It is worth noting, however, that in the later decision in Lenz v Trustees of the Catholic Church [2005] NSWCA 446, also involving a fall of an employee — although in this case not

directly in disobedience to an instruction — Mason P, though not directly referring to Millington, was careful to point out (at [92]): The plaintiff is only required to prove a material contribution of the breach to the injury. A fall is the type of accident that one would expect to result from the breaches established in the present case … The proposition that the plaintiff should have gone home and got his own safety equipment … ignores the specific and positive duties imposed by the two regulations.

In other words, so long as the failure of the employer to comply with the regulation has had some material impact on the accident occurring, the employer should not be able to avoid liability on a causation argument (for example, simply telling an employee to secure a ladder and then leaving may not be adequate if from the circumstances or the history of the employee, or other factors, there is a real risk the employee might disobey the instruction to get the job done quickly). While sometimes it will be easy to infer that a failure to provide appropriate protective equipment has caused the worker’s harm,70 the onus of proof that a worker would have used the equipment if supplied still remains with the worker.71 6.40 In summary: the civil action for BSD contains a number of uncertain areas. But it is clearly applicable where legislation regulates safety in the workplace, and in [page 357] that context it has provided another option by means of which an injured worker can seek compensation. Because of the way the courts have interpreted many of the statutes relating to workplace safety, an action for BSD may provide an easier avenue for compensation than an action in negligence, as it may not be necessary to prove carelessness or foreseeability. It remains to be seen precisely how the courts will interpret the new work health and safety regulations for the purposes of this civil action.

Contributory negligence and action for breach of statutory duty 6.41 It is appropriate to make some comments here concerning the defence of contributory negligence in relation to this tort action. Understanding how this defence has been applied over the years helps to explain the continuing popularity of the BSD action in some circumstances, although, as noted, recent amendments may signal that what was arguably a ‘loophole’ in the law is being closed. Initially, the defence of contributory negligence was a complete defence. That is, if the plaintiff was in any way responsible for their own injury then the defence applied to totally exempt the defendant from liability. This was obviously an unsatisfactory situation, mitigated only by the fact that the courts often ‘bent over backwards’ to avoid such a result. 6.42 In 1940, the House of Lords held that contributory negligence was applicable as a defence to the action for BSD: see Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152. Three years later, the High Court of Australia ruled that this decision should be followed in this country, in Piro v W Foster & Co Ltd (1943) 68 CLR 313. To avoid the problems that this ruling caused to workers, the New South Wales Parliament passed a special Act, the Statutory Duties (Contributory Negligence) Act 1945 (NSW) which abolished the defence of contributory negligence in relation to all actions for personal injury based on a breach of statutory duty. Section 2 of that Act provided as follows: 2 Defence of contributory negligence excluded in certain cases (repealed) (1) Contributory negligence on the part of a person who has sustained personal injury shall not be a defence to an action for damages for that injury founded on a breach of a statutory duty imposed on the defendant for the benefit of a class of persons of which the person so injured was a member at the time the injury was sustained. …

6.43 In the next significant development, the New South Wales Parliament passed legislation that turned the defence of contributory negligence from a complete defence to a partial defence, for common law actions in general. This was the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (LRMPA 1965). However, in order not to [page 358] disturb the law for breach of statutory duty, that area was excluded from this reform by LRMPA 1965 s 7, which read as follows: 7 Application of Part to breach of statutory duty (repealed) (1) This Part does not apply to any action for damages founded on a breach of statutory duty imposed on a defendant. (2) This Part does not affect the provisions and operation of the Statutory Duties (Contributory Negligence) Act 1945.

The result was that after 1965, a common law negligence claim brought by a worker or a contractor could see a reduction for contributory negligence, but not an action for BSD. Hence, from 1965 there was a powerful incentive to use BSD claims where contributory negligence was likely to be raised. 6.44 The next development came in 1990 with the addition of Workers Compensation Act 1987 (NSW) (WCA 1987) s 151N, which stated: 151N Contributory negligence — generally (1) The common law and enacted law as to contributory negligence apply to awards of damages, except as provided by this section … (3) In an action for the award of damages founded on a breach of a statutory duty imposed on a defendant, contributory negligence on the part of the injured worker is not a complete defence, but the damages recoverable are

to be reduced by such percentage as the court thinks just and equitable having regard to the person’s share in the responsibility for the damages.

WCA 1987 s 151E(1) has the effect that ‘damages’ here refers only to an award made to a ‘worker’ as defined by the Act, against an employer. The result of this complicated web of legislation was that from 1990 an action by an employee against an employer was subject to a reduction for the employee’s contributory negligence. However, since WCA 1987 does not generally apply to ‘contractors’, then an action by a contractor had the benefits given by the 1945 Act, and was not subject to any reduction for contributory negligence. As a result, many of the BSD cases in the 1990s (such as Almeida, Maggiotto and others referred to previously) were cases brought by contractors rather than employees. 6.45 All this changed on 6 December 2002 with the commencement of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (CLPRA 2002) Sch 3. In particular, the Statutory Duties (Contributory Negligence) Act 1945 was repealed, along with LRMPA 1965 s 7. The effect is that an action for breach of statutory duty is now subject to reduction of damages on account of contributory negligence, just as is the case with an action based on negligence. [page 359] This result was confirmed by the judgment of Ipp JA in Booksan Pty Ltd v Wehbe [2006] NSWCA 3 at [155]–[173]. Note, however, that Ipp JA held that this meant that contributory negligence would only be available as a defence to an action for breach of statutory duty where the cause of action accrued (that is, the injury took place) after 6 December 2002; so that even where a statement of claim was filed later than that date, contributory negligence

would not be available as a defence if the injury occurred before that date. This was so despite the fact that some of the other provisions of the CLPRA 2002 applied to pre-existing causes of action: at [172]–[173].72

Breach of statutory duty: limitations 6.46 Finally, without going into great detail, it should be noted that the action for breach of statutory duty is generally caught up in the provisions of various statutes limiting the amount of damages that can be recovered in tort which were discussed in Chapter 5. In particular, there are two separate regimes (as noted at 5.87 ff) that apply depending on whether the worker is an employee or an independent contractor. In New South Wales, for example, if the injured person is an employee, then the limits under the WCA 1987 will apply. This is because WCA 1987 Pt 5 Div 3, which imposes the limits, is said by s 151E to be applicable to ‘tort’ actions generally, not just negligence. 151E Application — modified common law damages (1) This Division applies to an award of damages in respect of: (a) an injury to a worker, or (b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker’s employer. …

If, however, an independent contractor brings the BSD action, then the Civil Liability Act 2002 (NSW) (CLA 2002) will impose some restrictions on recovery. Section 3B(1)(f) specifies that the CLA 2002 does not apply to actions covered by WCA 1987 Pt 5 Div 3, but it will clearly be applicable to actions by contractors. While some of the special rules concerning ‘negligence’ claims in

CLA 2002 Pt 1A will not apply to BSD claims that are based on ‘absolute’ duties,73 it seems fairly clear that CLA 2002 Pt 2, which [page 360] imposes financial limits on damages awards, will apply to all BSD claims relating to workplace injury or death: see CLA 2002 s 11A. ______________________________

Answer to Stop and Think questions 6.1 Again there are no ‘right’ answers to this question. However, it is possible that the courts are concerned about allowing too wide a range of civil recovery, which might be based on ‘trivial’ breaches of regulations. Rather than having to decide which statutory rules are ‘important’ or not, they have devised a general rule limiting recovery for ‘general’ statutes. This then allows them to continue to grant civil actions in relation to the more ‘limited’ statutes.

Further Reading A Brooks, Occupational Health and Safety Law in Australia, 4th ed, CCH, North Ryde, 1993, Ch 3. B Cotter and D Bennett, Munkman on Employer’s Liability, 16th ed, LexisNexis, London, 2013, Ch 5 and generally. J L R Davis, ‘Farewell to the Action for Breach of Statutory Duty?’ in N J Mullany and A Linden (eds), Torts Tomorrow: A Tribute to John Fleming, LBC Information Services, Pyrmont, 1998, pp 69–83. N Foster, ‘Breach of Statutory Duty and Risk Management

in Occupational Health and Safety Law: New Wine in Old Wineskins?’ (2006) 14 Tort Law Review 79–104. N Foster, ‘NSW Court of Appeal: Is Public Liability Created under OH&S Legislation?’ (2009) 6(5) Australian Civil Liability Newsletter 186–9. N Foster, ‘Reforming the Action for Breach of Statutory Duty in the 21st Century: Reconsidering the “Section of the Public” Rule’, paper presented to the Private Law in the 21st Century Conference, sponsored by UQ Law School, Brisbane, 14–15 December 2015, available at . N Foster, ‘The Merits of the Civil Action for Breach of Statutory Duty’ (2011) 33 Sydney Law Review 67–93. N Foster and A Apps, ‘The Neglected Tort — Breach of Statutory Duty and Workplace Injuries under the Model Work Health and Safety Law’ (2015) 28 Australian Journal of Labour Law 57–76. H Glass, M McHugh and H Douglas, The Liability of Employers in Damages for Personal Injury, 2nd ed, Law Book Co, Sydney, 1979, Ch VIII. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 6th ed, LexisNexis Butterworths, Sydney, 2009, Ch 10. C Sappideen and P Vines (eds), Fleming’s The Law of Torts, 10th ed, Lawbook Co, Pyrmont, 2011, Ch 18. K M Stanton, P Skidmore, M Harris and J Wright, Statutory Torts, Sweet & Maxwell, London, 2003.

1.

See London Passenger Transport Board v Upson [1949] AC 155 at 168 per Lord Wright: ‘I think the authorities … show clearly that a claim for damages for breach of statutory duty intended to protect a person in the position of the particular plaintiff is a specific common law right which is not to be confused in essence with a claim for negligence.’

2.

See British American Tobacco Exports BV v Trojan Trading Company Pty Ltd [2010] VSC 572 at [26].

3. 4.

See the article by J L R Davis noted in Further Reading at the end of this chapter. At [216].

5.

C Sappideen and P Vines (eds), Fleming’s The Law of Torts, 10th ed, Lawbook Co, Pyrmont, 2011, p 424. In the interests of full disclosure I should mention that I was the revising author for this latest edition of the new Ch 18, ‘The Tort of Breach of Statutory Duty’, and relevant parts of Ch 24, ‘Employers’, dealing with the statutory tort. Deal v Kodakkathanath [2015] VSCA 191 at [335]. Note that special leave to appeal this decision was granted by the High Court in Deal v Kodakkathanath [2015] HCATrans 333 (11 December 2015), although at the time of writing this appeal had not been heard.

6.

7.

8.

9.

A provision to the same effect was contained in the Occupational Health and Safety Act 1983 (NSW) (OHSA 1983) s 22(1), and later in s 32(1) of the Occupational Health and Safety Act 2000 (NSW) (OHSA 2000). In Booksan Pty Ltd v Wehbe [2006] NSWCA 3, Ipp JA for the court (at [213]) held that para (b) of the former 1983 provision (excluding use of the Act for a defence, as does current s 267(b)) meant that a breach of OHSA 1983 s 16 could not be used by an insurance company to deny liability where an employer had breached the provision (relying on an exclusion clause exempting the insurer from paying where the employer had failed ‘to comply with any relevant statutory obligations’). See also CGU Workers Compensation v Panoy Pty Ltd [2012] NTSC 26 where Mildren J followed Booksan, applying it to a similar provision in the Northern Territory legislation, and held that an insurance company could not rely on a conviction of the employer for an OHS breach to deny its liability to cover a payment of damages to an injured worker in relation to the incident which had led to the conviction. Note that, while this model generally replicates the former New South Wales legislation, OHSA 1983 and OHSA 2000, this limitation of the BSD action was not true of all of the former ‘general duties’ OHS legislation around Australia. In some other states the right to take a ‘breach of statutory duty’ action based on the general duties statute was still generally available. For an example, see the High Court decision in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6, dealing with the Occupational Health, Safety and Welfare Act 1986 (SA) ss 23, 24; and see also the Workplace Health and Safety Act 1995 (Qld), discussed at 6.7. With respect, it may be possible to doubt that this was an intended result. Given the long history of WHS regulations being civilly actionable, one would have thought that it might have taken a stronger and more direct exclusion to achieve this result than that of ‘reading in’ the words covering regulations from the general interpretation provisions. Still, this was the situation in the Australian Capital Territory up until the commencement there of the Model Law. From 1 January 2012, the Australian Capital Territory has adopted the Model Law and so civil actions based on the regulations under that Law are now available, as noted at 6.12, despite the decision in Fischetti v Classic Constructions (Aust) Pty Ltd and Vero Insurance Ltd [2013] ACTSC 210 (which as argued below at 6.15 is wrong on this point).

10.

Introduced by Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 (Qld) (2010 No 24) s 44, effective 1 July 2010.

11.

The Queensland Act being considered here, of course, was replaced from 1 January 2012 by the Model Law, the WHSA. The Explanatory Notes to the Bill explicitly referred to parliament’s intention to ‘overrule’ Bourk (note that the normal method of overruling, an appeal to the High Court, had been cut off by a refusal of the High Court to grant special leave: see Power Serve Pty Ltd v Bourk [2009] HCASL 58). The transitional provisions inserted by the amendment made it clear that it applied to any actions commenced after 8 August 2008, the date the Bourk decision was handed down.

12.

13.

14.

For comments in a similar vein, see Gardiner v Victoria [1999] VSCA 100; [1999] 2 VR 461 at [21] per Phillips JA: ‘a right to sue arises in an individual who is injured by the non-compliance only if there can be discerned in the statute an intention on the part of Parliament that such should be so, and of course that creates the difficulty because usually Parliament has not turned its mind to the problem at all.’ For a detailed analysis of the area, reflecting some of the matter discussed in this chapter but also dealing with some other issues, see the Foster and Apps article noted in the Further Reading list at the end of this chapter.

15. 16.

See also the decision in Schulz v Schmauser [2000] QCA 17, to the same effect. Prior, of course, to the explicit denial of such actions enacted in s 37A of the legislation, noted previously at 6.7.

17. 18.

On this point, upheld on appeal in Griffiths v Queensland [2011] QCA 57. A case where the judge ruled that a claim in negligence could not succeed, but found in favour of the plaintiff due to breach of statutory duty.

19.

Nor did the High Court need to comment on the point in its decision on the matter in Amaca Pty Ltd v Ellis [2010] HCA 5, as the question there was whether causation of harm had been established in the negligence action. A case in which at trial a jury had found that there was no negligence of the employer, but at the same time found in favour of the worker because there was a breach of statutory duty. The majority of the Court of Appeal overturned the jury verdict on the negligence action, but expressed no doubt about the BSD elements of the decision.

20.

21. 22.

23. 24.

At [156]–[157], [159], [164], [169], [174]. See also Deal v Kodakkathanath [2015] VSCA 191 at [10]. See the joint judgment of Gleeson CJ, Gummow and Hayne JJ at [27]; although it should be noted that there are later hints (at [29]) that whether this ‘presumption’ should continue to operate may be the subject of a challenge in the future. But Gaudron J affirmed the rule of construction as correct in unambiguous terms (at [49]): ‘As a general rule, legislation which imposes duties with respect to the safety of others is construed as conferring a right of civil action unless a contrary intention appears.’ Callinan J (at [67]) affirmed the existence of a private right of action with little comment. See, for example, the comments in Stuart v Kirkland-Veenstra above: see 6.3. A provision to similar effect was included as s 32(2) of the former OHSA 2000.

Previously actions under ‘associated’ safety legislation were preserved by OHSA 1983 s 22(1)(c), and s 22(1)(d) of that Act also preserved civil actions based on the Regulations under that Act. 25.

26. 27.

28.

29.

30. 31.

32.

For this reason, the comment in R Johnstone, Occupational Health and Safety Law and Policy, 2nd ed, Lawbook Co, Pyrmont, 2004, at [9.140] n 7 that ‘the OHSA (NSW), s 39A, provides that provisions in the regulations cannot be the basis of an action for breach of statutory duty’, was inaccurate — a rare error in this otherwise excellent book, corrected in the 3rd edition. A similar view expressed in Minogue v Rudd [2012] NSWSC 305 at [74] is also, with respect, clearly wrong. (See the discussion of this case in the Foster and Apps article noted in the Further Reading list at the end of this chapter: at 64–5.) See also the passing comment on s 39A, rejecting the view that it ‘precludes civil liability by a breach of the regulations’, in Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23 at [36] per Basten JA. Commenced 14 July 2008: see the OHS Amendment (Major Hazard Facilities) Regulations 2008 (NSW) cl 2. Presumably the policy behind this exemption was that a ‘major hazard’ incident would have the potential to expose the operator to a very large number of civil claims from a wide range of persons, and it was thought more appropriate to leave the resolution of such claims to the ordinary law of negligence. An example of such an incident which has led to civil litigation in the United Kingdom in recent years is the Buncefield oil refinery explosion, some stages of which were noted in Chapter 3: see, for example, Colour Quest Ltd v Total Downstream UK Plc [2009] EWHC 540 (Comm). For example, the obligation imposed on a licensed operator of a major hazard facility under the Work Health and Safety Regulation 2011 (NSW) (WHSR) cl 566, to ‘implement risk control measures’ to avoid a major incident occurring, would seem to be one that might be sued on as a matter of civil liability if not complied with. That is, legislation aimed at specific risks created by particular workplaces or industries, which was in force before a major report by Lord Robens in 1972 led to a general change in the model for WHS laws. For more details, see 7.11 ff. See, for example, Hanlon v Hanlon Enterprises Pty Ltd [2004] NSWSC 930 at [32]–[37]. See (in addition to many earlier decisions) State Rail Authority of New South Wales v Barnes [2001] NSWCA 133; and see the claim under s 34 of the Act which succeeded in Stanley v Advantage Personnel Pty Ltd [2003] NSWSC 911. See (in addition to many earlier decisions) Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264; Zahner v Andreas Pty Ltd & Boral Building Services Pty Ltd [2001] NSWCA 352; Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65; Kolodziejcyk v Grandview Pty Ltd [2002] NSWCA 267; Bhambra v Roet [2003] NSWCA 393; Zauner Constructions Pty Ltd v Harvey [2004] NSWCA 8; Todorovic v Moussa (2005) 147 IR 263; [2005] NSWCA 100; Millington v Wilkie t/as Max Wilkie Plumbing Services (2005) 62 NSWLR 322; [2005] NSWCA 45; Rawson Homes Pty Ltd v Donnelly [2005] NSWCA 211; F & D Normoyle Pty Ltd v Transfield Pty Ltd (t/as Transfield Bouygues Joint Venture) (2005) 63 NSWLR 502; [2005] NSWCA 193; Lenz v Trustees of the Catholic Church [2005] NSWCA 446; Booksan Pty Ltd v Wehbe [2006] NSWCA 3; Takacs v The Uniting Church [2007] NSWSC 175; Miljus v CSR Ltd [2010] NSWSC

569. 33. 34.

With the commencement of the OHSA 2000 and the OHSR 2001. See especially [189]–[205].

35.

36.

See N Foster, ‘NSW Court of Appeal: Is Public Liability Created under OH&S Legislation?’ (2009) 6(5) Australian Civil Liability Newsletter 186–9, and comments in the Foster and Apps article noted in the Further Reading list at the end of the chapter: at 68–70. [2013] ACTSC 210.

37. 38.

Ibid at [82]. Edwards, noted above at 6.6, was also a decision of Master Harper.

39. 40.

[2009] ACTSC 4 at [15]. It may also be noted that that the incident in Fischetti happened in 2005, well before the WHS Act commenced on 1 Jan 2012, and so the comments may be said to be doubly obiter.

41. 42.

See the summary by an expert witness (noted at [22]–[24]) and the judge: at [78]. At [81].

43.

For more detailed discussion of some of these issues see N Foster, ‘Breach of Statutory Duty and Risk Management in Occupational Health and Safety Law: New Wine in Old Wineskins?’ (2006) 14 Tort Law Review 79–104. See Health and Safety Executive v Thames Trains Ltd [2003] EWCA Civ 720.

44. 45. 46.

Morrison Sports Ltd v Scottish Power [2009] ScotCS CSIH 92. The appeal, Apache Energy Ltd v Alcoa of Australia Ltd (No 2) [2013] WASCA 213, was concerned with the question of negligence and not breach of statutory duty.

47.

Compare BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2011] NSWSC 908 at [239]–[242] where a successful workplace safety-related successful BSD claim was made regarding a gas explosion on a factory premises due to unsafe gas supply equipment. See Armstrong v Hastings Valley Motorcycle Club Ltd [2005] NSWCA 207 at [15].

48. 49. 50.

See Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 2) [2011] VSC 168. Herbert v Harold Shaw Ltd [1959] 2 QB 138.

51. 52.

Hartley v Mayoh & Co [1954] 1 QB 383. If the objection is raised that the above reasoning cannot be used to impose civil liability because it contradicts s 267(a) by referring to the Act to do so, the answer is clear: it is the substantive provision of the Regulation that is imposing the obligation. Nothing in the Act is being taken to confer a civil obligation. The Act is simply being referred to, to allow proper interpretation of the Regulation.

53. 54.

See especially Mason P at [53], [90]. See Nicholls v Austin (Leyton) Ltd [1946] AC 493 and other cases discussed in more detail by H Glass, M McHugh and F Douglas in Ch IX of their book, noted in the Further Reading list at the end of this chapter.

55.

But the courts may still be persuaded to give a restrictive interpretation to statutory

57.

provisions: see Stergiou v NA Noulikas Holdings Pty Ltd [1994] ACTSC 113: the fall of rubble down a slope was not covered by regulations requiring protection from ‘overhead’ dangers. Under the HSW Act s 47(2), ‘health and safety’ regulations made pursuant to s 15 of that Act are explicitly said to be civilly actionable by injured persons. See, for example, Lord Nicholls at [10], [16]–[17].

58. 59.

Following HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422. See especially [73], [81]–[82].

60.

Overturned on appeal in The Uniting Church v Takacs [2008] NSWCA 141 on the question of whether a body that invites a painter to offer a quote on possible painting work is ‘carrying out’ building or construction work (dissent by Basten JA). Note that the former Factories, Shops and Industries Act 1962 (NSW) s 27(2) statutorily enacted this rule.

56.

61. 62.

63.

See Stark v Post Office [2000] ICR 1013. The regulation required that an employer ‘ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair’. The plaintiff in Stark, a postman, was injured when part of his bicycle failed. The absence of the word ‘reasonable’ in the particular statutory provision in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 did not prevent Kirby J when in the High Court from finding that the statute involved in that case imposed a duty on the landlord of ‘reasonable’ care, not an absolute duty (at 415): ‘In the context, and having regard to the other obligations imposed both on the landlord and on the tenant, it appears more likely that Parliament was imposing obligations which could reasonably be fulfilled rather than obligations exposing landlord and tenant alike to absolute duties.’

64. 65.

See the joint judgment of Gleeson CJ, Gummow and Hayne JJ: at [34]. At [61]–[62].

66.

Note that the other members of the court specifically agreed with the comments of Callinan J: at [39] (joint judgment), at [58] (Gaudron J). Her Honour’s comments should also be noted, however: ‘the issues raised by a provision such as s 24(2a)(a) are such that it may take very little for the evidentiary burden to shift to the defendant. Thus, for example, if a plaintiff establishes that there was an effective safety measure that could have been taken and that it was relatively simple and inexpensive, that may well be sufficient to impose on a defendant the evidentiary burden of establishing that, in the circumstances, that measure was not reasonably practicable.’ See also Calvert v Mayne Nickless Ltd (No 1) [2005] QCA 263 at [79]. See N Foster, ‘Breach of Statutory Duty and Risk Management in Occupational Health and Safety Law: New Wine in Old Wineskins?’ (2006) 14 Tort Law Review 79–104. Important United Kingdom decisions interpreting industrial safety legislation handed down since publication of that article include Robb v Salamis (M & I) Ltd [2006] UKHL 56; Spencer-Franks v Kellogg Brown and Root Ltd [2008] UKHL 46; Smith v Northamptonshire County Council [2009] UKHL 27 and Baker v Quantum Clothing Group Ltd [2011] UKSC 17. See also Threlfall v Hull City Council [2010] EWCA Civ 1147; Chief Constable of Hampshire Police v Taylor [2013] EWCA Civ 496.

67.

68.

Those interested in further reading on the United Kingdom cases will find B Cotter and D Bennett, Munkman on Employer’s Liability, 16th ed, LexisNexis, London, 2013 a useful resource.

69. 70.

See Chapter 5 at 5.46. See Chief Constable of Hampshire Police v Taylor [2013] EWCA Civ 496 at [19].

71.

Duma v Mader International Pty Ltd [2013] VSCA 23 at [63]–[65], Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6. See the summary confirming that this is the law in Transfield Construction v Peers [2008] NSWCA 215 at [82].

72. 73.

Because the provisions of CLA 2002 Pt 1A only apply to actions based on ‘negligence’, under s 5A of that Act, and this word is defined in s 5 to mean ‘failure to exercise reasonable care and skill’, an ‘absolute’ liability under statute which was not based on such a failure, would hence not be governed by CLA 2002 Pt 1A.

[page 361]

Part 3 WORKPLACE SAFETY AND CRIMINAL LAW 7. 8. 9. 10.

Criminal WHS Law: General Introduction, Primary Duties Criminal WHS Law: Other Health and Safety Duties Criminal WHS Law: Other Duties and Enforcement Workplace Safety under Regulatory Criminal Law

[page 363]

7 CRIMINAL WHS LAW: GENERAL INTRODUCTION, PRIMARY DUTIES

Aims The aims of this chapter are: to provide some historical background to the development of criminal penalties for breaches of workplace safety rules; and to outline the operation of the current ‘harmonised’ Australian general duties legislation, with particular attention on the primary obligation of persons conducting a business or undertaking.

Objectives After completing this chapter, you should be able to: describe how the present legislative framework for regulation of workplace safety developed; and identify possible breaches of the primary work and safety

provisions given a particular workplace situation.

Overview: 7.1 The Work Health and Safety Act 2011 (NSW) (WHSA) will be discussed in detail in the next three chapters. The chapters are arranged as follows: Chapter 7: General introduction to the area, and discussion of the general duties of persons conducting a business or undertaking (PCBUs) under WHSA s 19. Chapter 8: Discussion of other health and safety duties under WHSA ss 20–27, including the personal liability of company officers. Chapter 9: Discussion of other duties arising under the Act, and material relating to penalties, enforcement and sentencing. For a broad general overview of the principles governing WHS law in Australia today, see Foster (2014) noted in the Further Reading list at the end of this chapter. [page 364]

Introduction to OHS/WHS legislation Strategies for safety: compensation, prevention 7.2 To begin this chapter, recall what we have covered so far. As a general summary, the overall aim of the law in the area of workplace (previously ‘occupational’) health and safety is to make the workplace safer. As discussed in earlier chapters, law is only one of a number of ways to achieve this aim. In relation to legal remedies there are two primary approaches:

compensation and prevention. As noted previously (see 1.13), we can distinguish these two by the point in time at which they come into effect in relation to a workplace accident. Figure 7.1:

Different approaches under WHS law

Logically, it is best to deal with a (possible) accident before it happens, so the first thing to focus on should be prevention. However, neither history nor the law is very logical, which is why the first part of this book examined the area of compensation: awards of money made to people who have already been injured. Historically, this was where the issue of safety first had an impact on employers — when the law started to require them to pay out for workplace injuries. 7.3 As Figure 7.1 illustrates, compensation provisions do have an impact on the area of prevention. Hopefully, an employer who has been required to pay out damages to one injured employee will decide that to avoid incurring that kind of expense in the future it is worth attempting to make the workplace safer. However, as this approach requires that a sufficiently large number of employees are actually injured or killed before changes take place, it is obviously more sensible and humane to try to legislate for prevention. This is the approach of the national

Model Work Health and Safety Act 2011 (WHSA)1 and other workplace safety legislation: to [page 365] prescribe standards that must be adhered to before an injury occurs, and to accompany a failure to implement those standards with criminal penalties.

Legal approaches to workplace safety 7.4 Table 7.1 below compares and contrasts the different legal approaches to workplace safety. Table 7.1:

Legal approaches to workplace safety

Approach

Negligence

Breach of statutory duty

Prevention or Type of compensation legal action Compensation Civil

Compensation

Civil

Workers’ Compensation compensation2

Civil

WHS legislation

Criminal

Prevention

Initiator of action

Basis of action

Injured party Breach of duty of care — injury Injured party Breach of statutory provision — injury Injured party Injury in course of employment Inspector Breach of statutory duty — no injury required

Result

Award of damages Award of damages

Award of set amount Fine, imprisonment

In the following discussion of the WHS legislation, we move from the area of civil law, where an individual takes action, to the area of criminal law, where a representative of the state (in New South Wales, for example, a SafeWork NSW inspector) takes

action. Of course, the same workplace incident might give rise to both types of court action, though they would be heard in different courts and in different sets of proceedings. In this chapter the focus is on the criminal proceedings.

History and general issues History of WHS legislation 7.5 To understand the situation that exists today, it is helpful to consider some of the history of workplace safety legislation. United Kingdom factories legislation 7.6 As is the case with the majority of Australian law, we can trace the origins of our present laws in the area of workplace safety to the United Kingdom. Both the initial form of legislation, and then later major reforms, have been heavily influenced by models from the United Kingdom. [page 366] Neil Gunningham’s excellent survey of the area contains a helpful treatment of the early history of this legislation.3 Most of the following review will be a summary of this work.4 The first agitation for legislation to deal with conditions of work in the new factories that sprang up during the Industrial Revolution came from those concerned with the appalling exploitation of children in mines and textile factories. In the early part of the nineteenth century a number of attempts were made to reduce working hours in these places, and to raise the minimum age at which children could be employed. These measures met with resistance from the factory and mine owners whose profits

were increased by paying low wages to young children who worked long hours. 7.7 Following the failure of a number of earlier attempts at regulation, in 1833 the first significant legislation was enacted: Factories Regulation Act 1833 (UK). The Act was important because for the first time it provided for enforcement of its provisions by salaried inspectors. Gunningham examines the reasons behind the legislation, and offers some suggestions as to why it was supported by the manufacturers. The main thing we need to note for our purposes is that this Act was the beginning of the legislative regulation of conditions in factories. The Act was mainly concerned with working hours, and provided: a prohibition on employment of children under nine years of age; restriction of the working hours of 9–13 year olds to 48 hours a week; restriction of the working hours of 13–18 year olds to 69 hours a week; prohibition of employment of under 18 year olds at night; and compulsory education for under 14 year olds. 7.8 The Act did not, however, deal with the fencing of dangerous machinery, although an earlier Bill introduced by Lord Ashley5 had. However, as time progressed, it became more and more evident that such legislation was required. As Gunningham relates, people in Manchester, a heavily industrialised area, suffered from so many injuries and disfigurements caused by industrial accidents that one writer at the time described conditions as: … like living in the midst of an army just returned from a campaign.6

[page 367]

Any suggestion that machinery be fenced was resisted by manufacturers, who defended their right to introduce new technology without particular regard to the safety of workers. At a time when, as mentioned at 4.9, the defence of common employment tended to drastically limit the possibility of common law damages, few factory owners saw the need for increased safety measures. In 1840, Lord Ashley, who had been one of the leading supporters of the reduction of working hours for children, chaired a parliamentary committee that recommended amendment of the 1833 Act to cover the issue of fencing dangerous machinery. The case of Cotterell v Stock in 1840 became a notorious example of the deficiencies of the law. Elizabeth Cotterell, a 17-year-old girl, was injured when she was caught in an unfenced revolving shaft, sustaining broken limbs and severe lacerations. Her employer responded by deducting money from her wages for the part of the week she could not work!7 Finally, in the Factories Amendment Act 1844 (UK), provisions were introduced for the first time to require machinery to be fenced and for accident victims to receive some compensation. 7.9 During the remainder of the nineteenth century, safety laws were gradually extended to cover more industries, and further restricted the exploitation of children and women that had been a feature of the early part of the growth of industry. Whether it was due to increased concern for workers, or a realisation that a healthy workforce was more productive than a sick workforce, the principle of legislating for workplace safety became well established in the second half of the nineteenth century in England. However, while the principle was established, the actual enforcement of the laws was a different matter. In the early days of the legislation the penalties were so low, and the inspectors so few, that it was difficult to enforce the law. In the 1850s the government tried to increase prosecutions for breaches, to be met

by a strong backlash from the manufacturers. An amendment to the legislation in 1856 watered down some of the fencing requirements in a way that discouraged the inspectors from their work. Gunningham describes how this led to a move away from formal prosecutions to a culture where a certain level of ongoing breach was regarded as normal, and inspectors saw their main role as ‘persuasion’ rather than prosecution. The general perception also developed that breaches of the safety legislation, simply because they were so common, were not ‘really’ criminal (in somewhat the same way that many people today may not regard false income tax returns, or speeding offences, as ‘really’ criminal). [page 368] By the end of the nineteenth century, and into the beginning of the twentieth, there were a number of separate Acts dealing with safety measures in different industries and in different types of workplaces, although there were still areas not covered by any legislation at all. Early Australian legislation 7.10 In Australia, as industry started to grow in the second half of the nineteenth century, the same problems arose as in the United Kingdom, and legislation similar to the United Kingdom legislation was gradually enacted. The first official workplace regulation legislation was passed in Victoria in 1873, but it was some time before effective legislation was in place, as the manufacturers were a powerful lobby group in the young colonies. The Factories and Shops Act 1885 (Vic), the first real attempt to provide legislation with enforcement provisions, exempted all factories already operating from most of its important sections! The first official legislation dealing with safety in New South

Wales may have been the Gunpowder and Explosive Consolidated Act 1876 (NSW).8 In New South Wales, the first general workplace safety legislation was the Factories and Shops Act 1896 (NSW). The direct descendant of that Act was the Factories, Shops and Industries Act 1962 (NSW) (FSIA 1962).9 Nearly all the Australian legislation was modelled on, if not directly copied from, the United Kingdom legislation of the time. Robens Report 7.11 The greatest impetus for change in this area in the twentieth century was the 1972 Report of the United Kingdom Committee on Safety and Health at Work, known after the chairman of the committee as the Robens Report. We can only deal with this important report fairly briefly.10 The Robens Report criticised the piecemeal nature of the workplace safety laws in place in the United Kingdom at the time. The committee found that the laws were too detailed, too hard to understand and simply too numerous. In addition, it identified various areas that were not covered by any laws. The Report made a fundamental philosophical assumption that the law was too detailed, and that it would work more effectively if much of this detail were dealt with in voluntary codes of practice, rather than in regulations. This would enable the [page 369] prescriptions to be updated as technology changed. The committee took the view that in the area of workplace safety the interests of management and employees basically coincided, and that as a result voluntary regulation could be made to work. Another major criticism that the Report made was that there was far too little involvement in the safety process by the people who were meant to be protected — the employees.

The Report recommended a move towards more uniform legislation that would cover a wide range of workplaces. At the same time it suggested a move away from specific rules being set out in the laws, towards a more general statement of duty which would be filled out by voluntarily adopted codes of practice. The committee also recommended structures for increased participation of employees in safety decisions.11 7.12 In the United Kingdom the legislation that implemented the Robens Report was called the Health and Safety at Work etc Act 1974 (UK) (HSWA 1974).12 Since a number of its provisions are similar to legislation introduced into Australia, and it forms an important part of the background to the Model WHSA, we will refer to this Act from time to time as we consider the legislation; cases on the English Act will be persuasive for, even though not binding on, Australian courts.13 In New South Wales, for example, there was a separate report, the Report of the Commission of Inquiry into Occupational Health and Safety, 1981, known as the Williams Report after its author, Mr T G Williams, a former industrial magistrate.14 Essentially, Commissioner Williams followed the same line as the Robens Committee in recommending an overall statement of duty rather than a multitude of separate laws, a move to codes of practice rather than detailed regulations, and increased worker participation in safety matters. Implementation of Robens in Australia 7.13 Over the course of the 1980s, all Australian jurisdictions introduced versions of the ‘Robens-style’ legislation. The following table notes the ‘Robens’ legislation in force immediately prior to the commencement of the ‘harmonisation’ changes discussed below.15 [page 370]

Table 7.2:

State and territory WHS legislation in force on 31 December 2011

Australian Capital Territory Commonwealth New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia

Work Safety Act 2008 Occupational Health and Safety Act 1991 Occupational Health and Safety Act 2000 Workplace Health and Safety Act 2007 Workplace Health and Safety Act 1995 Occupational Health, Safety and Welfare Act 1986 Workplace Health and Safety Act 1995 Occupational Health and Safety Act 2004 Occupational Safety and Health Act 1984

The majority of this legislation fixed primary responsibility on the ‘employer’, but then extended responsibility to a range of other duty holders. For example, the former Occupational Health and Safety Act 1985 (Vic) provided: 21 Duties of employers (1) An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health … 22 Duties of employers and self-employed persons Every employer and every self-employed person shall ensure so far as is practicable that persons (other than the employees of the employer or selfemployed person) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer or self-employed person.

This legislation was later replaced by the Act currently in force in Victoria, the Occupational Health and Safety Act 2004 (Vic).16 7.14 To illustrate how the ‘Robens’ legislation operated and was developed, we will consider the situation in New South Wales. The Occupational Health and Safety Act 1983 (NSW) (OHSA 1983) came into operation generally on 4 May 1983. This was later replaced by the Occupational Health and Safety Act 2000 (NSW) (OHSA 2000), which commenced on 1 September 2001. This Act implemented the recommendations of several reports: the socalled McCallum Report (Review of the OHS Act 1983: Final Report of the Panel of Review, February 1997), and the Workplace Safety Report of the Standing Committee on Law and Justice of the New

South Wales Legislative Council (Final Report, November 1998). The Second Reading Speech of the Minister on introducing the new Bill into the Legislative Assembly noted these two reports as the source of most of the innovations in the legislation.17 [page 371] The New South Wales Government later sponsored a review of the OHSA 2000, which ran during 2005. That review resulted in a draft exposure Bill amending the Act. The draft Bill proved controversial, and before a state election it was sent for independent review by a retired judge, Mr Paul Stein QC. Mr Stein’s report was presented to the government by 30 April 2007, but was not released for some time. It was then made available in the context of the submission of the New South Wales Government to the federal review of WHS law.

WHSA 2011 7.15 As noted previously,18 the federal review produced two reports that recommended far-reaching changes to the scheme for WHS laws in Australia.19 Agreement in principle was then reached on a ‘framework’ for reform by the Workplace Relations Ministers’ Council, and for development of draft model legislation. Legislation was to be enacted by all jurisdictions that were a party to the agreement (Western Australia had declined to sign off) to take effect by 1 January 2012. Implementation of Model to date 7.16 Of the nine possible jurisdictions (six states, two selfgoverning territories and the Commonwealth), the model Act commenced in five by 1 January 2012 (New South Wales, Queensland, Australian Capital Territory, Northern Territory and

the Commonwealth); two more (South Australia, Tasmania) commenced on 1 January 2013.20 Whether Victoria and Western Australia will join the scheme in the future is unknown. Model Act in force from 1 January 2012 7.17 Queensland became the first jurisdiction to enact the legislation with Royal Assent being given to the Work Health and Safety Act 2011 (Qld) on 6 June 2011. The Queensland Parliament also enacted specific legislation dealing with recreational diving, which had been a part of its previous Act, the Workplace Health and Safety Act 1995 (Qld), but did not fit the Model — the Safety in Recreational Water Activities Act 2011 (Qld), which also commenced on 1 January 2012.21 [page 372] New South Wales followed by enacting its version of the legislation on 7 June 2011, the Work Health and Safety Act 2011 (NSW) (WHSA NSW) departing slightly from the national Model Act by preserving the possibility of union prosecutions in some situations. Under WHSA NSW s 230(1)(c), a union can commence a prosecution for a Category 1 or 2 offence if the regulator (now SafeWork NSW) has declined to follow advice given by the Director of Public Prosecutions under s 231 of the Act.22 The WHSA NSW also departs from the Model by allowing prosecution for a Category 3 offence (the least serious) to be commenced in the Industrial Court as well as in the Local Court. (The Model legislation does not specify which courts should be involved, but it does assume that it will be the same one, whereas the WHSA NSW allows for this variation.) The Australian Capital Territory Work Health and Safety Act 2011 (ACT) was ‘notified’ (that is, came into force) on 29 September 2011. It appears to follow the Model legislation.

The Commonwealth legislation, the Work Health and Safety Act 2011 (Cth) (WHSA Cth), was enacted after passing the Senate on 24 November 2011. There were some minor additions to the Model to take account of the particular situation of the Commonwealth: for example, s 12B adds an obligation to consult those who hold duties under similar laws in other jurisdictions, as well as within the one jurisdiction, and ss 12C–12E exempt certain organisations in the interests of national security, defence and federal police operations. However, on the whole the Model Act seems to apply as it does elsewhere. One feature worthy of comment in the WHSA Cth, however, is that it applies, as had the most recent version of the previous Occupational Health and Safety Act 1991 (Cth), to what are called ‘non-Commonwealth licensees’. These are large national companies which were able to be self-insurers and which were previously approved to join the Commonwealth WHS and compensation schemes under a system introduced by the Howard government. The Labor government initially left this system in place, but the indications were that it planned to ‘roll back’ these companies into the state systems. The Explanatory Memorandum for the WHSA Cth describes the application of the Commonwealth law to these companies as ‘for a transitional period’.23 However, the extension of the Commonwealth scheme to private companies was revived by the Coalition government, which announced that the previous ‘moratorium’ was lifted on 2 December 2013. There are 33 licensees as at the time of publication, five of whom joined the scheme after 2013.24 In the Northern Territory the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) also commenced operation on 1 January 2012. [page 373] Jurisdictions where Model Act came into force from 1 January 2013

7.18 In South Australia, the Work Health and Safety Act 2012 (SA), with some slight amendments to the national model, came into operation on 1 January 2013. In Tasmania, the Work Health and Safety Act 2012 (Tas) follows the national model and also commenced operation on 1 January 2013. Jurisdictions where Model Act not yet in force 7.19 While the Victorian Government initially indicated support for the Model law, more recently it has expressed some reluctance to do so. There is a certain degree of irony in the withdrawal of Victoria from the harmonised scheme, given that a cursory examination of the two major National Inquiry reports that lie behind the Model legislation would reveal that in many areas the Inquiry preferred precisely the legislation already in force in that state. But the current website says that there is no intention to implement the harmonised model at all.25 The State of Western Australia released a model Work Health and Safety Bill 2014, and invited public comments on the draft, which have now closed. The government has indicated that after considering comments it may move to enact the Bill, which is describe as ‘contain[ing] the core provisions of the model WHS Bill with some modifications to suit the Western Australian working environment’.26 The Western Australia Department of Mines and Petroleum has indicated plans to consolidate the safety aspects of its mining, petroleum and MHF legislation into one Act.27 Future for Model Act 7.20 The current situation, then, is that in seven jurisdictions the Model legislation has commenced operation, and in two it is not yet operating. Western Australia may eventually enact a modified version of the Model. The Western Australian Government has expressed concerns about matters such as penalties, rights of entry and other powers for union

representatives, and an issue to do with the reversal of onus of proof in ‘victimisation’ claims; these might be areas in which Western Australian legislation would depart from the Model. 7.21 Despite the current lack of complete uniformity, however, at least a majority of Australian jurisdictions have taken the Model Law on board. In the remainder of this chapter we will survey the WHSA as in force in New South Wales, noting briefly any significant differences in the other adopting states. Of course, any new legislation will be read by the courts in the context of the previous legislation on the same topic, and often by courts that have been interpreting that prior law. Hence we also provide a brief overview of the previous New South Wales [page 374] legislation to give some context to decisions that involve interpretation of the new law. In particular, since the judgments of the specialist New South Wales Industrial Court on the previous legislation are the most extensive and carefully reasoned from all of the jurisdictions, they will no doubt continue to be influential in the interpretation of the Model legislation in the future.

Stop and Think 7.1 We will examine the WHSA below, but as a preliminary exercise obtain a copy of the Act (you can download the New South Wales version from ) and look through the Table of Contents to get a general overview of how it implements the principles set out by the Robens Report, noted above at 7.11. Note down which of those principles seem to be addressed by the WHSA. Despite being ‘third

generation’ WHS legislation, the influence of the principles of the Robens Report is still clearly evident.

There have been ongoing discussions as to whether legal WHS obligations should be ‘prescriptive’, ‘performance-based’ or ‘system-based’.28 In general, these are the three main approaches to types of WHS laws. ‘Prescriptive’ laws lay down very specifically what should be done when (a lot of the older, pre-Robens laws were like this). ‘Performance-based’ laws set out goals to be achieved but leave the method of doing so up to individuals (to some extent the WHSA is like this, the ‘goal’ being a very general one: ‘ensure safety’). ‘Systems-based’ laws tend to set up certain procedures which should be followed (the techniques of hazard and risk assessment, risk management set out in parts of the WHS Regulation 2011 tend to be like this). In the end, a mixture of these types of laws is used.

Objects, scope and outline of WHSA 2011 Text of Act 7.22 While reading this chapter, it would be helpful if you are able to refer to a copy of the Act. (See Stop and Think 7.1 above for online sources.) The following discussion will mostly refer to the New South Wales version of the legislation, but since it is ‘model’ legislation all the section numbers will be the same in all the jurisdictions where the Model Law has been adopted. While it is not essential, you may also find it helpful to access a copy of the older New South Wales legislation, the OHSA 2000, or the legislation in force in the jurisdiction in which you live, if your jurisdiction has not enacted the Model Law. As mentioned previously, courts dealing with the new WHSA will no doubt be influenced to some extent by the previous law.

[page 375] Appendix 7 at the end of the book contains a comparison table that cross-references the provisions of the OHSA 2000 to the WHSA, enabling those who are familiar with sections of the older form of the legislation to see how they are dealt with in the Model Law. It also allows cross-reference to court decisions under the previous law.

Regulations 7.23 In jurisdictions that have adopted the Model Law, the regulations in force under previous legislation have now been replaced by a set of Model Regulations. In New South Wales these are called the Work Health and Safety Regulation 2011 (2011 No 674) (the WHSR).29 We will consider this Regulation briefly in Chapter 10.

Outline 7.24 We will first look at an outline of the WHSA to become familiar with the way it is arranged. As noted when discussing statutory interpretation, the way that a court interprets legislation will depend a great deal on the context: where the legislation appears in the Act and how it is connected with other parts of the Act. Like the previous OHS legislation, the WHSA imposes criminal penalties on various duty holders in the workplace as a means of ‘securing the health and safety of workers and workplaces’, to quote the objects section, s 3(1).30 Broadly speaking, it does so in the following way. After defining a number of key terms in Pt 1, Pt 2 of the Act forms its ‘heart’, imposing a number of general health and safety duties on a wide range of workplace participants. As will be

explained below (see 7.31), the range of persons who bear duties is expanded well beyond that previously covered in the former OHSA 2000. Part 3 requires various incidents to be notified to the regulator (to assist in enforcement), and Pt 4 contains a series of special obligations not to use certain workplaces or equipment unless they have been ‘authorised’. 7.25 Part 5 contains detailed provisions to facilitate consultation between various ‘stakeholders’ under the legislation, especially between workers and other duty holders. These include provisions requiring the appointment of ‘health and safety representatives’ and committees. The representatives may in some cases issue what are called ‘provisional improvement notices’. Part 6 prohibits certain types of discriminatory and ‘coercive’ workplace behaviour connected to workplace safety (essentially dealing with cases where a worker may be penalised for a role they play in dealing with safety issues). Part 7 deals with situations [page 376] where there may be entry into workplaces by union officials to attend to safety matters. A system of ‘WHS entry permits’ governs who can take advantage of these rights. Parts 8 and 9 set out the functions and powers of the relevant state regulator, which for New South Wales is now called ‘SafeWork NSW’31 (the new ‘harmonised’ system does not propose to set up a central federal regulatory body). The provisions empowering the regulator to make investigations, to enter premises, to ask questions and receive answers, are all quite similar to those governing the regulators under previous laws. Under Pt 10 provision is made for enforcement measures. 7.26 A new tool in the regulators’ kit is contained in Pt 11, ‘Enforceable undertakings’. This is a slightly controversial option

which has previously been available in some jurisdictions, but which will be new for others such as New South Wales. This option will allow a business operator to choose, instead of being prosecuted, to undertake some project or activity that will contribute to workplace safety in the future.32 Part 12 deals specifically with provisions for administrative review of certain decisions under the Act. Part 13 generally deals with criminal proceedings (limitation periods, sentencing options and similar matters). However, in Div 7 it contains provisions allowing certain obligations under Pt 7 (concerning entry into workplaces by WHS permit holders) to be dealt with as ‘civil penalty provisions’, which will mean that someone who is found liable to pay a penalty will not incur a criminal conviction.33 Part 13 Div 8, however, which currently only contains s 267, expresses an intention that the general provisions of the Act are not to be taken to create civil liability at large, presumably with reference to the tort of breach of statutory duty.34 Part 14 contains a miscellaneous group of ‘general’ provisions, and concludes with what is an important topic in safety legislation, the power to make regulations. Schmidt J provided a summary of the WHSA similar to that above in Hunter Quarries Pty Ltd v New South Wales (Dept of Trade & Investment) [2014] NSWSC 1580 at [30]–[44]. [page 377]

Objects of Act 7.27 The objects of the Act are very clearly set out in s 3. As was noted when discussing legislative interpretation in Chapter 2, nowadays courts take a ‘purposive’ approach to interpretation. If there is any doubt, they will refer to a provision like this to resolve the doubt.

This general approach can be seen in a number of judgments on the former legislation. For example, in Kirkby v A & MI Hanson Pty Ltd (1994) 55 IR 40 at 49, Hungerford J of the Industrial Court of New South Wales referred to the general purpose of the OHSA 1983 as ‘to secure the health, safety and welfare of persons at work’, the phrase used both in the long title and in s 5 of that Act. In particular, the word ‘secure’ was said to support the emphasis of that Act on ‘absolute obligations’, subject only to the specific defences provided by that Act in s 53. (However, the use of the word ‘secure’ in WHSA s 3(1) must be read in the context of that Act, where obligations are usually qualified by the words ‘so far as is reasonably practicable’.) Another example of the judicial use of an objects section can be found in WorkCover Authority of New South Wales v Air Liquide Aust Ltd [1998] NSWIRComm 182, where Fisher P was commenting on a criticism by defendant’s counsel that a particular prosecution should not have been brought: The Occupational Health and Safety Act, 1983 refers to an inspectorate which is directed to observe, amongst other things, the objects set out in section 5 of the Act. … I consider that this [statement of objects] enunciates a public duty and that the decision of the prosecutors here was consistent with the type of objects that the Act specifies.35

7.28 Since the objects may be relevant in interpretation, it is worthwhile to carefully study the first part of the section. 3 Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant …

[page 378]

As you can see, the object is expressed very broadly. While s 3(1) refers to ‘workplaces’, the harm against which people are to be protected is described more generally in s 3(1)(a) as that which may flow from risks ‘arising from work’. This would apply to members of the public put at risk by workers, as well as to those who are paid to work in an undertaking. It could be read as covering, for example, the issue of pollution generated by a chemical plant impacting on people in the neighbourhood. While some concern has been expressed in the media that this type of coverage encroaches into areas traditionally dealt with by other laws (such as those concerned with public safety or product safety),36 the fact is that these areas are clearly connected to the carrying out of work, and it seems sensible to bring them under the umbrella of WHS legislation. When referring to the objects of the WHSA, the Industrial Court has said that the public interest is an important factor.37 It is perhaps worthy of comment that the object section in the WHSA contains no explicit reference to ‘psychological’ harm, in contrast, for example, to the former OHSA 2000 s 3(c). However, there seems little doubt that the words ‘harm to health, safety and welfare’ would today include the need to take into account both physical and psychological injuries.

Worker involvement: workplace health and safety committees and representatives 7.29 One of the features of the Robens Report was its emphasis on the need to involve workers in improving workplace safety. The WHSA now deals with consultation arrangements in detail in Pt 5. Section 47 outlines an explicit duty to consult with workers about safety issues. ‘Agreed procedures’ for consultation are encouraged, which are to be consistent with principles set out in s 48. The circumstances when consultation is required are set out in s 49.

The OHSA 2000 and OHSR 2001 contained detailed provisions concerning consultation arrangements. The WHSA, however, focuses on the office of ‘health and safety representative’ (HSR) in Pt 5 Div 3, and on health and safety committees: Pt 5 Div 4. The Act contains comprehensive rules regarding the formation of ‘work groups’, the function of which is to elect HSRs. These HSRs are generally given powers to investigate complaints about safety, and (in a new development for New South Wales) to issue what are called ‘provisional improvement notices’, or to order cessation of work: see Pt 5 Divs 6 and 7. Division 5 also contains provisions for what is somewhat coyly called ‘issue’ resolution (presumably it is no longer politically correct to call something a ‘dispute’!).38 [page 379]

General duties as to safety in workplace 7.30 We will now consider the general duties imposed by the legislation, and the definition of duty holders. The heart of the Act is found in Pt 2, where a number of general duties are imposed on various categories of people in relation to workplace safety. Table 7.3 below gives an overall summary of the duties contained in Pt 2. However, all the options are not covered in this table, and some minor offences are omitted. Further discussion of these is to be found in the text following the table. Table 7.3:

Summary of major safety duties under WHSA 2011 Pt 2

Section

Person bound39

19(1)

Person conducting a business or undertaking

Person to whom duty owed Workers engaged or caused to be engaged;

Nature of duty

Place

Other circumstances

Ensure so far as is reasonably practicable,

While workers at work

N/A

(PCBU): defined in s 5 19(2)

PCBU

19(4)

PCBU who owns or controls accommodation

19(5)

Self-employed person

workers whose activities are influenced Other persons (for reasons noted below at 7.51, this must mean ‘persons other than those protected under subsection 19(1)’) A worker occupying the accommodation

The person themselves

health and safety Ensure so far as is reasonably practicable health and safety not put at risk

[No ‘place’ (Arising) from link work carried out specified] as a part of the conduct of the business or undertaking

Maintain, so far as is reasonably practicable, the premises so worker not exposed to risks to health and safety Ensure so far as is reasonably practicable, own health and safety

The premises

Occupancy by worker is necessary because other accommodation not reasonably available

While at work

N/A

[page 380] Table 7.3:

Summary of major safety duties under WHSA 2011 Pt 2 – cont’d

Section

Person bound39

20(2)

Person with management or control of a workplace

Person to whom duty owed Any person

Nature of duty

Place

Other circumstances

Ensure so far as is reasonably practicable workplace, means of

N/A

Excludes residential premises unless occupied for the purposes

21(2)

Person in control of fixtures, fittings or plant

Any person

22(2)

Designer of plant, substance or structure for use as, or at, a workplace

23(2)

Manufacturer of plant, substance or structure for use as, or at, a workplace

Persons who use, handle, store, construct or do any reasonably foreseeable activity in relation to manufacturing, using or disposing of, the plant etc; or who are in the vicinity and exposed to it, or otherwise affected Persons who use, handle, store, construct or do any reasonably foreseeable activity in relation to manufacturing, using or disposing of, the plant etc; or who are in

access and egress, and ‘anything arising’ are without risks to health and safety Ensure so far as is reasonably practicable fixtures etc without risks to health and safety

of the business or undertaking (see 8.5 for clarification)

N/A

Ensure so far as is reasonably practicable plant etc designed to be without risks to health or safety. NB: see also s 22(3), carry out testing, s 22(4) and (5) provide information

The use etc must take place ‘at a workplace’, except for s 22(2)(f) where they may simply ‘be affected’ by a use etc by others

Ensure so far as is reasonably practicable plant etc manufactured to be without risks to health or safety; NB: see also s 23(3), carry out testing, s 23(4) and (5)

The use etc must take place ‘at a workplace’, except for s 23(2)(f) where they may simply ‘be affected’ by a use etc by others.

Excludes residential premises unless occupied for the purposes of the business or undertaking: see 8.5 Some of the provisions only operate when the plant etc is being used ‘for a purpose for which it was designed’

Some of the provisions only operate when the plant etc is being used ‘for a purpose for which it was designed or manufactured’

the vicinity and provide exposed to it, information or otherwise affected

[page 381] Table 7.3:

Summary of major safety duties under WHSA 2011 Pt 2 – cont’d

Section

Person bound39

24(2)

Importer of plant, substance or structure for use as, or at, a workplace

25(2)

Supplier of plant, substance or structure for use as, or at, a workplace

Person to whom duty owed Persons who use, handle, store, construct or do any reasonably foreseeable activity in relation to manufacturing, using or disposing of, the plant etc; or who are in the vicinity and exposed to it, or otherwise affected Persons who use, handle, store, construct or do any reasonably foreseeable activity in relation to manufacturing, using or disposing of, etc the plant etc; or who are in the vicinity and exposed to it, or

Nature of duty

Place

Other circumstances

Ensure so far as is reasonably practicable plant etc is without risks to health or safety; NB: see also s 24(3), carry out testing, or ensure testing carried out; s 24(4) and (5) provide information Ensure so far as is reasonably practicable plant etc is without risks to health or safety; NB: see also s 25(3), carry out testing, or ensure testing carried out; s 25(4) and (5) provide

The use etc must take place ‘at a workplace’, except for s 24(2)(f) where they may simply ‘be affected’ by a use etc by others

Some of the provisions only operate when the plant etc is being used ‘for a purpose for which it was designed or manufactured’

The use etc must take place ‘at a workplace’, except for s 25(2)(f) where they may simply ‘be affected’ by a use etc by others

Some of the provisions only operate when the plant etc is being used ‘for a purpose for which it was designed or manufactured’

26(2)

PCBU whose business installs, constructs or commissions plant or structure to be used at, or as, a workplace

otherwise affected Persons who install or construct the plant etc, who use it, who carry out foreseeable activities in relation to it, or are in the vicinity and whose health etc may be affected

information Ensure so far as is reasonably practicable that the installation etc of the plant etc is without risks to health and safety

All protected uses must take place ‘at’ or ‘in the vicinity of’ a workplace

Some provisions only operate where the plant etc is being used ‘for a purpose for which it was installed’ etc

[page 382] Table 7.3:

Summary of major safety duties under WHSA 2011 Pt 2 – cont’d

Section

Person bound39

27

An ‘officer’ of a corporate PCBU with obligations under the WHSA (not just restricted to Pt 2)

28

Worker (see broad definition in s 7)

Person to whom duty owed Unclear? In one sense the duty is owed to the PCBU; but in a broader sense the duty is owed to the persons protected by the PCBU’s obligations The worker themselves; ‘other persons’ generally

Nature of duty

Place

Other circumstances

Exercise due diligence to ensure the PCBU complies with its safety obligations: see s 27(5) for guidance on due diligence

[No restrictionwill presumably apply wherever decisions about the PCBU are taken]

Officer may be convicted of an offence even if PCBU not convicted: s 27(4)

Take reasonable care for own health and safety, and for others; comply with safety directions of

While at work N/A

29

A person (whether or not they have other duties)

The person themselves; ‘other persons’ generally

PCBU Take reasonable care for own health and safety, and for others; comply with safety directions of PCBU

At a workplace

N/A

Duty holders and their obligations under WHSA40 Primary duty holder 7.31 A major change that was introduced by the WHSA (in comparison with most other previous legislation) is that the primary duty holder in the legislation is no longer the ‘employer’ or the ‘self-employed person’, but is described as a ‘person conducting a business or undertaking’ (referred to here as a PCBU or ‘business operator’).41 Thus the main duty provision, s 19, reads: [page 383]

19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

It is apparent that this casts the net fairly wide. It is clearly intended to remove much of the debate about whether a worker is an ‘employee’ or an ‘independent contractor’, and sensibly to

focus on the fact that an undertaking of some sort is being conducted which will create certain risks, and to impose obligations on those in charge of the undertaking to plan ahead and endeavour to remove risks as far as possible. The provision will apply even where a worker is not at premises controlled by the PCBU, such as where workers are removing trees from another property pursuant to the business of a tree-removal service.42 7.32 The meaning of PCBU is clarified in s 5, although there is no ‘definition’ of the term in the traditional sense. That is, it seems that the words are to be given their ‘ordinary’ meaning, and s 5 simply clarifies what might be otherwise uncertain. Points that are clarified by s 5 include: A person can ‘conduct’ a business alone or in partnership with others (hence all ‘partners’ in a professional firm are individually liable as PCBUs): see s 5(1)(a), (2) and (3). It is not necessary for the ‘business or undertaking’ to be conducted for profit: s 5(1)(b) (the way the Act applies to nonprofit organisations is discussed at 9.7). Someone does not, however, ‘conduct’ a business ‘to the extent that’ the person is engaged ‘solely’ as a worker or officer of the business (so that a ‘director’ of a company will not themselves be a PCBU, although as we will see in Chapter 8 will have other obligations under s 27). Local government councillors who are elected are not to be regarded as PCBUs simply by virtue of their office. Volunteer associations do not conduct a business or undertaking (discussed further at 9.7). Further duties 7.33 In addition to the ‘primary’ duty of care (which is how s 19 is described), Pt 2 Div 3 contains ‘further duties’ of business operators.43 These duties attach where a

[page 384] business or undertaking manages or controls a workplace (s 20), or fixtures, fittings or plant at workplaces (s 21); where a business or undertaking designs (s 22), manufactures (s 23), imports (s 24) or supplies (s 25) workplace plant, substances or structures; or where a business or undertaking installs, constructs or commissions workplace plant or structures: s 26. Other duties are then imposed on persons who are not business operators. Section 27 imposes personal liability on company officers: discussed further in Chapter 8 at 8.18 ff. In s 28 ‘workers’ are given duties of ‘reasonable care’ for the health and safety of themselves and others at their workplace, and duties to comply with directions about safety. (One difference from the previous OHSA 2000 s 20 is that this duty to take care for one’s own safety was not imposed under that Act.) The scope of these provisions is fairly wide, given the extended definition of ‘worker’, which is provided in s 7.44 7 Meaning of worker (1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee; or (b) a contractor or subcontractor; or (c) an employee of a contractor or subcontractor; or (d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or (e) an outworker; or (f) an apprentice or trainee; or (g) a student gaining work experience; or (h) a volunteer; or (i) a person of a prescribed class … (3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

7.34 Remember that under this legislation, the duty of the business operator is not confined by the definition of ‘worker’ — while the term is used in s 19(1), most duties of business operators, in ss 19(2)–26, apply in relation to ‘persons’ generally. But this extended definition of ‘worker’ will impose new duties on a number of individual workplace participants who were not previously subject to those obligations. For example, under s 28, someone who is a volunteer gaining work experience will now have a clear obligation to look out for the safety of others in the workplace. Under former OHSA 2000 s 20, this obligation was only imposed on ‘employees’. Even more far-reaching is WHSA s 29, which imposes duties on any ‘person at a workplace (whether or not the person has another duty under this Part)’, to take [page 385] reasonable care for the safety of themselves and others in the workplace. Given the broad definition of ‘workplace’ in s 8 — as any ‘place where work is carried out for a business or undertaking’ — the Act will now arguably impose duties on customers shopping in a store, for example. General features of duties Onus of proof 7.35 Although each of these provisions contains far more detail than can be explored in an overview, a few general comments are possible. One of the great debates that has surrounded WHS law in Australia over the last few decades has been the question of what standard of care is required of duty holders, and how the legislation should structure the onus of proof. The ‘traditional’ way of organising these issues, going back to the United Kingdom Robens model in the Health and Safety at

Work etc Act 1974 (UK) (HSWA 1974, the progenitor of the Australian legislation), is for the duty to be qualified by way of a defence of ‘reasonable practicability’, with the accused person bearing the onus of proving that nothing more could reasonably and practicably have been done. That is reflected in HSWA 1974 ss 2 and 3, which require that safety be ensured ‘so far as is reasonably practicable’; s 40 of that Act then provides that the onus of proof on the issue falls on the defendant.45 Until 2011, the NSW OHSA 2000 s 8 achieved this result, arguably with more clarity, by requiring that safety be ‘ensured’, but allowing, by s 28, for a defence of reasonable practicability to be made out by the defendant. 7.36 In New South Wales, even prior to 1 January 2012, this legislative structure had been overturned, in anticipation of the Model legislation, by amendments to the OHSA 2000 made by the Occupational Health and Safety Amendment Act 2011 (NSW), which commenced operation on 7 June 2011. OHSA 2000 s 8 then required an employer to ‘ensure’ the health and safety of workers ‘so far as is reasonably practicable’, a concept which was explained to some extent by new s 7A. Since all the general duties provisions were similarly amended, the previous defence of reasonable practicability in s 28 was removed.46 Legislation in other Australian jursidictions, apart from New South Wales, followed different models, often incorporating the ‘defence’ into the statement of the duty. The model that has been adopted by the WHSA, in line with the decision on the issue that [page 386] was approved by the Workplace Relations Ministers’ Council, is for the duty itself to be qualified by words referring to ‘reasonable practicability’ (as we saw above at 7.13 was the case with the former Victorian legislation). So WHSA s 19 requires that the

PCBU ‘ensure, so far as is reasonably practicable’, the health and safety of workers.47 The onus of proving that there was something ‘reasonably practicable’ that could have been done to ensure safety, where there has been an injury or death, will fall on the prosecutor. 7.37 While it is arguable that the United Kingdom and previous New South Wales model was conceptually and practically preferable,48 it appears that in practice the new model will not operate in a dramatically different way to the previous legislation. According to information supplied by regulators, it seems that, even in New South Wales, their practice has always been to gather and present evidence on the question of reasonable practicability, and not simply to rely on the prima facie case to win the conviction. In almost all cases that are presented for prosecution, it will be very clear what further actions could have been taken, and the prosecution will simply have to present this to the court at an early stage. No doubt the decision of the High Court in Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 will provide an even greater incentive to clearly spell out what precautions should have been taken.49 In that decision the High Court affirmed that the structure of the former OHSA 1983 was, as noted at 7.35, that the onus of proving a defence lay on the accused once a risk to safety in the workplace had been identified. But it stressed that the nature of the risk to safety had to be identified. The onus of proof is one area, as noted above, where the OHSA 2000 differed from legislation in most other states. The majority of jurisdictions used the phrase ‘reasonably practicable’ or words to similar effect in defining the scope of the duty outlined in their legislation. 7.38

The High Court in Kirk, however, while agreeing that this

was the structure of the OHSA 1983, held that the New South Wales Industrial Court had been interpreting the Act incorrectly. The essence of the High Court’s view concerning the error made by the Industrial Court in interpreting the legislation was that a prosecution under the Act could only be validly brought where the prosecutor alleged an ‘identifiable’ risk. Hence a prosecution was invalid if the initiating document did not specify with particularity what should have been done by the accused to deal with the risk. The court stated (at [12]): Sections 15 and 16 comprehend that the generally stated duty is contravened when a measure should have been taken by an employer to obviate an identifiable risk.

[page 387] That those provisions are contravened where there has been a failure, on the part of an employer, to take a particular measure, is confirmed by references in ss 15 and 16 to what constitutes an offence. Sections 15(4) and 16(3) referred to ‘the act or omission concerned’ which ‘constituted a contravention’ of s 16 or s 15 respectively.1 Section 49 in Pt 6, which concerned the time for instituting proceedings for offences, provided that they must be instituted within two years ‘after the act or omission alleged to constitute the offence’. [emphasis added]50 1.

And see the Occupational Health and Safety Act 2000 s 12.

This interpretation was supported by reference to the application of the defence provision in former s 53. The reference to the need for a defendant to prove that it was not ‘reasonably practicable’ to take ‘the measure in question’, was said to imply that ‘[s]uch a defence can only address particular measures identified as necessary to have been taken in the statement of offence’. [emphasis added]51 It was held that Mr Kirk had been wrongly convicted, because the documents initiating the proceedings did not clearly identify the relevant risk and how it should have been avoided. 7.39 Although a consideration of how the Kirk decision affected the later interpretation of the former legislation is beyond the

scope of this book, a few points can be noted.52 Kirk illustrates the need for very careful attention to be paid in the future to what is alleged in a charge in terms of the particulars that are provided. Consideration also needs to be given to the possibility that, even if other proven elements might have made out a possible offence, if the matters that are alleged in the pleadings cannot be proven, the charge will not be proven. These issues remain important to any prosecution under the WHSA, where the explicit onus lies on the prosecutor to provide evidence that something that was ‘reasonably practicable’ could have been done to avoid the risk. Further illustration of the importance of the prosecution making out the relevant elements of the offence can be found in the later decision of the High Court in Baiada Poultry Pty Ltd v R [2012] HCA 14. This was an appeal under the Occupational Health and Safety Act 2004 (Vic), s 21 of which has a very similar structure to WHSA s 19 (requiring proof that an employer has failed, ‘so far as is reasonably practicable, [to] provide and maintain for employees … a working environment that is safe and without [page 388] risks to health’). In the circumstances, the High Court overturned a conviction of an employer in relation to an accident caused by the failure of a contractor. The court ruled that the jury ought to have explicitly been directed by the trial judge that the case was not made out unless the prosecution had shown ‘that Baiada’s exercising a right to control its subcontractors’ activities was a step that was reasonably practicable for Baiada to have taken to provide and maintain a safe working environment’. As this direction had not been explicitly made to the jury, the High Court ruled that this meant there had been a ‘substantial miscarriage of justice’, and the matter was sent back for a new trial. Kirk has been applied in some cases under the WHSA. In WorkCover Authority of New South Wales v Eastern Basin Pty Ltd

[2015] NSWDC 92, there was an unsuccessful prosecution under s 19(2) against the assemblers of an aluminium stack (known as Gauchi Packs) in relation to a stevedore’s death caused by a crushing pile of these stacks. The prosecution’s pleading, that the stevedore might have been injured by the entire Gauchi Pack falling over, was found to be too vague. The pleading did not explain the standard for the defendant to meet. The pleading was that the defendant failed to eliminate the risk by ensuring that they had a low height to width ratio so as to ensure the ingot lifts were stable, or by adding additional straps. The judge, Curtis DCJ, held (at [71]) that the requirement from the Kirk decision that the precise precautions which should have been taken, should be identified, was still applicable under a s 19 prosecution.53 Having considered the specific precautions that were pleaded, he held that he was not satisfied beyond reasonable doubt that either of them would have prevented the accident that occurred. The prosecution was dismissed. In a very brief decision in Archer v Simon Transport Pty Ltd [2015] QDC 263 Koppenol DCJ in the District Court of Queensland upheld the dismissal of a charge under the WHSA because there was no ‘meaningful identification’ of how work procedures or systems had led to the harm alleged. On the other hand, other superior courts have been reluctant to strike out prosecutions on Kirk grounds where it is clear from the relevant documents what should have been done. In Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344 the Victorian Court of Appeal, in a 2:1 decision, held that the charge in that case had been adequately specified and did not fall foul of the rules set out in Kirk. Since each of these decisions depends very much on the precise language used in both the charges, and in the relevant state legislation dealing with charges in general, it is hard to generalise. But elements of the majority decision in Baiada v Glenister included the following: The relevant Victorian procedural legislation, the Criminal Procedure Act 2009 (Vic), was different to the New South Wales

legislation considered in Kirk, and required that a charge contain ‘the particulars necessary to give reasonable information as to the nature of the charge’: Sch 1 cl 1(b). The majority held that hence Kirk was [page 389] not directly applicable to this situation: see [13]. But they did go on to consider the matter on the assumption that the Kirk approach should be taken. The facts of the case were that a contractor’s employee was injured on a chicken processing line. The charge alleged that there had been a failure to set up a system such that when cleaning was taking place, the line was not operating; and in the alternative, that the relevant system should have ensured that those cleaning the line did not come into contact with the various operating parts when the cleaning was taking place. The dissenting judge, Robson AJA, said that these charges were defective in that they did not specify the ‘means’ by which these goals should have been achieved (that is, in later particulars the prosecutor spelled out that a ‘tag and lock-out’ system could have been used, as well as ‘screening or guarding’ (see [69]), and his Honour implied that these details should have been included in the main charge: see, for example, his conclusion (at [171])). However, the majority, Ferguson and McLeish JJA, took the view that the charge as given adequately described the failures which demonstrated a lack of reasonably practical care, and that no more details were needed at the initial stage for Baiada to know the sort of case they would have to meet: see [53]. In coming to their decision the majority noted (at [50]), following the New South Wales John Holland decision referred to previously,54 that a charge which was framed in terms of ‘fail to provide an adequate system’ may still be specific enough to avoid a Kirk challenge, if the field of operations being referred to

in the context contains clearly agreed upon standards which can later be debated at trial. See also the decision of Southwood J in the Supreme Court of the Northern Territory, in S Kidman & Co v Lowndes CM and Director of Public Prosecutions (DPP) [2016] NTSC 3, where his Honour held that a fairly general charge was adequate to provide ‘reasonable information’ as to the nature of the charge under the Northern Territory procedural legislation, in the relevant ‘factual matrix’ of the specific case: see [44]. Some further consideration to other matters flowing from Kirk was given in the decision of the New South Wales Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37, where the court held that the District Court, in sentencing in workplace safety matters, ought to follow previous New South Wales Industrial Court decisions setting out sentencing guidelines. Scope of Act 7.40 The WHSA is not restricted to specific workplaces or to specific industries. While there is still scope for additional legislation dealing with the needs of particular types of work, in general there is a clear expectation that any such legislation will be in addition to, and not in substitution for, the general WHSA provisions.55 [page 390] As outlined in the general duties area (see 7.30), the Act aims to protect both employees and those that the common law would regard as ‘independent contractors’. In doing so it does not break radically new ground: since the 1980s, WHS legislation under the Robens model has provided protection for a wide range of workplace participants.56 However, the extensive definition of the word ‘worker’ in s 7, and the wide responsibilities for the safety of

‘other persons’ (for example, in s 19(2)) or ‘any person’ (for example, s 20(2)), make it clear that virtually anyone in any way participating in the workforce will be provided with protection under the provisions of the WHSA. 7.41 The common situations outlined below provide an illustration of these provisions, while also noting that some of the coverage is not immediately obvious. Under s 19(1)(a), a ‘person conducting a business or undertaking’ (PCBU) must look out for the health and safety of ‘workers engaged … by the person’, while the workers are at work. Section 7(1)(a) states that ‘worker’ includes an employee. However, there is no definition in the legislation of what it means to be ‘at work’, in contrast to (for example) the former OHSA 2000 s 6. This raises an interesting issue to be discussed below: see 7.42. Nevertheless, it is clear that an employee at their normal place of work, while doing their job, would be protected by the legislation. Does the Act cover the situation where an employee has been ‘lent out’ to do work at a place other than their normal workplace? Since the obligation under s 19 is placed on the PCBU and extends to workers ‘caused to be engaged’ by that person, and workers ‘whose activities in carrying out work are influenced or directed by the person’, it seems clear that someone in charge of a workplace where employees of another employer had been asked to work, would be obliged to provide relevant protection.57 What about the situation, not of a ‘one-off’ loan of a worker, but of a ‘labour hire’ firm that provides temporary workers on an ongoing basis? Again, whether or not they are ‘employees’ of the labour hire firm, such workers would receive protection under s 19.58 Johnstone’s discussion of ‘labour hire’ agencies under the old laws is very helpful [page 391]

in understanding this area, as is that of Catanzariti: see the Further Reading list at the end of this chapter. 7.42 Will an employee physically at the workplace, outside working hours, be regarded as ‘at work’? The wording of the concluding part of s 19(1), ‘while the workers are at work’, could be interpreted as meaning both a ‘temporal’ and a ‘geographic’ connection with the workplace. Decisions on this issue under former legislation favoured a similar phrase having both a temporal and a ‘purposive’ meaning. In Rech v FM Hire Pty Ltd (1998) 83 IR 293; [1998] NSWIRComm 463, Hungerford J held that a forklift driver who had turned up to work early, and seemed to have been using the forklift for his own purposes, was not relevantly ‘at work’. As a result, his employer was held not to be liable under OHSA 1983 s 15. In so finding, his Honour followed the previous decision of Fisher CJ in Clarke v W L Meinhardt and Partners Pty Ltd (Matter Nos 1212 & 1213 of 1990, 30 June 1992, unreported). Johnstone criticises the decision in Rech, and notes that it is arguably contrary to the United Kingdom decision of Bolton Metropolitan Borough Council v Malrod Insulations Ltd [1993] ICR 358.59 In that case an inspector identified a defective piece of machinery before it had been used in the workplace. The accused company maintained that as a result there had been no danger to anyone ‘at work’. In fact, HSWA 1974 provided even stronger grounds for a ‘temporal’ link than OHSA 1983, because it defined an employee being ‘at work’ in the following way: 52 Meaning of work and at work (1) … (b) an employee is at work throughout the time when he is in the course of his employment, but not otherwise.

Nevertheless, the United Kingdom appeal court found that an offence had been committed in the circumstances.

With respect, the decision of the United Kingdom court seems preferable from both the point of view of policy and the wording of the legislation. It seems strange that the fortuitous circumstance that the injured person in the Rech case happened to have arrived before working hours should relieve the employer of the obligation to ensure that the system of work used was safe. However, that was the result of the former OHSA 1983. 7.43 Is the situation any different under WHSA s 19? Arguably not. In the phrase ‘while the workers are at work’, the word ‘while’ could be interpreted to mean that the obligation only arises after a worker has arrived at their usual place of work. On that [page 392] basis a defective machine, if identified before the start of normal working hours, would not lead to a breach of s 19(1). Are there other provisions of the legislation that would deal with this situation? It is tempting to refer to s 19(2), which requires a PCBU to provide for the ‘health and safety of other persons’ who may be ‘put at risk from work carried out as part of the conduct of the business or undertaking’. But can a person who is a ‘worker’ when at work in s 19(1), really be classified as an ‘other person’ in s 19(2)? This is a difficult question of statutory interpretation, discussed in more detail at 7.52 below. A court might take the view that s 19(1) was the provision dealing with ‘workers’ and that s 19(2) was only designed to be used for people who are not ‘workers’. Yet that would seem to create the absurd result that if, for example, the employer dug a large hole overnight, with no adequate signage, near the work entrance, it could be prosecuted if a member of the public fell into the hole in the morning, but not if a worker fell into it when arriving early to work (that is, if the ‘temporal’ limitation on the operation of s 19(1) were accepted).

7.44 The particular problem here may be resolved by referring to s 29 — a sort of ‘catch-all’ provision at the end of Pt 2 Div 4 — which provides that ‘a person at a workplace (whether or not the person has another duty under this Part)’ must ‘(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons’. Arguably, even if the employer had given instructions for the hole digging to take place from their home office, that would be ‘at a workplace’, since s 8(1) defines that as ‘a place where work is carried out for a business or undertaking’. However, it might still be preferable if s 19(1) were not so tightly restricted to its obligations only applying ‘while’ the worker is at work. It should also be noted, however, that other provisions of the Act may provide a better solution. To continue with the holedigging example, s 20 provides that a person with management or control of a workplace must see to the safety of the workplace, including ‘the means of entering and exiting the workplace’, so that would seem to cover the example even if a worker arrived early. 7.45 Does the WHSA provide protection to someone who works from home for themselves? This seems to be an odd question, but s 19(5) provides that a ‘self-employed person’ is to provide for their own safety while at work. To be frank, one may query the public policy behind such an apparently paternalistic provision. Still, there may be wider implications of an injury caused to a person by themselves, including presumably a claim on an insurance policy. Of course, there is no doubt that a self-employed person has a duty to look out for the safety of other persons. This will be the result of s 19(2), to be discussed below: see 7.47. Specific duties owed by PCBUs 7.46 Beyond the ‘primary’ duty to workers noted above, s 19 and ss 20–26 spell out a number of other duties of PCBUs. Space does not permit a complete explanation of these duties; however,

following are a few comments on them, and some comparison with the duties owed under the previous laws in New South Wales and elsewhere. [page 393] Duties owed to ‘other persons’: s 19(2) 7.47 Under s 19(2), PCBUs are obliged to ensure so far as it is reasonably practicable ‘that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking’.60 We have already noted previously (see 7.43) that there is some ambiguity in the phrase ‘other persons’. Does it mean, in the context of s 19, ‘persons other than workers described in s 19(1)’? Or does it simply mean ‘persons other than the PCBU’? In context, it seems fairly clear that the phrase probably refers to the first option, to ‘non-workers’; this was certainly the way that the previous legislation was structured. Part 2 Div 1 of the former OHSA 2000 imposed a range of duties on a variety of persons. Two provisions of the OHSA 2000 dealt with the situation where a person who was not an employee was put at risk in a workplace. They were s 8(2), concerning obligations of employers, and s 9, concerning obligations of ‘selfemployed persons’. The people who were protected by the provisions obviously included independent contractors in the workplace, but also included customers and other members of the public who are on the premises for one reason or another. Indeed, both provisions were so broadly worded that they covered trespassers as well.61 The duty in former OHSA 2000 ss 8(2) and 9 was to ‘ensure’ the safety of non-employees. Again, under that legislation, this was clearly an absolute obligation, subject only to the explicit defences in s 28. The duty was breached not only where it was shown that damage had occurred, but also where there was simply a ‘risk’ of

damage. In a United Kingdom case under the related legislation, HSWA 1974, it was held that a museum had exposed visitors to a risk where the air-conditioning tower was shown to be a source of legionnaires disease, even though it was not proven that anyone had actually contracted the disease: see R v Board of Trustees of the Science Museum [1993] 3 All ER 853. It seems fairly clear that should a similar case arise under the WHSA, there would also be an offence based on risk. Section 19(2) similarly requires that ‘the health and safety of other persons [be] not put at risk’. It does not require actual harm. 7.48 In Kirkby v A & MI Hanson Pty Ltd (1994) 55 IR 40, decided under the OHSA 1983, Hungerford J took a similar approach. The facts of the case, briefly, were that Hanson was carrying out building work that involved extensions to a hostel. It had erected a number of freestanding brick walls that were braced by timber. During a work break a subcontractor was taking a ‘smoko’ next to one of the walls when a strong gust of wind blew the wall down on him, resulting in his death. On the facts his Honour found that braced walls had previously been known to collapse; there was a failure to warn the subcontractor of the danger that a braced wall might fall down; and the timber brace in fact contained a knot in the wood which [page 394] reduced its strength, which would have been obvious if the brace had been inspected beforehand. The company was convicted.62 7.49 The obligation under former OHSA 2000 s 9 was imposed upon self-employed people; therefore, it applied to an independent contractor at his or her ‘place of work’, which was presumably where they happened to be working at the time. However, the scope of this provision (as with former OHSA 1983

s 16(1)) was criticised due to the limitation imposed by the words ‘while they are at the employer’s/person’s place of work’.63 It is arguable that this meant that a risk to safety created at a workplace was not caught by this provision if the risk only eventuated outside the workplace. On this view, to take an extreme example, a member of the public injured by a brick falling from a building would not be ‘at the place of work’ and hence no offence under OHSA 2000 s 8(2) or s 9 would have been committed. However, no such limitation applies under WHSA s 19(2), which simply requires that the risk to another person arise ‘from work carried out as part of the conduct of the business or undertaking’. The word ‘from’ seems to carry the widest possible causal connection, and would clearly cover a risk that eventuated ‘offsite’ so long as it was connected to the conduct of the business or undertaking.64 This will probably also resolve another difficult issue which arose under the former Act: whether, once an employer or selfemployed person has left a workplace, they can still be prosecuted for an incident that arises later as a result of what they did, or did not, do.65 Under WHSA s 19(2) it seems that such a prosecution would be possible, so long as the ‘causal chain’ between the business or undertaking and the harm was not too long. 7.50 Note that under the former OHSA 2000, failure to maintain premises in a safe condition also attracted s 8(2) or s 9 liability, if a non-employee was injured. The English case of R v Mara (1987) 1 WLR 87 is good authority for the fact that even outside working hours a contractor may be injured ‘as a result of’ the undertaking of the defendant, if the premises are left in an unsafe state. The English Court of Appeal decision in R v Associated Octel Pty Ltd [1995] ICR 281 (affirmed on appeal to the House of Lords [1996] 4 All ER 846) is another good

[page 395] illustration of this. A contractor was injured when cleaning a tank in a chemical factory while the factory was closed for maintenance. The Court of Appeal and the House of Lords both approved the decision in Mara, that the ‘conduct of the undertaking’ of the factory involved essential cleaning and repairs as well as actual production, and as a result the factory owners were guilty of an offence under the English equivalent of OHSA 2000 s 8(2). Delivering the judgment of the House of Lords, Lord Hoffman said (at 851): It is part of the conduct of the undertaking, not merely to clean the factory, but also to ‘have the factory cleaned’ by contractors. The employer must take reasonably practical steps to avoid risks to the contractors’ servants which arise, not merely from the physical state of the premises … but also from the inadequacy of the arrangements which the employer makes with the contractors for how they will do the work.

Another example of a prosecution involving non-employees is R v The Mayor, Councillors and Citizens of the City of Dandenong and Noel Bailey (County Court of Vic, Stott J, 8 November 1991, unreported) the facts of which are set out in an appeal from the decision on a technical point, Director of Public Prosecutions (Ref No 1 of 1992) [1992] 2 VR 405. There the council operated a swimming pool and approved the construction of a wall to which seats were attached. While a group of school children was sitting watching a school swimming carnival the wall collapsed, injuring a number of children and leaving one a paraplegic. The council and the city engineer were prosecuted under the former Occupational Health and Safety Act 1985 (Vic) s 22. Today a prosecution under WHSA s 19(2) would seem likely. 7.51 For a case involving the prosecution of a self-employed person under the former OHSA 1983 s 16(2), see WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78 (liability) and further proceedings on sentencing

at WorkCover Authority of New South Wales (Inspector Clark) v Jabboury (No 2) [2002] NSWIRComm 70. A case in the mining area is Morrison v Hams [2002] NSWIRComm 216. Mr Hams ran a small gypsum mine. One of the drivers who came to load his truck brought his two-year-old son with him one day, and the boy was run over by another truck and killed. Mr Hams was prosecuted on the basis that he had no system for managing the whereabouts of people on the site, and allowed visitors such as the boy to be present when loading operations were going on. In WorkCover Authority of New South Wales (Inspector Mayell) v Claude Van Den Bruggen t/as Dolphin Antenna Service [2007] NSWIRComm 193, there was a successful prosecution of Mr Van Den Bruggen, a self-employed television antenna installer, when someone assisting him one day was electrocuted in circumstances where a proper risk assessment of the job had not been made. In WorkCover Authority of New South Wales v Eastern Basin Pty Ltd [2015] NSWDC 92, there was an unsuccessful prosecution under s 19(2) against Gauchi Pack assemblers, Eastern Basin. These Gauchi Packs were a stack of aluminium ingots that collapsed, crushed and killed the stevedore unloading them. The stevedore, acting against the policy of his employer, Newcastle Stevedores, adjusted the dunnage, the planks of wood that kept the aluminium in place, by standing in a dangerous position: at [37]–[40]. WorkCover (as it was then known) pleaded that these Gauchi Packs could have been [page 396] strapped and secured better. The judge found, however, that it was not proven beyond reasonable doubt that additional strapping would have reduced or eliminated the risk: at [78]–[92]. His Honour also found that the defendant company was entitled to rely on Newcastle Stevedores’ skill and expertise to ensure that the Gauchi Packs were delivered to the wharf and safely loaded, and

that none of the measures advocated for by the prosecution was reasonably practicable: at [140]–[146]. 7.52 In Essential Energy v WorkCover Authority of New South Wales [2012] NSWIRComm 83 (Essential Energy), the court considered questions of how s 19(2) operates in regards to ‘other persons’. Essential Energy (EE) were an authorised electricity provider for New South Wales, and they were the subject of an ‘improvement notice’ under WHSA s 191 in relation to a risk created to someone. EE had authorised a company called Ronin Pty Ltd to do commercial electrical connection work and to have access to part of the network located between two existing power poles (called poles 149 and 150 in the case) to install an additional connection. The authority signed by EE regarded the line between the poles as the ‘work area’, which EE undertook to de-energise while work was taking place. But one of Ronin’s employees, Mr Sweeney, climbed pole 149 to disentangle some wires and received an electric shock, as two wires coming into pole 149 from the other side had not been de-energised. One could reasonably say that it was part of EE’s business to ‘give permission to access the network’, and that Mr Sweeney was put at risk by the way that permission was given (if EE did not have clear procedures indicating where the power was present or not in adjacent areas). One issue in this case was whether Mr Sweeney was a worker for EE. He was clearly not their employee but WorkCover argued that he fell within s 7(1)(c) as an employee of a contractor. The judge, Backman J, ruled in these interlocutory proceedings that this was arguable (see [23]) because he was a ‘worker’ and also under s 19(1) he was ‘at work in [EE’s] business or undertaking’. With respect, this seems doubtful. It seems more plausible to say that Mr Sweeney was at work in his own employer’s business, which required a permit from EE, but was not really EE’s business as such. There is an ambiguity about the operation of s 19(2), as noted above. In theory, ‘other persons’ could mean ‘persons other than those referred to in s 19(1)’. But the previous ‘person’ referred to in

s 19(2) is the PCBU, and so the word may on the surface mean ‘other than the PCBU’. A duty owed by the PCBU to everyone other than themselves, however, would render s 19(1), with its careful definition of persons to whom a duty is owed, completely redundant. That would not be altogether irrational, as this is what is suggested by Tooma.66 One could try to argue that the subs (1) duty to ‘ensure health and safety’ is much stricter than the subs (2) duty to ‘ensure … that health and safety is not put at risk’. This does not really seem likely. Based on the historical precedent of provisions like subs (2), as previously noted, it would make more sense if it were referring to a different group of persons being protected than those under subs (1). To avoid this result, it seems that the ‘other persons’ referred to in s 19(2) must be ‘persons other than those categories of persons mentioned in s 19(1)’, including [page 397] the fact that they were ‘at work in the business or undertaking’. In other words, the legislation can only work if the two classes of persons described in s 19(1) and (2) do not overlap, but also together constitute the complete universe of all persons. To illustrate: take the facts of Essential Energy. S, the injured worker, was engaged by the contractor Ronin to assist in extending a power line. EE gave permission for the power line to be accessed, but the work was a project of Ronin’s. While S was an ‘employee of a contractor’, and hence a ‘worker’ under s 7(1)(b), when he was injured he was not ‘at work in the business or undertaking’ of EE, as would be required for s 19(1) to be satisfied. Instead, his injury arose from the way that EE did ‘work carried out as part of the conduct of [their] business or undertaking’, that is, the decision to grant access to the power pole. Hence the logical

provision under which a prosecution should be brought is s 19(2). In that context S was an ‘other person’ whose safety was put at risk. Examples of how s 19 duties may be breached 7.53 WHSA s 19(3) lists a number of ways in which the general duties to workers and others may be breached.67 Many of these are drawn from categories developed in the law of negligence, and so common law cases may provide a good example of how the provisions are to be interpreted. Similar lists of examples were provided in most of the former state legislation (such as in OHSA 2000 s 8(1)). 19 Primary duty of care … (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking

[page 398]

7.54 In regard to systems of work, under s 19(3)(c),68 it has long been clear in relation to the common law obligation that it is not enough to set down a system in theory; it must be a workable system, which is enforced. The principles are well illustrated by Schultz v Tamworth City Council (1995) 58 IR 221. In that case the injured worker was employed at the Tamworth City Abattoir; he was working on the ‘hide puller,’ which carries out the job you would expect from its name. The process involved a long chain that was wrapped around a drum and was then pulled out; the chain retracted quickly onto the drum after each animal had been processed and before the next had arrived for processing. The practice had developed of workers wrapping the chain around their hands between animals, rather than letting it completely retract. On the day of the accident the worker’s hand was amputated when it was caught in the drum as the chain retracted. Evidence was given that, although this was not the officially approved technique, in fact it had been used for many years and was well known to management. Fisher CJ referred to the English case of Barcock v Brighton Corporation [1949] 1 KB 339, where Hilbery J said (at 343): A system of work is not devised by telling a man to read the regulations and not to break them. … But even if it could be said that they had done so, by a long usage that paper system had, in practice, been utterly disregarded. It is no use for a master to say in court ‘I discharged my common law duty because I put down on paper a safe system and put it into the hands of the man’ if for years they showed him by the action of those who were his superiors that the work was not done in that way, need not be done in that way; and could be done in another way which involved danger.

As Fisher CJ went on to say (at 229): The obligation to provide and maintain such a system is always upon the employer and the system that is actually worked is the system that is provided in the relevant sense by the employer.

Similar issues arose in Tyler v Sydney Electricity (1993) 47 IR 1, where the worker was electrocuted while using a jackhammer on

concrete surrounding a high voltage electrical cable in the Sydney CBD. Evidence was given that, although his supervisor had shown the deceased an approved technique for doing the job, he was not using that technique. 7.55 Henry Walker Eltin Contracting Pty Ltd v Briggs [2002] WASCA 53 was another case where there was a failure of the ‘system of work’. An accident happened at a mine face when a man working below some equipment used to put charges into the rock face was killed, when the machine dislodged a large chunk of rock that fell on him. The claim was that by failing to implement a system whereby the machine did not operate near the rock face while workers were standing below, the company had failed to provide a safe system of work. The Full Bench of the Western Australian Supreme Court agreed with the magistrate who had entered a conviction. [page 399] In R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 at [48], the court also commented on the need to ensure that ‘systems’ work in reality by providing appropriate supervision: As this case illustrates, the formal adoption of a satisfactory safety management system will not have the beneficial effects intended unless it is accompanied by the employer’s active implementation of the system in the workplace. The employer’s duty will not be discharged simply by creating a safe system of work. The obligation requires the employer to ensure ‘that procedures and instructions are actively and positively complied with by employees’. Not only must employees be appropriately trained but there must be ongoing supervision and compliance audits, to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer. [footnotes omitted]

7.56 It should be noted that a ‘system of work’ failure may extend, not only to risks created by the ‘internal’ workplace factors, but also in some cases to a failure to guard against the risk

of external harm by robbery or other violence. Tooma makes the point this way: Security risk management is arguably implied in the scope of the general safety duties. The employer’s duty to ensure the health, safety and welfare of their employees would extend to ensuring that employees are not exposed to security risks.69

One example of this that Tooma cites is Inspector Nguyen v Western Sydney Area Health Service [2003] NSWIRComm 268 where employees were subject to a violent attack in an unlit car park. Another example is Cahill v New South Wales (Dept of Community Services) (No 3),70 where the Department of Community Services was prosecuted in relation to an incident where a violent client attacked one of the staff (her propensity for violence being well known to managers).71 7.57 The area of use and storage of plant and substances is covered by WHSA s 19(3)(d).72 The legislation now adds ‘structures’ to the matters dealt with under the former Acts. There are also regulations in force in relation to hazardous substances, now under WHSR Ch 7, which will not only provide for separate penalties, but will also no doubt ground an offence under s 19 which is particularised by s 19(3)(d). The operation of the former law can be seen in Dept of Mineral Resources NSW v Blue Circle Southern Cement Ltd (Ind Ct NSW, Fisher CJ, No CT 1242/1994, 30 August 1995, unreported), where an employee was killed when a bulldozer he was operating rolled over. The dozer was not fitted with a roll bar, as required by regulations made under the Mines Inspection Act 1901 (NSW). This breach of the regulations provided strong evidence for a prosecution for breach of OHSA 1983 s 15. [page 400] A failure of ‘safe plant’ can be seen in (Re Boles) WorkCover

Authority of New South Wales (Inspector Pile) v Fletcher International Exports Pty Ltd [2014] NSWDC 181, where a worker had his hand crushed by a conveyor belt. One feature of the case was that an ‘emergency stop’ button which was designed to allow the belt to be shut off in just such a situation was out of reach, a feature of the machine that had actually been identified in a previous incident. A fine of $200,000 was appropriate, though discounted somewhat due to an early guilty plea. In Safe Work New South Wales v Waycon Bulk Pty Ltd [2015] NSWDC 254 a wood splitting machine, which was designed only to be operated by two buttons being pressed (to ensure that an employee did not put their hand under the blade), had been modified to allow ‘one-handed’ operation to protect workers from the annoyance of material being ejected. But the worker in question put his hand under the blade to clear a blockage and accidentally pressed against the one button, causing the machine to take off his hand. As the judge pointed out (at [39]): ‘The modification of the machine created a risk far more serious than the alternative risk it was intended to address.’ The company received a substantial fine of $187,500. 7.58 The area of proper training and supervision is mentioned in s 19(3)(f) of the current Act.73 Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 provides a good example of a prosecution based on the failure to provide proper supervision. In that case, unskilled workers were left to their own devices to carry out a dangerous procedure on the weekend, and one was killed. Another example is to be found in WorkCover Authority of New South Wales v R (Ind Ct NSW, Peterson J, No CT 1178/1993, 21 April 1995, unreported), involving the Department of Conservation and Land Management. Two workers were using a drilling rig to install a device to monitor the water table level. One was killed when he became entangled in the auger while shovelling away excess soil. The court found a clear breach of the Act in that there was no

formal training or instruction given to drillers’ assistants, nor any written instructions for safe operation of the rig. Another example where a failure of training led to liability was a series of cases that culminated in the decision in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) [2002] NSWIRComm 1. That case involved a prosecution of the police force in relation to the shooting death of two constables in Crescent Head. The police force was fined for failure to provide proper training to the officers in emergency response techniques when dealing with someone confronting them with a rifle. In a case with some similarities, South Sydney Junior Rugby League Club Ltd v WorkCover Authority of New South Wales (Inspector Bestre) [2005] NSWIRComm 116, a club employee was put at risk during an armed holdup of the club. The club was convicted of an offence, under OHSA 2000 s 8(1), one element of which was failure to provide proper training to the employee in dealing with the situation: at [3]. (Other elements of the offence related to failing to provide a safe system of work where such holdups were not only foreseeable but had previously occurred.) In Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd [2001] NSWIRComm 130, a roof collapse in an underground mine led to the death [page 401] of a worker, following a breach of the ‘roof support rules’ which had been laid down by the company. (The worker was killed in an area where the distance from the last permanent roof support was some 22 metres, whereas the rules required no more than nine metres.) One aspect of the successful prosecution of the company was its failure to ensure that employees were complying with the support rules.

In WorkCover Authority of New South Wales v Construere Projects Pty Ltd [2014] NSWDC 310, a contractor had been given the job of installing an air-conditioning unit. However, while he had been working for some years as an electrical contractor, in fact he was not qualified to do so under the various regulations governing electrical work. It seemed that he had made a fairly obvious mistake and was tragically electrocuted, while working for a firm which was run by his brother-in-law. The judge, Kearns SC DCJ, found the firm guilty and fined them $50,000. Lack of supervision seems to have contributed to the incident. An example of a lack of proper safety training for an injured apprentice employee under the WHSA can be found in WorkCover Authority of New South Wales v El-Hayek [2014] NSWDC 362 and WorkCover Authority of New South Wales v Plumbwizard Pty Ltd and Georges [2015] NSWDC 266, both cases arising out of the same incident. In Safe Work New South Wales v Austral Hydroponics Pty Ltd; Safe Work New South Wales v Eang Lam [2015] NSWDC 295 a worker fell from the roof of a greenhouse and was seriously injured, having been given no instructions on how to work at heights nor on any fall protection. The company received a fine of $150,000. An example of a s 19(1) or s 19(2) prosecution was that against CH Stop n Save Pty Ltd, where the defendant was convicted of both offences and fined $85,000 on 17 August 2015.74 Workers and members of the public were put at risk of serious injury when liquid petroleum gas (LPG), which was being decanted at the defendant’s petrol station, ignited and caused a significant fire. 7.59 An obligation which was not dealt with directly under the previous Acts is that imposed by s 19(3)(g), which requires appropriate health monitoring. Presumably the extent of such monitoring would depend in part on whether previous experience in the particular kind of work under consideration had revealed a serious risk.

7.60 Having completed our overview of the primary WHSA duty under s 19, we will turn to consider other duties in the next chapter. ______________________________

Answer to Stop and Think question 7.1 How the WHSA reflects the Robens etc reports. Worker Participation — see Pt 5. General Duty — see Pt 2. Wide Coverage — the Act is generally unrestricted as to workplace or type of industry. Room for ‘Codes of Practice’ — see Pt 14 Div 2 (ss 274–275). [page 402]

Further Reading Some of these general works will be relevant to all of Chapters 7–9 by way of background: L Bluff, N Gunningham and R Johnstone, OHS Regulation in a Changing World of Work, Federation Press, Annandale, 2004. P Bohle and M Quinlan, Managing Occupational Health and Safety: A Multidisciplinary Approach, 2nd ed, Macmillan, South Yarra, 2000, esp Ch 7. A Brooks, Occupational Health and Safety Law in Australia, 4th ed, CCH, North Ryde, 1993, esp Chs 5 and 9. J Catanzariti, ‘Health and Safety Duties Owed by Labour Hire Agencies’ (1999) 37(8) Law Society Jnl 33–4.

W B Creighton and P Rozen, Occupational Health and Safety Law in Victoria, 2nd ed, Federation Press, Sydney, 1997 (for Victoria). C E Dunn, Annotated Australian Work Health and Safety Legislation, CCH Australia, North Ryde, 2012. C E Dunn and S Thakorlal, Australian Master Work Health and Safety Guide, 2nd ed, CCH Australia, North Ryde, 2014. P Forlin, ‘Australian Health and Safety Legislation: A Comparative Review’ (1995) Feb Qld Law Society Jnl 19– 29. N Foster, ‘General Risks or Specific Measures? The High Court Decision in Kirk’ (2010) 23(3) Aust Jnl of Labour Law 230–9. N Foster, ‘Occupational Health and Safety Prosecutions: John Holland Pty Ltd v Industrial Court of NSW’ (2011) 16(10) Employment Law Bulletin 142–5. N Foster et al, ‘Principles of OHS Law’ in Safety Institute of Australia, The Core Body of Knowledge for Generalist OHS Professionals, Tullamarine, Vic, 2014, available at . N Gunningham, Safeguarding the Worker: Job Hazards and the Role of the Law, Law Book Co, Sydney, 1984, esp Ch 4 on historical background. N Gunningham, ‘Integrating Management Systems and Occupational Health and Safety Regulation’ (1999) 26 Jnl of Law and Society 192–214. N Gunningham and R Johnstone, Regulating Workplace Safety: System and Sanctions, OUP, Oxford, 1999. R Johnstone, ‘Occupational Health and Safety Prosecutions in Victoria: An Historical Study’ (2000) 13 Aust Jnl of Labour Law 113–42.

R

Johnstone, ‘Paradigm Crossed? The Statutory Occupational Health and Safety Obligations of the Business Undertaking’ (1999) 12 Aust Jnl Labour Law 73–112. R Johnstone, E Bluff and A Clayton, Workplace Health and Safety Law and Policy, 3rd ed, Lawbook Co, Pyrmont, 2012. J Kennedy, Work Health and Safety: What You Need to Know, LexisNexis Butterworths, Australia, 2012. F Marks, D Dinnen and L Fieldus, The New Work Health and Safety Legislation: A Practical Guide, Federation Press, Sydney, 2013. [page 403] K Richardson, Work Health and Safety, Lawbook Co (Nutshell), Pyrmont, 2014. J W Shaw and A Searle, ‘The Occupational Health and Safety Act 1983 (NSW): Challenges for the Future’ (1995) 37(1) Jnl of Industrial Relations 72–83. M Tooma, Safety, Security, Health and Environment Law, 2nd ed, Federation Press, Sydney, 2011. M Tooma, Tooma’s Annotated Work Health and Safety Act 2011, Lawbook Co, Pyrmont, 2012.

1.

The abbreviation WHSA will be used to refer both to the agreed ‘model’ for legislation and to the particular Act passed by the New South Wales Parliament, unless it becomes necessary to distinguish the two, in which case WHSA NSW will be used.

2. 3.

We will deal with this area in Chapter 11. N Gunningham, Safeguarding the Worker: Job Hazards and the Role of the Law, Law Book Co, Sydney, 1984, Ch 4.

4.

5.

6. 7.

8.

9.

10.

11. 12.

See also R Johnstone, E Bluff and A Clayton, Work Health and Safety Law and Policy, 3rd ed, Lawbook Co, Pyrmont, 2012, Ch 2. There is also an interesting historical review of the development of United Kingdom factories legislation in M Tooma, Safety, Security, Health and Environment Law, 2nd ed, Federation Press, Sydney, 2011, pp 3–10. Anthony Ashley Cooper, who later became the 7th Earl of Shaftesbury in 1851, was at the time in the House of Commons, having won an election to a seat in his own right. He bore the ‘courtesy title’ of Lord Ashley prior to his father (the 6th Earl’s) death. For an interesting account of his life and the key role he played in factory law reform, see R Turnbull, Shaftesbury: The Great Reformer, Lion Hudson, Oxford, 2010. F Engels, The Condition of the Working Class in England in 1844, George Allen & Unwin, London, 1943 (reprint of March 1892 edition), p 164. For further details of the case see AWB Simpson, Leading Cases in the Common Law, Clarendon, Oxford, 1995, pp 127–8, who records that Lord Ashley himself took a civil action for damages on behalf of Cotterell and that she recovered substantial damages and costs against Stock. It is sad to note that accidents like those of Ms Cotterell have not completely disappeared: in Inspector Stuart Larkin v South Pacific Seeds Pty Ltd [2006] NSWIRComm 247, a female agricultural worker was working with a machine with a rotating spindle when her clothes were caught and she was jammed up against the spindle, thankfully only suffering severe bruising. The court commented (at [17]): ‘The risk that her clothing would be caught by the machine materialised, leading to various injuries, particularly to her neck. This type of clothing entanglement was submitted to be “almost the classic raison d’etre for the development of factory safety legislation in 19th century England”.’ Mentioned in the WorkCover Discussion Paper of June 2005 prepared for the Review of the Occupational Health and Safety Act 2000 conducted between June and August 2005, p 19. That Act remained for a while in reduced form as the Shops and Industries Act 1962 (NSW), as the provisions dealing with safety in ‘factories’ were repealed and replaced by provisions in the Occupational Health and Safety Regulation 2001 (NSW). The Act was finally repealed in 2008 by the Shop Trading Act 2008 (NSW) s 24. For more detail see Johnstone et al, note 4 above, [2.175]–[2.220] and A Brooks, Occupational Health and Safety Law in Australia, 4th ed, CCH, North Ryde, 1993, Ch 5. There is also a good summary of the Report’s recommendations in Vol 2 of the Industry Commission Report, Work, Health and Safety: Inquiry into Occupational Health and Safety (2 Vols), Report No 47, AGPS, Canberra, 1995, Appendix L, pp 344–7. For a summary of critiques of the Robens Report offered by Adrian Brooks, see the Industry Commission Report Vol 2, note 10 above, pp 346–7. The ‘etc’ is, as odd as it seems, a part of the official ‘short title’, and stands for: ‘Control of Dangerous Substances and Certain Emissions into the Atmosphere’, which is the remainder of the title of Pt I. In Australia these matters tend to be dealt with in separate anti-pollution legislation, rather than in the workplace safety legislation. See Brooks, note 10 above, Ch 6, for an overview of the United

Kingdom Act. 13.

14. 15. 16.

See the discussion of the difference between ‘persuasive’ and ‘binding’ decisions in Chapter 1 at 1.69. The United Kingdom Act was referred to on a number of occasions in the Industrial Court when interpreting the previous New South Wales legislation; for example, see Cahill v New South Wales (Dept of Community Services) (No 3) [2008] NSWIRComm 123 at [189]–[190], [229] ff. Brooks, note 10 above, analyses the report in Ch 9, as well as providing criticism. Most of these Acts had previous versions that were initially introduced in the 1980s. Note that at the time of writing Victoria has not yet adopted the ‘harmonised’ WHSA.

17. 18.

See Hansard, NSW Legislative Assembly, 26 May 2000, p 5936. See Chapter 1 at 1.27.

19.

See National Review into Model Occupational Health and Safety Laws, First Report (to the Workplace Relations Ministers Council) (October 2008); Second Report (January 2009) available, (accessed 17 March 2012). For detailed comment on the Reports see R Johnstone, ‘Harmonising Occupational Health and Safety regulation in Australia: The First Review of the National OHS Review’ (2008) 1 Journal of Applied Law and Policy 35–58 and a number of working papers from the National Research Centre for OHS Regulation available at . South Australia’s legislation was passed on 1 November 2012, and contained a number of adjustments to the ‘model’ made in the process of getting it through their parliament.

20.

21. 22.

Qld 2011 SL No. 239. However, one of the main complaints about the previous New South Wales provisions allowing union prosecution — that unions were entitled to a share of the fine that was imposed — has been removed by providing under s 230(6) that the provisions of the Fines Act 1996 (NSW) normally allowing this do not apply to these prosecutions.

23. 24.

See WHSA s 12(4)–(7) for these matters. See for a list of licensees.

25.

See . See .

26. 27. 28.

See . See Gunningham and Johnstone (1999), Gunningham (1999); see Bluff et al (2004) Ch 1 noted on the Further Reading list at the end of this chapter.

29.

Drafting practice in New South Wales is to refer to a set of regulations as a ‘Regulation’ in the singular. Individual provisions are referred to as ‘clauses’. The previous Occupational Health and Safety Regulation 2001 (NSW) (OHSR 2001) was repealed on commencement of the WHSA NSW by virtue of s 276C of that Act. Presumably the ‘health and safety of … workplaces’ is shorthand for ‘the health

30.

and safety of people, other than workers, who are present at the workplaces’. The wellbeing of factories and offices per se is not a traditional interest of the law. 31.

32.

33.

34.

35.

36.

37. 38. 39.

40.

41.

The name of the New South Wales WHS regulator has been changed from ‘WorkCover’ to ‘SafeWork NSW’ — see Sch 2 cl 1(2) of the WHS Act 2011, as amended by the State Insurance and Care Governance Act 2015 (NSW). For a helpful review of the previous Australian experience, see R Johnstone and C Parker, ‘Enforceable Undertakings in Action — Report of a Roundtable Discussion with Australian Regulators’, National Research Centre for OHS Regulation, WP 71, February 2010. It is not apparent what the impetus for these provisions was. In addition, there seems some ambiguity in s 254 as to which provisions of the legislation may be dealt with in this way. Under s 254(1) the only breaches of the head legislation that are made subject to this regime are found in Pt 7. But s 254(2) more broadly suggests that any ‘sub-regulation’ may provide that it is a ‘WHS civil penalty provision’. It is not clear whether there is an intention to draft regulations in other areas (outside those dealing with entry permits) that will be classified as ‘civil penalty’ provisions. So far none appear in the WHSR. The impact of s 267 on the tort action for breach of statutory duty was considered in some detail in Chapter 6 at 6.12. It was noted there that s 267(c) preserves the possibility of civil actions based on the Regulations. See also references to the ‘objects section’ of previous WHS legislation in the High Court in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 at [142]; and in the Industrial Court of New South Wales in Cahill v New South Wales (Dept of Community Services) (No 3) [2008] NSWIRComm 123 at [208]–[209]; Morrison v Milner [2009] NSWIRComm 57 at [96]; Inspector James v Ryan [2009] NSWIRComm 215 at [114]; Inspector Ochoa v East Sun Building Pty Ltd & Gao [2010] NSWIRComm 91 at [39] (where a publicity order was made for a newspaper advertisement to be published drawing attention to the dangers on construction sites where workers did not speak English, the advertisement to be in a number of different languages). See, for example, M Tooma, ‘New Work Safety Laws a Threat to Business: OH & S Legislation Encroaches upon Traditional Areas of Civil Liability’, The Australian, 10 February 2012. See Essential Energy v WorkCover Authority of New South Wales [2012] NSWIRComm 83 at [47]. Oddly, though, it seems acceptable to use the word ‘dispute’ in Pt 7 Div 6 (ss 141 ff) in relation to entry into the workplace by union officials. The same person may satisfy a number of descriptions in this column at the same time; see s 15: ‘A person can have more than one duty by virtue of being in more than one class of duty holder.’ See also an excellent review of the issues arising in this area in L Bluff, ‘PCBU, Officer, Worker or What? — Duty Holders in the National Model Work Health and Safety Legislation’ (2011) 10(2) Regulation at Work 16–25. See Rec 3(b) of the First Report of the National OHS Review (2008): see note 19 above. Occasional reference will be made in the footnotes to the source of provisions of

42. 43.

44. 45.

46.

47.

48. 49. 50. 51.

52.

53.

the WHSA in the Reports. But even where no explicit link is made here, almost every section of the Act will have been dealt with in some way in the Reports, which will be an invaluable resource for the courts and others in interpreting the Act. See WorkCover Authority of New South Wales v JML Tree Services Pty Ltd [2015] NSWDC 253. As was the case under previous legislation, of course, a person may hold more than one duty under the legislation at the same time, and must discharge them all: see WHSA s 15. In accordance with Rec 16 of the First Report of the National OHS Review (2008): see note 19 above. For discussion of how these provisions operate, see R v Chargot Ltd (t/as Contract Services) [2008] UKHL 73; [2009] 2 All ER 645; and for commentary see B Barrett, ‘Whose Burden of Proof?: R v Chargot Limited (t/a Contracts Services) [2008] UKHL 73’ (2009) 38(2) Industrial Law Journal 215–21. Interestingly, this meant that there were then a number of offences under OHSA 2000 (outside the explicitly amended ‘general duties’ provisions) that were no longer subject to a defence and hence were then matters of strict liability: see, for example, former ss 13, 22, 86, 87 and 136. However, as there were previously very few if any prosecutions using these provisions, there seems not to have been any practical impact of this odd situation. In any case all these provisions were repealed from 1 January 2012 with the commencement of the WHSA. See Rec 4 of the First Report of the National OHS Review (2008) (see note 19 above) for the adoption of this as the general qualifier for most duties under the proposed legislation. See N Foster’s comment on q 118 at submission No 30. For more detailed comment see N Foster, ‘General Risks or Specific Measures? The High Court Decision in Kirk’ (2010) 23(3) Aust Jnl of Labour Law 230–9. See also references to the need for a ‘particular’ measure or ‘identifiable’ risk: Kirk (at [14] and [15]). Kirk: at [16]. The article by N Foster, note 49 above, suggests some reasons why this may not have been the best view of the legislation. However, given that it has now been repealed, it is not necessary here to continue that discussion. Those interested can read some discussion in the case note by N Foster, note 49 above. For a later decision of the New South Wales Court of Appeal upholding a conviction in the face of a Kirk-related challenge, see John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 and the 2011 article by N Foster noted in Further Reading list at the end of this chapter for comment. Subsequently the High Court turned down an application for special leave to appeal in those proceedings: see John Holland Pty Ltd v Industrial Court of New South Wales [2011] HCATrans 95. A challenge to the nature of particulars provided after Kirk also failed in GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157. Note that his Honour said (at [55]) that another aspect of Kirk, the ruling

concerning onus of proof under the former OHSA 1983, was no longer applicable since the form of the legislation had changed. This was clearly correct, as noted above. 54. 55.

See note 52 above. A number of jurisdictions have separate laws dealing with mining. In New South Wales the Work Health and Safety (Mines and Petroleum Sites) Act 2013, has been in operation since 2 February 2015 (although the addition of coverage to ‘Petroleum Sites’ only took effect on 1 February 2016). Section 3 of that Act says that one of its objects is ‘to assist in securing the objects of the Work Health and Safety Act 2011 at mines and petroleum sites, including the object of securing and promoting the health and safety of persons at work at mines, petroleum sites or related places’.

56.

For example, the OHSA 2000 imposed duties in relation to employees in s 8(1), and in relation to people other than employees in ss 8(2) and 9. For examples of coverage of workers placed under the supervision of others under the previous OHSA 2000, see WorkCover Authority v Forgacs Engineering Pty Ltd (Ind Rel Comm of NSW in Ct Sess, Fisher P, 18 February 1998, unreported); Morrison v Tecrete Industries Pty Ltd [2003] NSWIRComm 371; Morrison v GPR Engineering (Central Coast) Pty Ltd [2003] NSWIRComm 56 at [32].

57.

58.

59.

For labour hire cases under the OHSA 2000, see WorkCover Authority of New South Wales (Inspector May) v Swift Placements Pty Ltd [1999] NSWIRComm 113; (1999) 88 IR 53, upheld on appeal in Swift Placements Pty Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 9; WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd (t/as Drake Industrial) [2000] NSWIRComm 1134; WorkCover Authority of New South Wales (Inspector Tyler) v Workforce Link Pty Ltd [2001] NSWIRComm 24; WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd (No 1) [2001] NSWIRComm 223; Inspector Atkins v Network Productions Personnel Pty Ltd [2004] NSWIRComm 71 at [17]; Inspector Maurice Vierow v Linddales Pty Ltd [2007] NSWIRComm 255. R Johnstone, ‘Paradigm Crossed? The Statutory Occupational Health and Safety Obligations of the Business Undertaking’ (1999) 12 Aust Jnl Labour Law 73–112 at 84.

60. 61.

See Rec 3(c) of the First Report of the National OHS Review (2008): see note 19 above. See WorkCover Authority of New South Wales v Roads & Traffic Authority of New South Wales [1994] NSWIRC 109; Dept of Mineral Resources v Kembla Coal & Coke Pty Ltd [1999] NSWIRComm 353.

62.

See WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) [2001] NSWIRComm 33 for another case involving the collapse of a wall. See the article by Johnstone, note 60 above, at 87, 89–90.

63. 64.

For cases where this issue was discussed see Inspector Clarke v W C Meinhardt and Partners Pty Ltd (Matter Nos 1212 and 1213 of 1990, Fisher CJ, 30 June 1992, unreported); Whittaker v Delmina Pty Ltd (1998) 87 IR 268 at 278; Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239; WorkCover Authority of New South Wales v Chubb Security

65.

66.

Australia Pty Ltd [2005] NSWIRComm 263. See the discussion in M Tooma, Tooma’s Annotated Occupational Health and Safety Act 2000 New South Wales, 3rd ed, Lawbook Co, Pyrmont, 2009, pp 40–1 of the Harris Excavation and Morrison (swimming pool) cases: the issue may have turned on whether someone still had ongoing contractual obligations (Morrison) or had finished their work: see Tsougranis noted at Tooma, p 21. See M Tooma, Tooma’s Annotated Work Health and Safety Act 2011, Lawbook Co, Pyrmont, 2012, [19.70], p 49.

67. 68.

See Rec 19 of the First Report of the National OHS Review (2008): see note 19 above. See OHSA 1983 s 15(2)(a) and OHSA 2000 s 8(1)(c).

69.

M Tooma, Safety, Security, Health and Environment Law, Federation Press, Sydney, 2008, p 86. [2008] NSWIRComm 123 (27 June 2008) at [149]–[254].

70. 71.

72. 73. 74.

See also South Sydney Junior Rugby League Club Ltd v WorkCover Authority of New South Wales (Inspector Bestre) [2005] NSWIRComm 116, involving a holdup at a leagues club. See OHSA 1983 s 15(2)(b) and OHSA 2000 s 8(1)(b). See OHSA 1983 s 15(2)(c), and OHSA 2000 s 8(1)(d). See prosecution summary on , for August 2015.

[page 405]

8 CRIMINAL WHS LAW: OTHER HEALTH AND SAFETY DUTIES

Aims The aims of this chapter are: to explore the more detailed health and safety obligations imposed under the harmonised legislation on workplace participants other than the ‘primary’ duty under s 19; and to outline in particular the personal obligations imposed on company officers.

Objectives After completing this chapter, you should be able to: identify possible breaches of the detailed obligations under ss 20–27 of the harmonised legislation given a particular workplace situation; and advise company officers what it means to exercise due diligence to ensure that their company complies with its obligations under the legislation.

Other safety duties owed by PCBUs and officers 8.1 In the previous chapter we considered the obligations imposed on persons conducting a business or undertaking (PCBUs) under the Work Health and Safety Act 2011 (NSW) (WHSA) s 19, which are described as the ‘primary duty of care’ in the heading to Div 2 of Pt 2 of that Act. There are a number of other duties imposed by Divs 3 and 4 of that Part. Division 3 obligations are owed by PCBUs, while those in Div 4 are imposed on a range of other workplace participants. In particular, a personal duty is imposed under WHSA s 27 on company officers, which will be a major focus of the new legislation. We deal with these duties in this chapter, and then in Chapter 9 will discuss the duties imposed on workers and other persons under Div 4, along with a range of enforcement issues.

Duties under Div 3 8.2 In addition to the primary duty imposed by s 19, WHSA Div 3 imposes a number of other duties owed by PCBUs. [page 406] Duties flowing from control of workplaces and plant etc: ss 20, 211 8.3

Section 20 provides as follows: 20 Duty of persons conducting businesses or undertakings involving management or control of workplaces (1) In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include:

(a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking, or (b) a prescribed person. (2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.

Similar duties were imposed under the Occupational Health and Safety Act 2000 (NSW) (OHSA 2000) s 10 on persons who in some way had control over either premises or plant that had been provided to non-employees for the purposes of work, to ensure that these things were safe. These duties are now found in two separate provisions, WHSA s 20 (re workplaces) and WHSA s 21 (re plant and fixtures). Under WHSA s 20(1)(a), the duty does not arise for ‘the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking’. (Similarly, the ‘premises’ referred to in the former s 10 were non-domestic premises, meaning that they were not used as a private dwelling.) If this were not stipulated, the duty under s 20 would arise if, for example, someone arranged for a repairman to work on their washing machine at home and he tripped down the stairs over a toy. There may, of course, be some common law duty owed in that situation, but it is not the statutory duty under WHSA s 20. 8.4 However, in a British case, Westminster City Council v Select Managements Ltd [1985] 1 All ER 897, it was held that the ‘common area’ of a block of flats, not itself occupied as a residence, was not ‘domestic premises’, and lift engineers inspecting the lifts were ‘at work’ when doing so. What about the situation where a block of flats is held under ‘strata title’ and managed by a ‘body corporate’? Under WHSA s 5 it would seem to be arguable the body corporate would be regarded as a ‘person conducting a business or

[page 407] undertaking’ in relation to the common areas used for access or domestic purposes (such as a washing line or swimming pool). For example, if a worker was engaged to clean the pool and was injured due to the condition of the area, it could be argued that the body corporate had been in breach of its obligations under WHSA s 20. The pool area, when work was being done, would be classified under WHSA s 8 as a ‘workplace’. The defence under s 20 applying to individual occupiers of flats (that of being the ‘occupier of a residence’) would not really apply to the body corporate, since as the artificial legal entity managing the building, it would not itself ‘occupy’ any particular flat. 8.5 It is probably for the reasons outlined above that the Work Health and Safety Regulation 2011 (NSW) (WHSR) cl 7 provides as follows: 7 Meaning of ‘person conducting a business or undertaking’ — persons excluded (1) For the purposes of section 5 (6) of the Act, a strata title body corporate that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises. (2) Subclause (1) does not apply if the strata title body corporate engages any worker as an employee.

Where contractors, rather than employees, are engaged to do work, then the body corporate will not be a PCBU, and hence not subject to s 20. On the other hand, if the body corporate is large enough to have regular employees, then it will be subject to that duty (which seems to be a reasonable balancing of the various interests). Note, however, that the way s 20 operates in relation to ‘residences’ is on a plain reading of the legislation somewhat odd. The obligation under s 20(2) applies to a ‘person’. The exemption

under s 20(1)(a), though, says that the word ‘person’ as defined previously ‘does not include (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as a part of, the conduct of a business or undertaking’. Consider A who is a business owner who runs a factory. But A has a pleasant house in the suburbs to which he retreats after work, and his house has no connection with his business. Could A be exempt from s 20’s operation in relation to his factory, simply because he happens to be ‘the occupier of a residence’ somewhere else which has nothing to do with the business? This seems to be the literal meaning of the provision, but it surely cannot be what Parliament intended. Clearly what the draftsman wanted was for the duty to apply to A in connection with his factory, if the factory was not a ‘residence’. In order to achieve the result the court might have to notionally ‘redraft’ the section along the lines of s 10 of the OHSA 2000: the qualifying condition is surely meant to apply to the ‘duty’, not to the ‘person’ as such, so that the duty ‘does not [page 408] apply to premises occupied only as a private dwelling’. But a radical redrafting of this sort may not be possible under ordinary principles of statutory interpretation.2 8.6 Are company officers bound by these s 20 obligations as controllers? The answer is, No. In Inspector Fraser v Maples [2003] NSWCIMC 73, the chief industrial magistrate ruled that the former Occupational Health and Safety Act 1983 (NSW) (OHSA 1983) s 17, the equivalent of WHSA s 20 dealing with ‘control’ of premises, did not apply to an individual who is in a management position in a company. His Honour ruled that the structure of OHSA 1983 implied that a prosecution of a manager should take place under s 50 (the provision dealing with personal liability of

officers, equivalent to WHSA s 27), rather than s 17. With respect, this view seems correct, and should probably also be applied to the WHSA. Where a company is involved, it is the company which has the relevant ‘control’ over the plant or premises, not the director or manager directly. A member of a company board is not, by reason of that position alone, a ‘person conducting a business or undertaking’; it is the separate legal entity of the company that is doing that ‘conducting’. (This is made clear by WHSA s 5(4): ‘A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.’) Hence the liability of the officer should be tested under s 27, not under the provisions relating to PCBUs ‘controlling’ premises or plant. However, someone who is in charge of premises as an individual could be charged under s 20. For example, in Inspector Lancaster v CKR Pty Ltd [2010] NSWIRComm 71, Mr Cvetkovski was the owner of a site where work was being carried out; he was acting as an ‘owner–builder’ and the principal contractor, engaging subcontractors to carry out aspects of the work. He was convicted under OHSA 2000 s 10 (equivalent of WHSA s 20) when an employee of one of the subcontractors fell through an open void on the first floor of a building and later died as a result of his injuries. The evidence established that, despite being the person in overall charge of the work, Mr Cvetkovski had not assessed possible risks, did not ensure that contractors had safety management plans, and did not supervise in any meaningful way the work being done. Similar reasoning would apply under WHSA s 20. 8.7 What sort of ‘control’ grounds liability when dealing with plant? This question arose in WorkCover Authority of New South Wales v McMillan Britton & Kell Pty Ltd [1998] NSWIRComm 93, in which President Fisher imposed a penalty of $15,000 on the defendant company for a breach of OHSA 1983 s 17. The company

was a consulting engineer on the Glebe Island Bridge construction site when hooks being used to lift formwork broke. The ‘control’ that the engineers exercised over the equipment being used on the premises was said by the trial judge to be sufficient to base liability. However, this decision was overruled in McMillan, Brittan & Kell Pty Ltd v WorkCover (1999) 89 IR 464, the Full Court holding that because the firm no longer had effective [page 409] ‘control’ of the hook, there was no s 17 breach. So the ‘control’ needed to establish liability under WHSA s 21 will probably need to be some form of ongoing control. WorkCover Authority of New South Wales v Rowson [1994] NSWIRC 76 involved an accident that occurred while a chicken shed was being repaired. The owner of the shed was prosecuted under OHSA 1983 s 17, but Cullen J dismissed the prosecution because at the time of the accident a firm of contractors was in control of the work on the shed. His Honour held that s 17(2), which deems repairers to be persons with control of premises, had the effect that when in the hands of a repairer premises are no longer under the control of the owner. The decision, with respect, does not seem to address the fact that s 17(1) referred to ‘each person’ who has control, and seems to assume that there can only be one person ‘in control’ at any one time. By contrast with Rowson, the decision in WorkCover Authority of New South Wales v Moweno [1996] NSWIRC 45 held that an owner may still be in partial control even if a contractor is on site. WHSA s 20(1) also refers to ‘management or control, in whole or in part’, clearly allowing for ‘partial’ control. 8.8 A case which provides a good illustration of the operation of the former ‘control’ provisions is WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald’s Australia Ltd [2000]

NSWIRComm 277. This was a prosecution arising from the highly publicised death of an employee of a McDonald’s store in Wollongong. The young worker, who had only been employed for two weeks, was cleaning behind a grill when he touched a live wire and was electrocuted. This particular prosecution was brought under OHSA 1983 s 17 because of the complicated franchising arrangement involving McDonald’s. Essentially the main company involved, McDonald’s Australia, supervises the franchising of restaurants. The particular restaurant involved was actually run by a company called Lyndhurst, which was the injured worker’s employer. McDonald’s Australia, however, set out the rules as to which equipment should be used, and the maintenance of that equipment. As a result it was prosecuted under the equivalent of WHSA s 21 as having control to some extent of the ‘plant’; that is, the particular grill. It was found during the trial that the design of the grill was such that the attached power cable dragged along the floor; the grill was required to be regularly moved away from the wall to be cleaned and hence the cable rubbed against the floor. Over a period of years the insulation on the cable had worn through, causing the accident when the worker touched the cable. The other defendant in this case was McDonald’s Properties (Australia) Pty Ltd. This was the company that actually owned the land and restaurant premises. It was prosecuted under the equivalent of WHSA s 20 as being in control of the premises. The matters relied on in the case included the layout of the power outlets as well as the plan of the general electrical system and the availability of safety devices that would prevent electrocution. For example, the design of the premises was such that the power to the grill could not be turned off before the grill was moved out from the wall. Both the parties charged entered a plea of guilty; the report deals mainly with issues of penalty. However, the case is a good illustration of the varying types of responsibility in relation to safety.

[page 410] The obligation under s 20(2) is to ensure that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are ‘without risks to safety’ so far as is reasonably practicable. A question that may arise is whether this means that there is a distinction between the ‘physical condition of the premises’ (like weakened walls) and the ‘system of work’ issues.3 8.9 One other issue that arose under OHSA 2000 s 10(2) was the meaning of the word ‘plant’. The word was defined in s 4 of that Act to ‘include … any machinery, equipment or appliance’. Is the word ‘plant’ appropriate to describe something that is itself being erected, such as part of a building? In Gilbert v R&D Panelform Pty Ltd [1997] NSWIRC 189, Marks J held that a concrete panel being placed into a wall was not ‘plant’. ‘Plant’ is very often used in opposition to ‘premises’, and so the plate, as part of a structure being fabricated, was not ‘plant’. There may also be a general sense in which ‘plant’ must be something which is being used in the manufacturing process rather than the result of the process: see the comments of Lord Diplock in Haigh v Ireland (Charles W) Ltd [1973] 3 All ER 1137.4 In Inspector Ching v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213 at [18], it was held that a large set of gates, which allowed access to work premises, could be regarded as ‘plant’ within the meaning of the Act. It was probably significant that the gates were, of course, intended to move rather than simply being a part of the fabric of the fence. In Inspector Ching v Bros Bins Systems Pty Ltd [2003] NSWIRComm 386, it was held that a truck undergoing repairs, which was still partly under the control of the owner, could be ‘plant’ in relation to the employees doing the repairs. An employee of the owners had been present during the repairs and

had carelessly activated part of the truck mechanism, leading to a serious injury to an employee of the repairers.5 8.10 Perhaps due to the measure of uncertainty in these decisions, the WHSA has clarified some of these issues. The word ‘plant’ is defined in s 4 as follows: [page 411]

plant includes: (a) any machinery, equipment, appliance, container, implement and tool, and (b) any component of any of those things, and (c) anything fitted or connected to any of those things.

The inclusion of para (c) within that definition brings in some things that might traditionally have been regarded as ‘fixtures’ (for example, a concrete base to which a machine is attached). In addition, the obligation under WHSA s 21 no longer simply applies in relation to ‘plant’, but extends to ‘fixtures, fittings or plant’. Again, things that may have been considered as part of the ‘premises’ may also now be regarded as falling within this extended category. What of the possible liability of a repairer, where a third party had delivered defective equipment to the repairer and a defect in that equipment harmed an employee of the repairer? It is clear that under s 21 the repairer would have ‘control’ of the equipment being repaired while it was in their custody. However, it seems possible that a court would find that it was not ‘reasonably practicable’ under s 21(2) for a repairer to ensure that defective machinery being repaired was completely ‘without risks to health and safety’, if due to the prior actions of the third party, the condition of the equipment creates a risk.6 Duties flowing from design, manufacturing, importation, supply

and installation: ss 22–26 8.11 WHSA s 22 imposes obligations on designers of plant, substances or structures to take reasonably practicable steps to ensure safety, and s 23 deals with manufacturers. Three provisions of the WHSA then extend obligations to importers (s 24) and suppliers (s 25) of plant, substances or structures, and to those who ‘install, construct or commission plant or structures’ (s 26). The extended obligations under the new Act take into account the longer ‘supply chain’ obligations that are increasingly being recognised in relation to workplace safety. It is not possible to explore these obligations in detail here; however, they significantly extend the duties of those firms involved in a support role in manufacturing and supplying workplace equipment.7 [page 412] 8.12 Following are some comments on decisions on related provisions under the former legislation. OHSA 2000 s 11 imposed on the designer, manufacturer and supplier of an item of plant or a substance to be used at work an obligation to ensure that it was safe. They were also obliged to provide information about the safe use of the plant or substance. Ankucic v Rapid Packaging Services Pty Ltd (NSW CIM Ct, Miller CIM, No CIM 94/1323 & 1324, 6 April 1995, unreported) was an example of an attempt to use OHSA 1983 s 18 (the equivalent of OHSA 2000 s 11). The defendant company made a machine on contract for a label printer. After the machine had been installed, a machinist attempted to clear a blockage by reaching inside the machine, and a guillotine cut off the tips of all four fingers of her left hand. The employer (the label printer) was clearly at fault, because he had opened a perspex door and disabled a safety switch. But the inspector noticed that even when the door was closed it did not

completely prevent someone reaching into the machine. As a result the manufacturer of the machine was charged under s 18. The court found a breach of the Act proved but because, on the facts of the case, the injury had been caused by the deliberate actions of the employer in disabling safety precautions, rather than by the defect in the design of the machine, adjourned the matter for 12 months, indicating that if the company maintained a good record over the next year no conviction would be recorded. Stevenson v ATCO-APM Drilling Pty Ltd (1992) 45 IR 421, involving faulty installation of plant, was a South Australian case on the equivalent provision: Occupational Health, Safety and Welfare Act 1986 (SA) s 24(2). Another case where a conviction was recorded was WorkCover Authority of New South Wales v Acimall Aust Pty Ltd [1998] NSWIRComm 41. Acimall had supplied a high-powered saw for use in a factory. An employee who had been given minimal training was using the saw and needed to remove some accumulated sawdust. He switched off the saw and reached inside to do so, not realising that, as the judge put it: … a high speed blade running at 5000 revolutions a minute would not stop immediately upon stopping power to the machine.

The tip of his finger was cut off. Acimall was successfully prosecuted under s 18. It was proven that a number of features of the saw could have been changed to make it safer, including the addition of what was subsequently installed — a timed lock which did not allow the door of the saw to be opened until three minutes after the power was cut off. 8.13 For some time after OHSA 1983 commenced there were very few prosecutions under s 18, mainly due to issues concerning the limitation period; for example, the offence was committed during the manufacture or supply of the machinery, which may have occurred some time before the actual incident that revealed its unsafe nature. This is illustrated by the Tasmanian decision of

Pearce v BHP Steel (AWI) Pty Ltd (1998) 85 IR 305, where a prosecution under the equivalent Tasmanian provision was dismissed because the design and manufacture of the defective item had taken place too long before the incident which revealed the defect. [page 413] This problem was overcome in New South Wales with the insertion of OHSA 1983 s 49(2) (later OHSA 2000 s 107(2)), which allowed prosecution within six months of the problem becoming apparent. Under WHSA s 232(1)(a), a two-year limitation period now commences ‘after the offence first comes to the notice of the regulator’, which will achieve a similar result. 8.14 WorkCover Authority of New South Wales (Inspector Tyler) v P & D Coachworks Pty Ltd [2000] NSWIRComm 80 was another successful prosecution under OHSA 1983 s 18. The case involved the manufacturer of a bus door-closing mechanism; a bus driver was accidentally caught in the door, resulting in his death. In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50 (Arbor Products), the Full Bench of the Industrial Relations Commission overturned the prior acquittal of a manufacturer of a wood-chipping machine of a charge under OHSA 1983 s 18. The machine had been supplied to the employer, Yass Shire Council, with a manual detailing safe operating procedures and the offer of training for some employees, which was taken up. Later, when feeding in ‘green waste’, a casual employee put his hand in to clear a blockage and was dragged into the machine, effectively losing the use of both arms. Marks J at first instance found Arbor not guilty of an offence under s 18, on the basis that the machine was safe ‘when properly used’. But a majority of the Full Bench (Walton VP and Boland J;

Kavanagh J dissenting) held that his Honour had given too much weight to the instruction manual (which in fact was filed away by the council and never used). The majority held that before the ‘when safely used’ proviso can be applied, the machine itself must be safe. In this case the distance between the area where the user’s hands were and the point where the cutting took place, was insufficient, and any barrier easily circumvented. As a result the machine was not safe for the use to which the manufacturer knew it would be put, and there had been a contravention of s 18. This does seem to impose a very high standard on manufacturers, but it takes into account the well-known tendency of people not to read safety manuals. Note that in National Hire Pty Ltd v Howard [2003] NSWIRComm 144 the Full Bench declined an invitation to review the approach taken in Arbor Products, and reaffirmed its validity. 8.15

Under WHSA s 23(2):

(2) The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons: (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured.

This provision, like the previous law, does not say that an offence is not committed where a ‘manual’ has been supplied. It requires a machine to be ‘without risks’ for [page 414] people who use it for its designated purpose — even if they have not read the supplied instruction manual. In WorkCover Authority of New South Wales v Fujifilm Australia Pty Ltd (formerly Hanimex Pty Ltd) [2006] NSWIRComm 74, a supplier of hazardous chemicals was convicted under OHSA 1983 s 18 (the

incident occurring in July 2001) for a supply of photo processing chemicals for which the accompanying Materials Safety Data Sheet was not accurate. The chemicals were far more concentrated than alleged in the accompanying information, and a number of employees of the hospital to which the chemicals were supplied suffered health problems as a result of exposure to them. 8.16 Inspector Ching v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213, sentencing in Inspector Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73, illustrates a number of ways in which liability for a failure to design plant could be incurred. As noted by Haylen J, a series of ‘extraordinary circumstances’ occurred due to which a member of the public lost her life. A large sliding gate had been installed at a concrete plant run by Hy-Tec. The gate was normally operated by machinery, but the mechanism not infrequently failed and the gate had to be manually opened and closed. An employee of Hy-Tec, Mr Sheath, was the last to leave one day, and was manually closing the gate, assisted by a friend, Ms Maybury. As Haylen J noted (at [1]): In the course of Mr Sheath and Ms Maybury attempting to manually close the western leaf, they pulled the western leaf, the front edge of the gate leaf, past the mid-point of the driveway and the gate moved out of its supporting portal and fell on Ms Maybury causing her fatal injuries. The metal gate was nearly 11 m long and over 2½ metres wide. The weight of the western leaf of the western gate was approximately 1340 kgs.

The prosecution in the case was undertaken against three parties: Hy-Tec, the employer, under OHSA 2000 s 8(2) (endangering a non-employee), and under OHSA 2000 s 11 against Lejah, the company that had installed the gates, and Simpson Design Associates (SDA), which had provided the design for the gates. The gates as designed and installed did not contain any physical ‘stop’ to prevent the leaves of the gate from falling if the motor was not working and manual operation was necessary. (The lack of a properly designed ‘stop’ led to the installation of one that was defective and did not prevent the accident.)

8.17 Lejah pleaded guilty to offences under OHSA 2000 s 11 relating to supply of plant without adequate information, and installation of dangerous plant. SDA pleaded not guilty to an offence relating to the design, but after a contested trial was convicted. At the trial, Inspector Ching v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213, Haylen J commented on SDA’s claim that the ‘design brief’ had not requested a manual stop mechanism, by reference to the evidence of an expert, Mr Simpson (not related to the owner of the company) (at [21]): Mr Simpson’s evidence was to the effect that the defendant should have undertaken a risk analysis, including what he described as a ‘what if?’ analysis as part of the overall design process. Speaking as a professional engineer, Mr Simpson’s evidence was that

[page 415] such an analysis should be undertaken by any professional engineer regardless of any sub-speciality in which they practised, including structural engineers. Mr Simpson’s evidence was to the effect that reliance could not be solely placed upon electronic or electrically operated systems for the gates and that an alternative system also had to be available. If the defendant had followed the most basic of design principles by importing a basic risk analysis for the design, then that analysis would readily have identified that the electrical operation of the gates would, from time-to-time, fail and thus necessitate manual operation of the gates. The defendant should have been aware of the risk associated with manual operation of the gates and included travel limiting devices in the design.

The case provides a very interesting example of how the complexity of contracting arrangements and project supervision may contribute to a fatal injury. It is worth noting that the court specifically commented (at [38]) that it is no answer to a charge of this sort to refer to ‘professional practice’ alone as an excuse for not assessing the risks of equipment. The conviction of the firm was upheld in a later decision, Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316. An example of a prosecution under s 21(2) is under the Queensland WHSA, where a worker was injured when struck by an

uncontrolled movement of a side tipping gate on a steel truck trailer in the process of being manufactured.8 An example of a prosecution under s 26(2) that imposes a duty on those installing, constructing, commissioning plants or structures is the 10 November 2014 New South Wales prosecution against Ultra Group Pty Ltd.9 A worker was placing steel rods into a block wall at a construction site when he was given an electric shock when he contacted the power lines. An example of an OHSA 2000 s 11 offence, which would seem to also be a new s 23 offence, is Inspector Rand v Corcoran [2013] NSWIRComm 88, which involved an engineering firm which was asked to design a ‘hoist’ to be used in a tyre sales office, to go up and down in an area where the tyres were stored. The hoist failed and two employeses of the tyre firm fell and were injured. The manufacturer was found guilty (the hoist failed to comply with a number of Australian standards that had to be met in a hoist which would be used to carry persons as well as goods). Another example of a s 11 case was WorkCover Authority of New South Wales (Inspector Glassington) v Graffica Pty Ltd [2012] NSWDC 311, where a failure to provide a ‘guard mechanism’ in a machine which folded cardboard in the printing industry led to a worker being crushed and killed. The company prosecuted had imported the machine from China and supplied it to the printing company Ultra. A charge under WHSA s 24, which applies to importers, would probably also have been successful. [page 416]

Duty under Div 4: liability of company officers10 8.18 One of the issues that has naturally generated much interest among company officers is the fact that officers may be

personally liable for breaches of the legislation that their companies have committed. Before discussing the details of the WHSA, however, one important point is worth noting. The law in civil matters allows a director to take out insurance against their liability to pay civil damages for harm, should such arise. However, there is a very long-standing and important rule of public policy that it is not possible to take out a valid insurance policy covering possible criminal penalties exacted in criminal proceedings, where there is any element of ‘personal fault’ in the offence.11 Regrettably, some insurance companies seem to be offering policies that on their face purport to allow recovery of such penalties. But the better view is that any such insurance is not valid. Criminal penalties for personal failure to ensure due diligence will have to be paid out of a director’s personal funds.12 The South Australian Industrial Relations Court noted with disapproval that a company director who it intended to fine, had access to an insurance policy which purported to cover his criminal penalty. The court took evidence of this policy into consideration in levelling a higher penalty than usual. 13 General provisions 8.19 The provision dealing with personal officer liability is WHSA s 27, which in part reads as follows: 27 Duty of officers (1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

[page 417]

To properly understand this section it is important to be aware of how the law of companies (or ‘corporations’, usually synonymous) operates. The key legal feature of a corporation is that it has a separate legal ‘identity’ or ‘personality’ from that of the members of the corporation. As a result, a company, once brought into existence by the process of ‘incorporation’, can hold property, employ personnel and commit offences. As an employer, or more generally a ‘person conducting a business or undertaking’, a company may be guilty of an offence under the Act. It is particularly important when considering problems in this area to note that if a company is the employer of someone, then a board member is not. Under s 27, then, an ‘officer’ of the corporate PCBU has a separate and freestanding duty to exercise due diligence to ensure that the PCBU complies with its duties. The model provided by the former OHSA 2000 s 26 until 7 June 2011 operated in a different manner, deeming an officer to be liable if the company had contravened the legislation, unless defences of due diligence or lack of influence could be made out.14 The Occupational Health and Safety Act 2004 (Vic) s 144, still in operation in Victoria, imposes liability where a failure of a corporation to comply with its duties is ‘attributable’ to a failure of reasonable care by the officer.15 8.20 The WHSA provision, by contrast, imposes a positive duty framed in terms of due diligence. Consistently with the general approach to onus of proof issues under the WHSA in the ‘general duties’ area noted previously (see 7.35), the element of lack of due diligence will now need to be established on the balance of probabilities by the prosecution.16 The duty arises where a ‘person’ conducts a business or undertaking, and while it sounds odd to refer to ‘an officer of the person’, interpretation legislation invariably includes companies when it uses the word ‘person’.17 This new provision is a reasonably straightforward implementation of recommendation 40 of the First Report of the

National Review, which was that a new Model Act should ‘place a positive duty on an officer to exercise due diligence to ensure the compliance by the entity of which they are an officer with the duties of care’ under the Act. This is a very commendable change which is supported by a wealth of research that stresses the need for management to provide clear leadership on safety issues.18 [page 418] (Another way of approaching the issue of personal liability for company officers is, where a worker has been killed, to consider the possibility of a prosecution for manslaughter against a senior officer. This issue is not explored in detail here, but see Foster (2006) in the Further Reading list at the end of this chapter for the general question, and Foster (2016) for analysis of a recent appellate court decision, R v Moore [2015] NSWCCA 316, touching on the issues.) 8.21 clear:

The elements of the offence under s 27, then, are fairly

that there is a corporate PCBU which has a duty or obligation under the WHSA; that the accused individual is an ‘officer’ of that PCBU; and that the accused has failed to exercise ‘due diligence’ to ensure that the PCBU complies with that duty or obligation. It is interesting to note that, unlike the previous New South Wales legislation, for example, which required that the relevant company actually contravene the legislation, it would seem to be possible for an officer to be guilty under WHSA s 27 simply by failing to exercise due diligence, even if the company itself has not (yet) been guilty of a breach.19 That is, an inspector may charge a person even if there has been no corporate breach, simply because

the person has not put in place any procedures to monitor and respond to safety risks. Who is an ‘officer’? 8.22 The obligation applies to an ‘officer’ of the corporate person. The definition of this term has been a controversial issue. Under the OHSA 2000 s 26, liability was imposed on ‘directors’ and also on those ‘concerned in the management’ of the corporation, for breaches committed by the company. It was necessary that the company be guilty before the officer could be found to be guilty. However, one of the difficulties in applying s 26 was clarifying the exact meaning of the phrase ‘concerned in the management’. How far down the chain of command in a company did possible liability extend? And how far was it desirable to impose a s 26 obligation on ‘middle management’ personnel, constrained as they may be by directions from above? 8.23 Under WHSA s 27 similar issues may arise. The provision imposes liability on ‘officers’, but that term is defined in WHSA s 4 in a way that requires reference to the [page 419] Corporations Act 2001 (Cth) s 9 (with the exception of partners in a partnership, who are treated separately).20 officer means: (a) an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership; or (b) an officer of the Crown within the meaning of section 247; or (c) an officer of a public authority within the meaning of section 252, other than an elected member of a local authority acting in that capacity.

The Corporations Act s 9 provides in the definition of ‘officer’ that the word includes: (a) a director or secretary of the corporation; or (b) a person: (i) who makes or participates in making decisions that affect the whole or a substantial part of the business of the corporation; or (ii) who has the capacity to affect significantly the corporation’s financial standing; or (iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation) …

Since partners in firms are regarded under WHSA s 5(3) as ‘persons conducting a business or undertaking’, the WHSA definition clarifies that they are not also regarded as ‘officers’. This may have been necessary as WHSA s 5(2) says that: (2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

While this provision does not directly deem a partnership to be a ‘person’, it might have suggested this unless the exclusion in para (a) of the definition of ‘officer’ in WHSA s 4 had been spelled out. [page 420] Arguably, the extended definition of ‘officer’ will include at least some ‘middle managers’.21 The previous definition in OHSA 2000 s 26 referred broadly to persons ‘concerned in the management’ of the corporation. While the extended definition of the term ‘officer’ in the Corporations Act s 9 does not use the phrase ‘concerned in the management of the corporation’, elements of

paras (b)(i) and (ii) of that definition are in fact taken from court decisions considering the meaning of that very phrase.22 Therefore, the decisions of courts on the issue under OHSA 2000 s 26 (and its predecessor, OHSA 1983 s 50) are likely to be of interest to courts interpreting the word ‘officer’ in WHSA s 27. Following is a brief review of some of those earlier decisions. 8.24 While there were a number of prosecutions of directors under OHSA 1983 s 50 (mostly in ‘one-man’ companies), the precise reach of the phrase ‘concerned in the management’ had not been addressed in the cases until the mid-1990s.23 Two English decisions on similar provisions in United Kingdom law stressed that for a person to be ‘involved in management’ they must also hold some overall role in formulating company policy and strategy. In R v Boal [1992] 2 WLR 890, an assistant manager in a bookshop was held not to be within the category of management covered by the statute involved.24 The phrase used in that Act was ‘director, manager, secretary or other similar officer’. The Court of Appeal per Simon Brown J (at 895F) followed an earlier decision on a similar phrase in corporate legislation to find that the Act was: … intended … to fix with criminal liability only those who are in a position of real authority, the decision-makers within the company who have both the power and responsibility to decide corporate policy and strategy.25

As a result the assistant manager was relieved of responsibility. The decision, however, seems a very generous one: the evidence was that the bookshop concerned was the only major workplace of the company, and that the accused was the fourth-most senior decision-maker. [page 421] In Woodhouse v Walsall Metropolitan Borough Council [1994] Env

LR 30, the defendant was acquitted because (at 40): … there was nothing in the evidence which could properly have led [the magistrates] to conclude that the appellant was a decision-maker within the company having both the power and responsibility to decide corporate policy and strategy.

On the other hand, a Scottish decision under a section almost identical to OHSA 1983 s 50 held that a ‘director of roads’ for a Scottish municipality was able to be charged under the section: Armour v Skeen [1977] Scots Law Times 71 at 74–5 per Lord JusticeClerk Wheatley: Having regard to the position of the appellant in the organisation of the council and the duty which was imposed on him in connection with the provision of a general safety policy in respect of the work of his department I have no difficulty in holding that he came within the ambit of the class of persons referred to in s. 37(1).

And in R v The Mayor, Councillors and Citizens of the City of Dandenong and Noel Bailey (County Court of Vic, Stott J, 8 November 1991, unreported) the County Court found that the city engineer was sufficiently responsible to be regarded as someone ‘concerned in the management’ of the city for the purposes of the Occupational Health and Safety Act 1985 (Vic) s 52.26 8.25 In a case involving general company law, Commissioner for Corporate Affairs v Bracht [1989] VR 821, Ormiston J of the Supreme Court of Victoria emphasised that the meaning of the phrase ‘concerned in the management of’ must be determined by looking at the provision in which it occurs. In that case, which dealt with financial irregularities, he commented (at 830): It may be difficult to draw the line in particular cases, but in my opinion the concept of ‘management’ for present purposes comprehends activities which involve policy and decision making, related to the business affairs of a corporation, affecting the corporation as a whole or a substantial part of the corporation, to the extent that the consequences of the formation of those policies or the making of those decisions may have some significant bearing on the financial standing of the corporation or the conduct of its affairs …

The similarity of the comments of Ormiston J in this case and

the terminology used in the later enacted Corporations Act (see 8.23 above) is probably not coincidental.27 [page 422] 8.26 Clearer guidance on this issue, however, was provided in the judgment of Staunton J in McMartin v Newcastle Wallsend Coal Company Pty Ltd [2004] NSWIRComm 202 (the Gretley case). The prosecution flowed from an incident at the Gretley Colliery in which four miners were killed when they unwittingly broke through into a previously abandoned tunnel that had been filled with water, and were drowned. The two main companies involved in operating the mine, Newcastle Wallsend and its parent company Oakbridge Pty Ltd, were prosecuted, as well as eight individuals at various levels of management. Essentially, the incident seems to have been due to the fact that the company was given an inaccurate plan of the location of the old workings by the Department of Mineral Resources. Her Honour found, however, that the plan that was provided contained a number of unusual features which should have led managers and the mine surveyor to undertake further investigations to determine whether it was accurate or not. Accordingly, the corporations were convicted of offences under OHSA 1983 ss 15 and 16, the s 53 defences not being made out. The question then arose of the liability of managers under s 50. The judgment contains an extensive discussion of the liability of the individual managers, and in particular, as none of the individual defendants was a formal ‘director’ of the companies concerned, the question of the meaning of ‘concerned in the management’. As her Honour commented (at [833]), there had previously been no definitive authority of the Industrial Relations Commission of New South Wales (IRC NSW), or any other court, as to the proper construction of the phrase.

8.27 The judgment discusses a number of corporate cases including the Bracht case (see 8.25 above), and contains the following summary of the law (at [885]): What would appear to be a common and understandable factor in all the authorities to which I was taken was the person’s decision making powers and/or authority going directly to the management of the corporation. That decision making role or authority on behalf of the corporation may involve advice given to management encompassing a participation in its decision making processes and the execution of those decisions going beyond the mere carrying out of directions as an employee. That decision making role or authority and the responsibilities inherent in them must be such as to affect the corporation as a whole or a substantial part of the corporation. In saying that, it does not mean that the person must be at the highest levels of management. The structure and size of the corporation is relevant as is the role of the person within the corporation relevant to his/her decision making powers on behalf of the corporation. Critically, in relation to s 50(1), the person’s decision making powers must be such as to directly influence the corporation in relation to the act or omission that constituted the offence of the corporation. That much, I believe, is self evident given the nature of the defences available in s 50(1)(a) and (b).28 In other words, the determination of a person concerned in the management of the

[page 423] corporation in s 50(1) must be a person who was in a position to influence, by advice or decision making, the conduct of the corporation in relation to its contravention or whose decision making powers within the corporation comprehends activities the consequences of which have a significant bearing on the conduct of the corporation relevant to its contravention. [emphasis added]

In other words, a person was ‘concerned in management’ for the purposes of s 50 (and no doubt for the purposes of OHSA 2000 s 26) if they had: decision-making power and authority; going beyond the mere carrying out of directions as an employee; such as to affect the whole or a substantial part of the corporation; and which powers related to the matters which constituted the offence of the corporation under the legislation.

In the context of the Gretley litigation, the result of this analysis was that the two individual defendants, Messrs Porteous and Romcke, who held the position of mine manager at Gretley during the relevant times, were found to be clearly ‘concerned in the management’ of the mine. In addition to these statutory obligations, however, her Honour found that they had held positions of ‘general mine manager’ which involved them in having overall supervision of all matters relating to the management of the mine including, in particular, safety issue: at [901]–[902]. 8.28 It was an interesting question whether it was necessary in the prosecution of a manager under s 26 to find a direct link between the specific powers and duties and activities of the manager, and the contravention by the corporation. Her Honour did in fact find that these managers had powers that would have enabled them, and indeed responsibilities that required them, to query the accuracy of the relevant maps and to further investigate them: at [907]. However, it could be argued that establishing primary liability under s 26 did not require that such a specific link be found — the issue of the specific link between what the manager did or did not do, and the occurrence of the incident, being left either up to the defences in s 26(a) or (b), or being mostly relevant to the sentencing process and the quantum of the fine. In this case a number of other lower-level managers were found not to fall within the definition of ‘concerned in management’. These men held the statutory position of ‘under manager’ or ‘under manager in charge’, referred to in the Coal Mines Regulation Act 1982 (NSW) s 41. But while they were given specific responsibilities for certain shifts and certain areas, her Honour was not satisfied that they were concerned in the management, especially when account was taken of the fact that the corporations charged (especially Oakbridge) operated at sites other than Gretley. The under managers were not proved to have

the broader overall responsibility required to fall within s 50: see the discussion at [910]–[935]. One other person was, however, found by Staunton J to be ‘concerned in management’. This was the mine surveyor, Mr Robinson. His role was obviously important because the effective cause of the deaths was a deficiency in the map that was given to the companies, and he was in charge of the survey and drafting staff for the mine. In addition, he was given a statutory responsibility under the Coal [page 424] Mines Regulation (Survey and Plan) Regulation 1984 (NSW) cl 8 to certify to the accuracy of the plans used in the mine, and to draw to the attention of the manager of the mine any doubt he had about the accuracy of the plans. Due to the key role that this information played in management decision-making (see the discussion at [942]), Mr Robinson was found to be ‘concerned in management’ for the purposes of s 50. 8.29 Mr Robinson’s conviction was, however, overturned on appeal to the Full Bench of the Industrial Court.29 The Full Bench ruled that Mr Robinson was not senior enough in management, did not attend management meetings, and only supervised two or three others. The Full Bench also commented on the definition of ‘concerned in management’ in another case, Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297. This was another prosecution of a mine manager, a Mr Foster, who had been in charge when a roof caved in and caused the death of a miner. The Full Bench overturned the original acquittal of the company and hence had to determine Mr Foster’s liability under OHSA 1983 s 50.30 Unfortunately, their Honours, in ruling on the question whether Mr Foster was ‘concerned in the management’ of the corporation, seemed not to

have been aware of the extensive analysis of the issue provided by Staunton J in McMartin.31 However, they relied on very similar cases,32 and in the end agreed that someone who was a mine manager fulfilled the statutory criteria for being concerned in management. In particular, the fact that Mr Foster’s statutory obligations extended to WHS matters was considered important.33 8.30 The New South Wales Court of Appeal also gave some authoritative guidance on this question. The court (Spigelman CJ, Mason P and Handley JA) handed down two important decisions clarifying the operation of the provisions relating to company officers, and confirming the validity of the jurisdiction then conferred on the Industrial Relations Commission to hear prosecutions under the OHSA 2000. The decisions are Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345 (Powercoal) and Coal Operations Australia Ltd v Industrial [page 425] Relations Commission of New South Wales [2005] NSWCA 346. Both cases involved a death in a coalmine due to a roof fall, and in both cases a first instance decision by the trial judge to acquit the defendant company (and, in Powercoal, a manager) was overturned on appeal to the Full Bench of the Industrial Relations Commission of New South Wales in Court Session. While the decisions address the issues in terms of the previous legislation, the comments of the Court of Appeal may be influential in interpreting the WHSA. 8.31 In Powercoal, there was discussion of the argument put forward by Mr Foster that as mine manager at Awaba Colliery he was not of sufficient seniority to be caught by the provisions of the OHSA 1983 s 50. His argument was that the phrase ‘concerned

in the management’ in relation to a corporation meant that he would have to be involved in the overall management of the company as a whole, rather than simply as a local manager. The Court of Appeal provided invaluable guidance on the meaning of this phrase. Spigelman CJ made the following points: The line of decisions flowing from Tesco Supermarkets v Nattrass [1972] AC 153, which deals with the question of which company officers will create liability for the company, is irrelevant to the issue of who is ‘concerned in the management’ of a company for the purposes of the OHS Act: at [95].34 The question of what ‘concerned in the management’ means cannot be resolved simply by consideration of cases dealing with the phrase as used in legislation governing companies; it must take its meaning from the context in which it is used. The relevant issue in considering the meaning of the phrase in the OHSA 2000 is ‘any aspect of the operations of the company insofar as it raises safety considerations’: at [102]. The fact that the same person might be both an employee (and hence liable under the OHSA 2000 s 20) and also a person ‘concerned in management’ for the purposes of s 26, does not mean that s 26 should be ‘read down’ to exclude employees. ‘The scope, purpose and object of the legislation is not such that one should read down the language of one section by reason of the possibility of an overlap’: at [105]. The broad purposes of the Act — to encourage safety and to apply to a range of possible defendants — led to a conclusion that the phrase should not be interpreted narrowly, his Honour stating (at [116]): The objects of the Act, and the general nature of the duties imposed by the Act, suggest that Parliament did not intend to give the language of s 50(1) a narrow, let alone a technical, meaning. The purposive approach to interpretation required at common law, and now by s 33 of the Interpretation Act 1987, suggests that the words ‘management of the corporation’ should not be read down so as to apply only to central management.

The decision of the Full Bench on the matter was not shown to

be in error. [page 426] The judgment in Powercoal provides a good foundation for a proper understanding of the reach of the WHSA s 27. However, it is important to remember that the wording of the definition of ‘officer’ in s 9 of the Corporations Act 2001 is not identical to the wording under the prior OHSA 2000, and so careful attention needs to be paid to the current wording and how it applies. The High Court of Australia had occasion in Shafron v Australian Securities and Investments Commission [2012] HCA 18 to comment on the meaning of para (b)(i) of the definition, ‘makes or participates in making decisions that affect the whole or a substantial part of the business of the corporation,’ in the context of the Corporations Act. The majority there noted that: [T]he inquiry required by this paragraph of the definition must be directed to what role the person in question plays in the corporation. It is not an inquiry that is confined to the role that the person played in relation to the particular issue in respect of which it is alleged that there was a breach of duty [at [23]] … [S]ub-par (i) of par (b) distinguishes between making decisions of a particular character and participating in making those decisions. Contrary to Mr Shafron’s submissions, participating in making decisions should not be understood as intended primarily, let alone exclusively, to deal with cases where there are joint decision makers. The case of joint decision making would be more accurately described as ‘making decisions (either alone or with others)’ than as one person ‘participating in making decisions’. Rather … the idea of ‘participation’ directs attention to the role that a person has in the ultimate act of making a decision, even if that final act is undertaken by some other person or persons. The notion of participation in making decisions presents a question of fact and degree in which the significance to be given to the role played by the person in question must be assessed [at [26]].

Hence a person might be found to be an ‘officer’ even if their role in decisions was subject to the final approval of some other person or body. It will be a question of fact in each case as to how

important their contribution was to final decisions affecting the whole or a substantial part of the business of the company. The Australian Capital Territory Industrial Court, when applying its WHSA, held following Shafron that the concept of an officer is to be viewed through the ‘prism of the organization as a whole rather than a particular function in which the individual was engaged’.35 It was found by this court that, applying s 9(b)(i) of the definition in the Corporations Act 2001 (Cth), the person in question had only operational responsibility to implement delivery of specific contracts and so did not have the required control or responsibility for the company’s business or undertakings.36 They did not make decisions that affected the whole or a substantial part of the company. [page 427] 8.32 Inspector James v Ryan [2009] NSWIRComm 215 involved the interesting situation of someone who it was alleged had been appointed as a ‘director’, and yet when the matter came to trial his formal appointment could not be proved.37 The circumstances were that Mr Ryan was the CEO of a ‘holding company,’ of which the company that was the direct employer of the injured worker, Dekorform, was a subsidiary. The practice of the head company, Alesco, was to appoint its board members as directors of its subsidiary companies, and Mr Ryan had filed a ‘consent to appointment’ form for Dekorform. But the constitution of Dekorform provided that, while a director could be appointed by a holding company, notice of the appointment had to be given: at [60]. While Mr Ryan had behaved as if he were a director, no one could locate a formal resolution of Alesco appointing him, or a formal notice to Dekorform of the fact of appointment. At trial, Marks J ruled that the prosecution had not been able to

satisfy him beyond reasonable doubt that Mr Ryan had in fact been properly appointed: at [94]. The prosecution claimed in the alternative that, even if not a validly appointed director, Mr Ryan fell within the definition of that term in Corporations Act s 9, para (b) of the definition of ‘director’, as he (i) acted in the position, or (ii) was someone in accordance with whose instructions the directors of Dekorform were accustomed to act. (This argument is of interest given the current definition of ‘officer’ in the WHSA 2011, which picks up precisely these provisions.) Marks J doubted whether ‘acting’ as director by signing three resolutions for the company (which Mr Ryan had done) meant that he was thereby director for all purposes: at [100]. Nor was he satisfied that Mr Ryan gave instructions to Dekorform; he was involved at higher levels and rarely interacted with Dekorform officers: at [104]. In any event, Marks J referred to previous decisions which had held that the ‘extended’ definition of ‘director’ in companies legislation should not automatically be applied in legislation imposing a criminal penalty: see the discussion at [127]–[135], especially Dean v Hiesler [1942] 2 All ER 340, a very similar case to this one. His Honour held that the word ‘director’ in the legislation means ‘someone who has been duly appointed a director of that company in accordance with its constitution’: at [148].38 8.33 On appeal, in Inspector James v Ryan (No 3) [2010] NSWIRComm 127, the Full Bench of the Industrial Court of New South Wales ruled that Marks J was in error in concluding that the word ‘director’ in OHSA 2000 s 26 did not include the extended meaning of the word to be found in Corporations Act s 9. They held that the term [page 428] was broad enough to include someone who had not been formally

appointed as a director in accordance with the company’s constitution, but who was either a ‘de facto director’ (someone who acts as a director), or a ‘shadow director’ (someone in accordance with whose wishes the formally appointed directors act): at [86]. They concluded that his Honour was correct in finding that it had not been established beyond reasonable doubt that Mr Ryan had been formally appointed as a director. On careful consideration of whether Mr Ryan was a ‘de facto director’, however, while he had intended to become a director, and while the company had held him out as a director (filing a document with ASIC saying he was a director), and while he had undertaken some functions as a director, there was a further criterion which had to be met, which was that he ‘exercised top-level management functions’ in the particular company, Dekorform (see [189], citing Deputy Commissioner of Taxation v Austin (1998) 28 ACSR 565 at 570 per Madgwick J) and did so at a relevant period of time: at [205]. In the end the court concluded that Mr Ryan’s involvement with Dekorform at the relevant times was ‘marginal’ and hence he could not be held to have been a ‘de facto director’ at the time: at [222]. Nor was he a ‘shadow director’ because there was no evidence that other directors of the company acted in accordance with his wishes: at [229]. Hence Mr Ryan’s acquittal under s 26 was upheld (though for slightly different reasons than given by Marks J). For a detailed discussion of the concept of ‘shadow director’, see the decision of Young JA in Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2011] NSWCA 109 at [179]–[232]. 8.34 One further complication may arise under the WHSA, however. The reference to the Corporations Act definition picks up that Act’s reference to the company’s ‘financial standing’ in para (b)(ii) of the definition of ‘officer’ in s 9. That is entirely appropriate for legislation, a major purpose of which is to regulate the finances of companies. It may be queried, however, whether a

person who has a major influence on financial standing is always the best person to fix with personal liability for safety breaches. The two are of course related, but it might have been preferable to craft a definition of the term that refers, as Spigleman CJ did in the quote from Powercoal (at [102]) noted above, to ‘safety considerations’. Still, it is at least clear that all senior financial officers will have to pay special attention to safety issues under s 27, and this is a very satisfactory outcome. 8.35 Under WHSA s 27, there is also an unresolved question as to whether one company can itself be ‘a person’ with management responsibilities in another company, under the definition of ‘officer’. That is, is it possible for a company — as opposed to an individual manager — to commit an offence under s 27 in relation to another company? It seems unlikely, and there appear to have been no such prosecutions. It cannot be denied that s 27 uses the generic term ‘person’, which, as noted at 8.20, does usually include ‘company’ unless there is a contrary intention. However, it could be argued that there is a contrary intention here. The word ‘director’, for example, only refers to an ‘individual’: see Corporations Act s 201B(1), where only individuals are capable of being appointed as directors. On the other hand, Standard Chartered Bank of Australia Ltd v Antico (No 2) (1995) 38 NSWLR 290; 13 ACLC 1381 and Ho v Akai Pty Ltd (in liq) ACN 001 500 714 (2006) [page 429] 24 ACLC 1526; [2006] FCAFC 159 hold that for company law purposes one company can be a ‘shadow director’ of another company.39 Therefore, the matter remains in some doubt (in the workplace safety context) until the courts resolve the issue. Position of ‘volunteer officers’

8.36 Can a person who is on the board of an organisation in a voluntary capacity be prosecuted under s 27? The Act provides a specific exception from liability for ‘volunteers’ as follows: 34 Exceptions (1) A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29.

This presumably means that a volunteer cannot be prosecuted for an offence under s 27 (which is contained in the same Division as s 34) as an ‘officer’, even if they are a board member of an organisation, and even if the organisation of which they are an officer is itself to be classified as a ‘person conducting a business or undertaking’. Will this lead to commercial companies appointing board members who are not entitled to a fee or honorarium? The definition of ‘volunteer’ in s 4 refers to ‘someone who is acting on a voluntary basis (irrespective of whether the person receives outof-pocket expenses)’. It is to be hoped that regulators will be alert to any arrangements that might be made for so-called ‘out-ofpocket’ expenses to be artificially inflated so as to amount to a salary, to allow board members to escape legal liability by purporting to be volunteers. 8.37 We will consider the general position of ‘volunteers’ and volunteer associations under the WHSA in Chapter 9 at 9.7 ff. However, in order to fully understand the situation of ‘volunteer officers’ we need to first discuss some other aspects of the Act. What of the situation of a charity or other ‘voluntary association’ (assuming, for this discussion, that it is incorporated), where the organisation pays a manager? The salaried manager would not be a ‘volunteer’. The organisation may appear to be a ‘volunteer association’, and hence at first considered to be exempt from the duties imposed on PCBUs by s 5(7): ‘A volunteer association does not conduct a business or undertaking for the purposes of this Act.’

However, under the definition of the term ‘volunteer association’ in s 5(8), the immunity given by s 5(7) only applies ‘where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to work for the … association’. Presumably this will apply even where an ‘unincorporated association’ otherwise made up of volunteers employs someone (as in some sense that [page 430] employment will be ‘joint’ employment by all the members).40 So where a person is engaged as a worker by a club, that club loses its immunity from prosecution under s 5(7). Hence the salaried officer concerned may be prosecuted under s 27. Interestingly, WHSR cl 7(3) clarifies the situation of what might be termed ‘volunteer incorporated associations’ by confirming that the same rules apply to them: that if neither the association, nor the members themselves, employ anyone, they are not to be taken to be a PCBU. (The regulation may have been necessary because technically, when someone is engaged by an incorporated association, they are not engaged directly by the members, but rather under a contract with the ‘legal entity’ constituted by the association. Hence it may have been contemplated that s 5(8) might not have been sufficient to provide immunity for incorporated associations.) 8.38 Other provisions of WHSA s 34 provide some further guidance on these issues: 34(2) An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act. (3) However: (a) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section

27, and (b) a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29.

The effect of these provisions is that an unincorporated association cannot be prosecuted under the Act. But a salaried officer of the association, if they have failed in their duty of due diligence, may be personally prosecuted under s 27, and any member of the association (volunteer or not) may also be personally prosecuted for failing to comply with s 28 or s 29. (Carol singers sent by an unincorporated choir to a shopping centre, for example, might be prosecuted for distracting workers. The scope of s 29 is so broad that it applies to ‘a person at a workplace’, whether or not they are a worker.) 8.39 Some uncertainty concerning particular situations still remains. For example, a ‘registered club’ employs personnel but is run by a completely voluntary board. Members of the board would not be liable under s 27, due to s 34(1), but when might they be liable under s 28? In what circumstances would they be regarded as ‘carrying out work in any capacity’ for a PCBU, under the definition of ‘worker’ in s 7? Section 28 would probably [page 431] really only apply to a committee member while engaged in their ‘official duties’ as such. Managing the club could be regarded as ‘carrying out work’ for the club. Presumably s 28 would not apply while the committee member was drinking at the bar or playing bowls; however, it could be applied while they were acting in their official capacity — perhaps by directing a staff member to do some work. Of course, as a ‘person’ they could also be liable under s 29 for failing to take reasonable care for others at the club, such as carelessly throwing a dart at someone, but then this is the same liability that will attach to all members and visitors at the club.

One unusual characteristic of these provisions, however, is that they seem to assume that an unincorporated association might — if these provisions were not present — be liable under the Act. But why is this the case? The nature of such an association is that it is not a ‘person’ for legal purposes.41 The answer seems to be found in the enigmatic s 5(2), which, as noted previously, provides that: ‘A business or undertaking conducted by a person includes a business or undertaking conducted by … an unincorporated association.’ While that provision appears to be a definition of ‘business or undertaking’, rather than a definition of ‘person’, it could possibly be read as including such associations within the meaning of ‘PCBU’. Hence the need for the clarifying exclusion of criminal liability under s 34(2). Officers of government organisations 8.40 Under WHSA s 5(5) (see 7.32), an elected local government councillor is not by reason of that alone a business operator. Under the previous OHSA 2000 s 26(7),42 they were also immune from prosecution as a company officer. This immunity of local councillors is provided for in the WHSA through the definition of ‘officer’ (see 8.23), the concluding words of which provide: ‘other than an elected member of a local authority acting in that capacity.’ However, under a later provision of the WHSA, s 247, liability is imposed on some officers of the Crown as follows: 247 Officers (1) A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the Crown is taken to be an officer of the Crown for the purposes of this Act. (2) A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act.

[page 432]

Some suggestions have occasionally been made that various government ministers responsible for programs that might have put workers’ safety at risk, should be able to be prosecuted; however, WHSA s 247 denies this possibility.43 The section is, however, an interesting extension or clarification of possible liability of senior public servants. It is notable that the current version differs from an earlier draft of the Act in which individual government departments were mentioned. Could a senior manager in a particular government department — for example, the Immigration Department — be said to be involved in decisions that affect ‘a substantial part of the business or undertaking of the Crown’ [emphasis added]? One could always take the view that any one department was only ever a small part of the overall business of government in general. On the other hand, if the manager of any one government department could never be caught by the provision, then it would seem to be effectively useless. I suspect the courts will interpret the provision in a way that allows it to have some effective operation. There is an interesting difference of drafting on this very point, between the Commonwealth WHSA and the New South Wales WHSA. The Commonwealth version refers to someone who participates in the running ‘of a business or undertaking of the Commonwealth’ [emphasis added], clarifying that someone in charge of a single Department or agency may be liable. But the courts might choose to read the New South Wales provision similarly. Section 252 makes a similar provision for those managing ‘public authorities’, a term which in the Model Law is to be left up to each state and territory to define.44 One case that involved a person working as part of a large, government organisation trading as a private undertaking is Prosecution E165293 under the Queensland WHSA.45 In that case, the relevant project officer had a role in repairing damage to a bridge. The failure to seek appropriate asbestos sample tests led to a successful prosecution.

Meaning of ‘due diligence’ 8.41 The standard of care prescribed for officers in WHSA s 27 is ‘due diligence’. The Oxford English Dictionary defines the word ‘diligence’ as, simply: Constant and earnest effort to accomplish what is undertaken; persistent application and endeavour; industry, assiduity.46

[page 433] The word implies hard work and forethought! This was for some years the standard adopted (albeit as a defence) in the New South Wales legislation, and has been considered fairly regularly by New South Wales courts in recent years. Recommendation 88 of the Second Report of the National Inquiry was that the standard should be defined by setting out the matters to be considered. Hence the provision now attempts to provide a detailed definition of ‘due diligence’. 27(5) In this section, due diligence includes taking reasonable steps: (a) to acquire and keep up-to-date knowledge of work health and safety matters; and (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e). Examples For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include: reporting notifiable incidents; consulting with workers; ensuring compliance with notices issued under this Act; ensuring the provision of training and instruction to workers about work health and safety; ensuring that health and safety representatives receive their entitlements to training.

It would be wise for every company officer to include this list as a regular agenda item for consideration.47 However, it is important to realise there is always a danger that when an attempt is made to create such a list, other matters that have not been [page 434] contemplated may be omitted. Note that the definition is framed in an ‘inclusive’, rather than ‘exclusive’, way. The use of the word ‘includes’, means that this is not the sole list of matters that can be taken into account in determining due diligence, and allows consideration of any other issues that are relevant. This will allow the courts, as society and community expectations change, to bear in mind developments in understanding of what it would be appropriate for company officers to consider in making safety decisions. 8.42 The statutory list may be compared to some of the key judicial discussions of ‘due diligence’ over the last few years: The ‘due diligence’ defence requires consideration of a range of ‘proactive’ activities whereby safety systems are not only established on paper, but also implemented on the ground, their operation regularly monitored, and specific issues responded to when they are drawn to attention.48

Cases under previous legislation that provide a discussion of these matters will no doubt prove influential on future judicial consideration of the phrase.49 The question of what constitutes ‘due diligence’ in advertising, for example, was dealt with by the Full Court of the Federal Court in Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360, where Bowen CJ and Nimmo J referred to the need to establish an appropriate system, and to take measures to ensure that the system was working.50 Another case where issues of ‘due diligence’ by company officers was canvassed is R v Bata Industries Ltd (No 2) (1992) 70 CCC (3d) 394, a Canadian decision concerning directors’ liability for breach of pollution legislation. Ormston PDJ identified a number of factors which were relevant to ‘due diligence’ by officers: 1. 2. 3.

whether or not the officers had established an ongoing system to monitor safety; whether or not there were reporting mechanisms to ensure that the system was being complied with; and while officers were entitled to place reasonable reliance on reports by responsible subordinates, whether they immediately addressed issues of which they became aware.51

8.43 The issue of ‘due diligence’ under the OHSA 1983 was considered by Maidment J in WorkCover Authority of New South Wales (Inspector Dowling) v Barry John Coster [1997] NSWIRComm 154, where it was found that the following factors all added up to ‘due diligence’. Mr Coster had established safety monitoring procedures and ensured compliance with those procedures; he had devoted company resources to the [page 435] issue, responded quickly to complaints which were brought to his attention, and had demonstrated a personal commitment to safety

by involvement in a safety committee and occasionally performing a personal inspection. A similar approach to the issue of due diligence was found in the judgment of Staunton J in WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corp (Aust) Pty Ltd [2004] NSWIRComm 349.52 While not directly adopting the reasoning in Bata Industries, her Honour seemed to accept the submission that the factors referred to in that decision were relevant.53 She ruled, however, that the director concerned, Mr Smith, had not met the standards set out in that judgment. While a written safety policy was in place in the company, her Honour commented on the need to ensure that the policy was not just on paper but became an ‘entrenched systemic process’ and that steps were taken to supervise compliance with the policy. 8.44 ‘Due diligence’ was also considered in some detail in Inspector Kumar v Ritchie [2006] NSWIRComm 323, where Haylen J defined due diligence in this way (at [177]): … the hallmark of this defence is that the defendant would need to show that he had laid down a proper system to provide against contravention of the Act and had provided adequate supervision to ensure that the system was properly carried out.

In that case Mr Ritchie, a senior manager of the company, who lived in New Zealand, was found guilty under OHSA 2000 s 26 as he had not exercised sufficient care to establish a safe system of work to respond to the hazards created by a dangerous chemical. It is worth setting out the submissions of the prosecution on this point, which Haylen J accepted. In his judgment his Honour noted (at [153]–[154]): Having regard to these authorities, the prosecutor submitted that the statutory defence under s 26(1)(b) required the Court to be satisfied that: (a) there was in place a systematic approach designed to achieve compliance with a regulatory scheme established by the Act and to prevent its contravention; (b) that the system so established was both proper and appropriate so as to achieve the regulatory requirements of the Act and, in particular, was not merely some paper scheme that paid lip service to the Act or merely exaggerated the reality of the system that was in place; and (c) that the system was properly enforced and policed to achieve the

regulatory outcome of preventing contraventions of the Act. It was submitted that, for the defendant to make out the defence, each of these elements had to be established. The defence was not advanced by the defendant emphasising how busy he was in the work of the Group, his geographical remoteness and his lack of daily involvement in the day-to-day operations of the business; precisely those factors made it imperative that the system he put in place or oversaw was proper and

[page 436] adequate to ensure compliance with the Act and that the means of ensuring the system was in force. The evidence showed a number of systems but the reality of the Race site was that there was no qualified or proper auditing, there was no appropriate training in occupational health and safety generally or in risk assessment specifically, and reliance was placed on a system of assumptions. Those administering the system had no means of effectively enforcing it and there was no evidence as to how the enforcement was achieved.

In the end emphasis was placed on the fact that while there were paper systems in place, the actual auditing of compliance was not properly supervised, and there was also no evidence that those who had been appointed to supervise safety in the company had appropriate qualifications and experience. On a number of occasions Mr Ritchie said that he ‘assumed’ that the people he had appointed were doing their jobs. The court obviously found that more was required. He received a personal penalty of $22,500.54 8.45 With respect, this seems a ‘line-ball’ decision in a number of ways. Not only was Mr Ritchie’s conviction fairly harsh, he was unlucky not to have received the benefit of the Crimes (Sentencing Procedures) Act 1999 (NSW) s 10 (which allows the court to find guilt but choose to enter no conviction where there are extenuating circumstances). The prosecution presented a thorough summary of matters that a court should take into account in considering ‘due diligence’, but on reading the facts it is hard to see why Mr Ritchie ought not to have been found to have exercised such diligence. Evidence was accepted that he received regular reports on safety matters from company officers,

had given directions to his divisional managers to monitor safety, made personal inquiries about safety matters when conducting site visits, and appointed people to positions whose job descriptions included the need to monitor safety. There was no evidence, for example, that he was aware of regular problems in the Container Division, or failed to respond when issues were brought to his attention. When considering these points, it appears that this conviction is at the very limit of what is acceptable. On the other hand, the decision certainly sparked interest in professional circles,55 and perhaps it will serve as a strong reminder to senior executives of their responsibilities. However, the courts do need to be careful not to apply the legislation to such an impossibly high standard that a reaction will set in, where those who are duty holders simply abandon their attempts to comply. [page 437] 8.46 Would the result in this case have been different under WHSA s 27? The more detailed list of criteria in s 27(5) may reduce the chance that significant activities that a director did undertake might be ignored. However, it is important to recognise that even under s 27, an officer who delegated the responsibility for safety to a subordinate, but then did not ensure that the subordinate was provided with sufficient supervision, training and resources to do their task, might be found to have failed to act with ‘due diligence’. Under s 27(5)(c), the officer may have failed to see that the company ‘has available for use, and uses, appropriate resources and processes’ if they do not appoint an appropriately qualified safety officer (using the word ‘resources’ to include ‘human resources’ or ‘personnel’). Under s 27(5)(f) a failure to supervise the carrying out of the safety function could be seen as a failure to ‘verify the provision and use of the resources’.56

A helpful discussion of ‘due diligence’ under s 27 can be found in McKie v Al-Hasani and Kenoss Contractors Pty Ltd (in liq) [2015] ACTIC 1. In that case the accused, the project manager for a construction job, knew that a particular site where materials were being stored was not safe due to the presence of hanging electrical power lines near where trucks were to drive. But he failed to secure the site or to ensure that drivers were prevented from going there without taking proper precautions. A driver who had been directed to the site to unload material was killed when the tray of his truck came into proximity to the power lines while unloading. The court commented: 35. As project manager responsible for the Barry Drive project, Mr Al-Hasani was fully aware of the Boldrewood Street compound and indeed, on his own evidence, of the risks associated with the live overhead power lines above it. He did not exercise due diligence in respect to safety compliance. His failures in that respect were multiplicitous. They include, for example, as to sub-section s 27(5)(c), the SWMS was general in nature and inadequate to address the particular risk evident at the Boldrewood compound. Mr Booth was not aware of it. Simply directing that the site not be used by large machines (if in fact such a direction was given) is patently inadequate, particularly given the involvement of others in the project, such as Mr Booth in his capacity as a delivery driver. A further example of the lack of due diligence, as to sub-section 27(5)(e), was the readiness of Mr Al-Hasani to a relinquish responsibility for the identified risk to the foreman, with no process in place to ensure compliance.57

8.47 Another example of a director’s failure to ensure that safety procedures were being implemented in practice, rather than simply ‘on paper’, can be found in a Western Australian case. In Keating v Fry [2012] WASC 15, two directors of a cranemanufacturing [page 438] firm were found to be guilty under the Occupational Safety and Health Act 1984 (WA) s 55.58 That provision, which is different in form but similar in effect to WHSA s 27, provides that a company officer is guilty of an offence where the company has committed

an offence and the offence is ‘attributable to any neglect on the part of’ the officer. The directors were found guilty, not simply by virtue of being directors, but because they were actively involved in the day-to-day operations of the company, and ought to have known that an unsafe system of work had been adopted.59 As well as ‘due diligence’, the other defence that was available under OHSA 2000 s 26 was that the officer ‘was not in a position to influence the conduct of the corporation in relation to its contravention of the provision’. There is no such separate defence under WHSA s 27: presumably, if someone is not in a position to bring influence to bear on company decision-making, they will be able to show that it was not ‘reasonably practicable’ to do more.60 In Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40, the ‘unable to influence’ defence was considered. In that case, evidence suggested that the director of a company that was found to have committed serious breaches of the Act had been overseas for some time. Marks J adjourned the proceedings to allow the director a chance to offer evidence going to the defence; however, the director chose not to offer any such evidence, and was convicted and fined. Under WHSA s 27, a director who chose not to be present in Australia when his company was doing work would presumably find it hard to rebut prosecution evidence that he had not exercised ‘due diligence’ to ensure that the company complied with its WHS obligations. 8.48 In Inspector Aldred v Herbert [2007] NSWIRComm 170, a 13year-old boy who was trespassing on the premises of a hotel was killed when electrocuted by standing on a pipe near the pool. The directors of the company claimed that they were not in a position to influence the safety procedures as they had appointed a manager to look after day-to-day issues. Backman J, however, ruled that this was not sufficient ‘due diligence’: the directors had not specifically addressed safety issues at board meetings, and did not require the manager to report on safety matters or monitor safety as an issue: at [25]. Submissions that the directors were not in a

position to influence the company were also rejected. In subsequent sentencing proceedings, [page 439] Inspector Graeme Keith Aldred v Salamander Shores Hotel Pty Ltd [2008] NSWIRComm 102, the company was fined $150,000 and the individual directors $12,000 each.61 There was also a discussion of what ‘due diligence’ requires in Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163. In that decision Boland P found that due diligence had not been made out where an employee was allowed to carry out certain work without having the relevant training, and where the directors had not properly checked his qualifications. The court said (at 188): The defendants may not have been aware of the use of open hooks. However, they were unable to show that they had adopted a process of review and auditing that might enable them to ensure supervisors and managers were acting in compliance with S&L’s written policy regarding the prohibition of using steel hooks to lift steel plates in the circumstances that occurred on 26 May 2006. The defendants placed much emphasis on the fact that they had written policies regarding the prohibition on open hooks, that they reiterated this policy regularly at tool box meetings and even advised individual employees not to use open hooks. The defendants obviously considered this to be an important safety issue. That being so, one would expect some form of auditing, even by way of casual inquiry, to ensure supervisors and managers were complying with the policy. But there was none.

8.49 Two prosecutions in relation to the one incident demonstrate that, while directors and officers will be liable in the circumstances mentioned, their differing involvement in the events that have caused a risk may lead to their receiving different sentences. In WorkCover Authority of New South Wales v Burn [2005] NSWIRComm 206, the director of a company called Top Container Transport was found guilty pursuant to OHSA 2000 s 26 in relation to an incident that led to the death of a forklift driver. The director was fined $17,500. In WorkCover Authority of New

South Wales v Steel [2005] NSWIRComm 215, the general manager of the same company was also convicted, but was able to show in mitigation that he had a role which was mainly in the financial area, that he had only commenced work with the company four months prior to the accident, and that he had responded to any safety matters which were drawn specifically to his attention. He was fined $5000 in relation to the same incident. In WorkCover Authority of New South Wales v Anywhere Tower Cranes Pty Ltd [2007] NSWIRComm 44, the individuals charged after the collapse of a crane in the Sydney CBD included the sole director of a crane supply company, Ms Ghada Nouh, who testified that she was effectively a secretary in the office, who had no involvement on the ground with the cranes, and had agreed to be appointed as director. The court expressed sympathy for her position but noted that those who take on the management of companies do accept responsibility for seeing to the safety of company employees and others affected by the company’s work. [page 440] In the circumstances, Ms Nouh received a penalty of $9000. Another officer of the company, Mr Gabris, an on-site manager, received a similar penalty, although in his situation the size of the penalty was reduced from what would otherwise have been appropriate due the provisions of the Fines Act 1996 (NSW) relating to his ability to pay. 8.50 An example of a failure of due diligence under the WHSA is WorkCover Authority of New South Wales v Customised Gas Australia Group Pty Ltd v Flynn [2014] NSWDC 361, where a worker was severely burned when gas ignited while venting and purging a gas tanker–trailer inside a workshop: see [16]. The sole director, Mr Flynn, failed to exercise due diligence because he did not ensure that the prosecuted company’s employees, in particular the one

who was injured and his supervisor, were instructed and trained to be aware of the safe work method document that he himself drafted. They should have also been forced to purge and vent the tanker outside and wear appropriate clothing (such as personal protective equipment). A brief comparison, then, of the matters mentioned in s 27(5) with matters raised by previous court decisions shows that, while the new definition in s 27(5) does commendably direct attention to some matters that have not been spelled out explicitly by the courts previously, there is at least one matter to which the courts have directed attention which is not covered by s 27(5). This is the issue of the provision of appropriate supervision to ensure the carrying out of a system. It might be possible for a court to read ‘resources’ in the various paragraphs of s 27(5) as dealing with the matter, but there would be at least some doubt. A detailed study of other cases where ‘due diligence’ has been referred to may reveal other matters not touched on in s 27(5). Still, the provisions provide a good starting point, and so long as they are not viewed as an exhaustive list of matters to be taken into account, a more open-ended approach by the courts will allow important issues to be considered.62 Meaning of ‘ensure’ in s 27 8.51 An unusual feature of s 27 is that the obligation is one to ‘exercise due diligence to ensure’ compliance with the Act [emphasis added]. The meaning of the word ‘ensure’ in WHS legislation seemed to have been settled for a number of years as imposing an ‘absolute’ obligation on a duty holder. Thus, in an often quoted comment early in the history of the ‘Robens-style’ legislation in Australia, Watson J of the New South Wales Industrial Commission, in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470, drew a sharp distinction between the common law duty in the tort of negligence (which is always a duty of ‘reasonable care’), and the statutory duty. His Honour said:

[page 441] Had the legislature intended to restate the common law obligations devolving on an employer to take reasonable care for the safety of his employees, it would have been open for it to have adopted wording such as … ‘shall take all reasonable precautions to ensure’ … In their context and purpose there would seem to be no reason to make any implication that the words ‘to ensure’ are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain.

However, although the drafters used the word ‘ensure’ in the WHSA, it seems that they intended something much closer to the common law standard than to absolute liability. This can be seen clearly in s 17, which, while appearing to define ‘risk management’, in fact seems to be a definition of the word ‘ensure’: 17 Management of risks A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

8.52 A question that arises is: does this unusual meaning of the word ‘ensure’ apply in s 27? Technically, the duty in s 27 is not to ‘ensure health or safety’, but rather to ‘ensure that the person conducting the business or undertaking complies with’ a safety duty. Since the body’s ‘duty’ will usually be one of the safety duties imposed under Pt 2, such as the provision in s 19, then this means that the officer is to ‘exercise due diligence to ensure’ that the body ‘ensures, so far as reasonably practicable’ health and safety. But under s 17 this means ‘eliminate risks so far as reasonably practicable’ or ‘if not reasonably practicable, minimise risks so far as reasonably practicable’. Section 18 then provides a list of factors to be taken into account in determining what is ‘reasonably practicable’. The detailed explication of all these steps is a joy awaiting the court required to apply this concatenation of ‘reasonable

practicabilities’. It must be said that at each step in the lengthy chain (all, it should be remembered, required to be proved by the prosecution to the criminal standard of ‘beyond reasonable doubt’)63 there will be a number of exculpatory factors which can be relied on by officers. If the company can now argue that it ‘did its best’, the officer can now try to argue that all that was required was ‘due diligence’ (which will no doubt be said to mean, ‘I did my best’) to see that it was ‘doing its best’. There is a danger that the word ‘ensure’ will be, in an Orwellian transformation, now denuded of meaning and come to mean effectively ‘we gave it a go so long as it was not too expensive’ or ‘it appeared on the agenda’. [page 442] However, it is encouraging to see that under s 18(e) the court is required to take into account ‘the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk’. The reference to ‘grossly disproportionate’ seems to capture the balance here reasonably well, not allowing a safety precaution to be ignored due to minor cost alone.64

Further Reading On corporate and officer liability B Barrett, ‘Liability for Safety Offences: Is the Law Still Fatally Flawed?’ (2008) 37 Industrial Law Journal 100–18. The Hon T F Bathurst, ‘Insurance Law — A View From the Bench’, Australian Insurance Lawyers Association National Conference, Keynote Address, 19 September 2013; available at .

R Baxt, ‘When Companies Kill’ (1994) 10(7) Company Director 14. S Chesterman, ‘The Corporate Veil, Crime and Punishment: The Queen v Denbo Pty Ltd and T I Nadenbousch’ (1994) 19 Melb Uni Law Review 1064–73. C M V Clarkson, ‘Kicking Corporate Bodies and Damning Their Souls’ (1996) 59 Modern Law Review 557–72. J Clough, ‘A Glaring Omission? Corporate Liability for Negligent Manslaughter’ (2007) 20 Aust Jnl of Labour Law 29–52. J Clough and C Mulhern, The Prosecution of Corporations, Oxford University Press, Oxford, 2002. M Crabtree, ‘Corporate Culpability for Industrial Manslaughter: Finding the “Soul” of the Australian Corporation’ (1994) 22 Aust Business Law Review 376– 81. N Foster, ‘Individual Liability of Company Officers’, in J Gobert and A-M Pascal (eds), European Developments in Corporate Criminal Liability, Routledge Advances in Criminology series, Routledge, London, 2011, Ch 7, pp 114–38. N Foster, ‘Manslaughter by Managers: The Personal Liability of Company Officers for Death Flowing from Company Workplace Safety Breach’ (2006) 9 Flinders Journal of Law Reform 79–111. [page 443] N Foster, ‘Manslaughter in the Workplace’ Workplace Health and Safety Papers, 2016, . N Foster, ‘Mining, Maps and Mindfulness: the Gretley

Appeal to the Full Bench of the Industrial Court of NSW’ (2008) 24(2) Journal of Occupational Health and Safety, Australia and New Zealand 113–29. N Foster, ‘Personal Corporate Officer Liability under the Model Work Health and Safety Bill’, paper presented to the Eighth National OHS Regulatory Research Colloquium, 2–4 February 2010, ANU, Canberra, NRCOHSR WP No 73. N Foster, ‘Personal Liability of Company Officers for Corporate Occupational Health and Safety Breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW)’ (2005) 18 Australian Journal of Labour Law 107–35. N Foster, ‘The CAMAC Report on Personal Liability for Corporate Fault — A Critique from the OHS Perspective’ (2007) 20(1) Australian Journal of Labour Law 112–18. N Foster, ‘You Can’t Do That! Directors Insuring against Criminal WHS Penalties’ (2012) 23 Insurance Law Jnl 109–125. M Goode, ‘Corporate Criminal Liability’ in N Gunningham, J Norberry and S McKillop (eds), Environmental Crime, Australian Institute of Criminology, Canberra, 1995, pp 97–111. D Neal, ‘Corporate Manslaughter’ (1996) 70(Oct) Law Institute Journal 39–41. M Tooma, Due Diligence, CCH, Sydney, 2012. C Wells, Corporations and Criminal Responsibility, 2nd ed, Oxford University Press, Oxford, 2001.

1.

National Review into Model Occupational Health and Safety Laws, First Report (to the Workplace Relations Ministers Council) (October 2008); Second Report (January

2009) available at . See Rec 3(d) of the First Report for recommendations about a wide range of other duty holders. Recommendations 23–36 deal with particular issues picked up by the WHSA in ss 20–26. 2.

3.

4.

5.

6.

7.

8. 9. 10. 11. 12.

For comment on the circumstances in which a court is justified in ‘reading in’ words which are not present, into legislation, see Taylor v The Owners — Strata Plan No 11564 [2014] HCA 9. See under the OHSA 2000, Inspector Spence v Aleksic Carpentry Pty Ltd [2012] NSWIRComm 45 at [30]; Inspector Mason v Graham Allen Chapman [2013] NSWIRComm 71 at [75]. Quoted in M Tooma, Tooma’s Annotated Occupational Health and Safety Act 2000 New South Wales, 3rd ed, Lawbook Co, Pyrmont, 2009, p 59. It should be noted that in the United Kingdom, however, things which might be regarded as part of the ‘premises’ have sometimes been held to be ‘work equipment’ for the purposes of similar legislation: see Beck v United Closures and Plastics plc 2002 SLT 1299 (heavy doors), and PRP Architects v Reid [2006] EWCA Civ 1119 (a lift). Unusually, the Full Bench considered the same issues again in the same proceedings, in Bros Bins Systems Pty Ltd v Inspector Ching [2006] NSWIRComm 287, and reaffirmed its view that the truck in question was ‘plant’ of which the owner still had, to some extent, control. The reconsideration was necessary because there was some doubt about whether the proper procedure had been followed in the previous proceedings. In an odd sequel, the decision of the Full Bench to then remit the proceedings back to the trial judge for further consideration was held to be invalid by the Court of Appeal in Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292. Which is not to say there might not be liability for the repairer if the defect in the equipment was one that was well known to the repairer, commonly found in the equipment, and a clear hazard to the repairer’s employees. For previous research on these so-called ‘upstream duty holders’ see R Johnstone, M Quinlan and M McNamara, ‘Enforcing Upstream: Australian Health and Safety Inspectors and Upstream Duty Holders’, NRCOHSR WP 77, March 2010, available at , No 77. For an important analysis of the contribution of design to safety issues, see E Bluff, Safe Design and Construction of Machinery: Regulation, Practice and Performance, Ashgate, Aldershot, 2015. See . See . For previous discussions of this area see articles by N Foster noted in the Further Reading list at the end of this chapter. See, for example, Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368 at [227]–[229] (McColl JA). See N Foster, ‘You Can’t Do That! Directors Insuring Against Criminal WHS Penalties’ (2012) 23 Insurance Law Journal 109–125. This article was cited by

13. 14.

15.

16.

17. 18.

19.

20.

21.

22. 23.

Bathurst CJ in ‘Insurance Law — A View from the Bench’ [2013] NSWJSchol 35 and also in S O’Neill, A Cheung and S Holley, The Business Case for Safe, Health & Productive Work, November 2014. As noted in the 2012 article, whatever the situation may be with other ‘strict liability’ offences, the United Kingdom decision in R v Northumbrian Water; Ex parte Newcastle and North Tyneside Health Authority [1999] Env LR 715 makes it clear that public policy would invalidate an insurance arrangement to pay a penalty where part of the liability structure of the offence was a failure to exercise ‘due diligence’, the precise words used in WHSA 2011 s 27. See Hillman v Ferro Con (SA) Pty Ltd (in liq) [2013] SAIRC 22. The amendments made by the Occupational Health and Safety Amendment Act 2011 (NSW), noted in Chapter 7 at 7.36, substituted a new s 26 into the OHSA 2000 between 7 June 2011 and 1 January 2012, which was effectively (though not precisely) the same as that in the current WHSA s 27. For a rare example of a discussion of the provision, although the decision itself relates to sentencing, see Leorke v R [2011] VSCA 213; see also Orbit Drilling Ltd v R; Smith v R [2012] VSCA 82. In contrast to OHSA 2000 s 26, where once it had been shown that the accused was an officer and the company had contravened the Act, the onus lay on the accused to make out the defences in s 26 of ‘not able to influence’ or ‘due diligence’. See, for example, Interpretation Act 1987 (NSW) s 21(1): ‘“person” includes an individual, a corporation and a body corporate or politic.’ For a summary of some of this research, see the article by N Foster (2005) noted in the Further Reading list at the end of this chapter and the material noted in B Sherriff and M Tooma, Understanding the Model Work Health and Safety Act, CCH, North Ryde, 2010, pp 29–30. Chapter 3 of that book gives an overview of directors’ liability provisions, including a good review of decisions under (the old form of) OHSA 2000 s 26 and suggestions as to how the new WHSA regime may work. A point made by R Johnstone, ‘Decriminalisation of Health and Safety at Work in Australia’, WP86, National Research Centre for OHS Regulation, March 2012, at 25: see , No 86. See, for example, the successful prosecution against Dominic James Roberts on 5 February 2015: , under February 2015. Under WHSA s 5(3), partners are explicitly deemed to be ‘persons conducting a business or undertaking’, and hence do not need to be included within the meaning of the word ‘officer’ to be liable under the Act. There is a very interesting discussion of the various types of ‘officers’ and ‘directors’ under the Corporations Act 2001 definition, in the decision of the Full Court of the Federal Court in Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 at [28]– [76]. See, for example, Commissioner for Corporate Affairs v Bracht [1989] VR 821, noted below at 8.25. An article by E Smith, ‘Prosecutions of Directors and Others under Section 50 of the New South Wales Occupational Health and Safety Act 1983’, in R Johnstone (ed), New Directions in Occupational Health and Safety Prosecutions: The Individual Liability

24. 25.

26.

27.

28. 29.

30.

31.

32.

33.

34.

35. 36. 37.

of Corporate Officers, and Prosecutions for Industrial Manslaughter and Related Offences, Centre for Employment and Industrial Relations Law, Melbourne, 1996, pp 10–12 discussed some unreported cases. Not the primary United Kingdom statute, the Health and Safety at Work etc Act 1974 (HSWA 1974), but the Fire Precautions Act 1971 (UK). The UK Law Commission Report, Legislating the Criminal Code: Involuntary Manslaughter, Law Com No 237, HMSO, London, 1996, at [8.56], n 76 accepted the principle in this case as applying to the HSWA 1974 s 37(1), the equivalent of OHSA 1983 s 50. See B Creighton and P Rozen, Occupational Health and Safety Law in Victoria, Federation Press, Sydney, 1997, at [708]; also mentioned in V Whalen, ‘The Liability of Individual Officers and Liability for Manslaughter and Related Offences: Three Victorian Cases’, in Johnstone, note 23 above, at 14. See N Foster, unpublished LLM thesis, The Personal Liability of Company Officers for Company Breach of Workplace Health and Safety Duties, February 2003, pp 237–8 for a summary of my analysis of this and other cases on the meaning of ‘concerned in management’. For access to the thesis, see . Her Honour doubtless meant to refer to s 50(1)(b) and (c), s 50(1)(a) having been repealed before the date of the incident in question. Newcastle Wallsend Coal Company Pty Ltd v McMartin [2006] NSWIRComm 339 at [517]. See also N Foster, ‘Mining, Maps and Mindfulness: The Gretley Appeal to the Full Bench of the Industrial Court of NSW’ (2008) 24 Journal of Occupational Health and Safety, Australia and New Zealand 113–29 for further commentary on the appeal. Having dismissed the charges against the company, the trial judge did not go on to further consider Mr Foster’s liability under s 50, the precondition (company contravention) not being met. Discussed above: see 8.26. See the comment in Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297 at [171] that ‘there are no authorities directly in point’ on the issue, all the harder to understand since Staunton J’s judgment is cited previously (at [159]) on another point related to s 50. See the extensive quotes (at [172]) from Bracht, and Griggs v Australian Securities Commission (1999) 75 SASR 307, both referred to by Staunton J in McMartin at [848]–[854]. In Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61, the Full Bench in sentencing applied Crimes (Sentencing Procedure) Act 1999 (NSW) s 10 to Mr Foster and did not enter a conviction. A point made in N Foster, The Personal Liability of Company Officers for Company Breach of Workplace Health and Safety Duties, unpub LLM thesis, February 2004, pp 225–6. See McKie v Al-Hasani and Kenoss Contractors Pty Ltd (in liq) [2015] ACTIC 1 at [42]. Ibid at [50]. While the judgment does not indicate this, there is no discussion of whether he might not have been charged as ‘concerned in management’; presumably it was so

late in the day when the problems with the formal appointment arose, that it was too late for the prosecution to amend the charge (indeed, the defendant (at [126]) used this argument in support of his view that there was no need to ‘stretch’ the legal meaning of ‘director’ beyond its core meaning). 38.

39.

40.

41.

Note that this argument would not be available under the current WHSA s 27, as the extension of the term ‘officer’ is made explicitly by adopting the Corporations Act 2001 (Cth) definition, unlike the former OHSA 2000, where this argument had to be made by inference (the term ‘director’ not being defined). I am grateful to Barry Sherriff for drawing the second of these cases to my attention. See CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 at [60] and Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2010] NSWSC 233 at [231], following Ho on this point. An ‘unincorporated association’ is a group of people who get together for some purposes, but who have not formalised their group by having it ‘incorporated’ into a legal entity. If the group is ‘incorporated’ it is deemed to be a legal ‘person’. ‘Incorporation’ may take place in the case of larger groups under the Corporations Act, or in the case of smaller, non-profit groups under state law such as, in New South Wales, the Associations Incorporation Act 2009 (NSW). There are a number of legal problems generated where a group of people who regularly meet together are not incorporated, and in many cases such a group, if it requires insurance, will be required to incorporate. This is well illustrated by the Victorian decision in Linfox Resources Pty Ltd v R; Downer EDI Mining Pty Ltd v R; Thiess Pty Ltd v R [2010] VSCA 319, where a prosecution of an unincorporated ‘joint venture’ of three companies failed, as the arrangement did not have a separate ‘legal personality’ to be prosecuted. Such a prosecution would now presumably be possible under the WHSA given s 5(2).

42. 43.

Prior to June 2011, the same result was achieved by s 26(4) as it then stood. See R Johnstone and M Tooma, Work Health and Safety Regulation in Australia: The Model Act, Federation Press, Sydney, 2012, p 134.

44.

Under the WHSA NSW s 4, the definition of ‘public authority’ includes ‘(a) a Division of the Government Service, or (b) a NSW Government agency, or (c) a local authority, or (d) any other public or local authority constituted by or under an Act’. See ‘Details of a Successful Prosecution against E165293’, available at .

45.

46. 47.

48.

It gives the first printed use of the word as long ago as Chaucer (circa 1374) Troilus & Criseyde iii. 86 (135) ‘With al my wit and al my deligence’. B Sherriff and M Tooma, Understanding the Model Work Health and Safety Act, CCH, Sydney, 2010, pp 33–5 offer some practical tips on dealing with the issues listed. See also M Tooma, Due Diligence, CCH, Sydney, 2012. N Foster, ‘Recent Developments in Personal Liability of Company Officers for Workplace Safety Breaches — Australian and UK Decisions’, paper presented to the Seventh National OHS Regulatory Research Colloquium, Canberra, 4 and 5

49. 50. 51.

52.

February 2009, NRCOHSR, Working Paper No 63, p 31. See also the discussion of due diligence in J Clough and C Mulhern, The Prosecution of Corporations, Oxford University Press, Oxford, 2002, pp 151–8. (1978) 32 FLR 360 at 363, 383. (1992) 70 CCC (3d) 394 at 429. For another case dealing with ‘due diligence’ in a consumer context, see Carey v Commissioner for Consumer Protection [2013] WASCA 195. This approach was approved in response to the Australian Capital Territory WHSA legislation: McKie v Al-Hasani and Kenoss Contractors Pty Ltd (in liq) [2015] ACTIC 1 at [36].

53. 54.

[2004] NSWIRComm 349 at [130]. See [2006] NSWIRComm 384 for sentencing proceedings. It is perhaps worth noting that proceedings flowing from the same incident against another company officer, the division general manager, Inspector Kumar v Rose [2006] NSWIRComm 325, resulted in a fine of $18,500 after a guilty plea at an early stage of the proceedings.

55.

See, commenting on the decision, J Catanzariti, ‘Danger at Work: Directors Face Strict OHS Liability’ (2006) December Law Society Journal 52–54; S Nicol, ‘Directors Beware: Personal Liability for Occupational, Health and Safety Breaches’ (2007) 2 Keeping Good Companies 98–100; S Nettleton, ‘OHS Due Diligence — A Guide for Directors and CEOs’ (2007) March Company Law & Governance Update 5–8, available at in the ‘Publications’ area. See B Sherriff and M Tooma, note 47 above, p 47: ‘Applying the new due diligence test, it is not clear that the Ritchie case would have been decided differently.’

56. 57.

58. 59.

60.

61.

It should be mentioned, as noted above, that Mr Al-Hasani was not convicted under s 27 as the court found that he was not a relevant ‘officer’ of the company. But the court ruled that, had he been such, he would have been guilty of a lack of due diligence. It seems he could have been charged in the alternative as a ‘worker’ under s 28, but apparently was not: at [51]. The directors’ appeal, Fry v Keating [2013] WASCA 109, was unsuccessful in relation to questions of criminal liability. As noted, on appeal (see note 58) the guilt of the officers was confirmed. The Court of Appeal, however, overturned a lower judge’s decision that the fine could be apportioned between the company and the officers, holding that the offence committed by the officers was a different offence to that committed by the company (it required the additional element of ‘neglect’). They restored substantial penalties of $45,000 handed down by the magistrate at first offence to each director. For a decision dealing with the ‘unable to influence’ defence, see the unusual situation in Inspector James v Sunny Ngai [2007] NSWIRComm 203, where other directors were completely under the legal authority of the ‘governing director’. Similar comments about the inability of directors to delegate away their responsibility to ensure that their company considers safety are to be found in WorkCover Authority of New South Wales v Akerman-Apache (Joint Venture) Pty Ltd

62.

63. 64.

[2006] NSWIRComm 370 at [43]. It may also be queried why the list of ‘examples’ of a body’s ‘duties or obligations’ under s 27(5)(e) has been included. While all are correct, the list could be expanded greatly and by matters of perhaps more importance, and there may well be a tendency of managers to focus on this list as opposed to the full range of issues that should be attended to. As reaffirmed by the High Court of Australia in relation to the similarly worded Victorian legislation, in Baiada Poultry Pty Ltd v R [2012] HCA 14. For a recent reference to this test in interpreting ‘reasonably practicable’ in a United Kingdom safety statute, see the comments of Lord Kerr in Baker v Quantum Clothing Group Ltd [2011] UKSC 17 at [184]: ‘for the defence to succeed, the employer must establish a gross disproportion between the risk and the measures necessary to eliminate it. In the words of Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704 at 712, “the risk [must be] insignificant in relation to the sacrifice”’ [emphasis added]. (His Lordship was in dissent, but this comment seems to be perfectly consistent with the reasoning of the majority.)

[page 445]

9 CRIMINAL WHS LAW: OTHER DUTIES AND ENFORCEMENT

Aims The aims of this chapter are: to explore the obligations imposed under the harmonised legislation on workplace participants who are workers or otherwise present in the workplace; and to outline the enforcement mechanisms, penalties and sentencing issues that will arise under the harmonised legislation.

Objectives After completing this chapter, you should be able to: identify possible breaches of the detailed obligations under ss 28–29 of the harmonised legislation given a particular workplace situation; describe the issues that are raised by the defence of ‘reasonable practicability’; and understand the enforcement options that may be available

for breaches of the legislation.

Safety duties owed by workers and others 9.1 In previous chapters it was noted that there are many duties imposed on ‘persons conducting a business or undertaking’ (PCBUs) under the Workplace Health and Safety Act 2011 (NSW) (WHSA) Pt 2 Divs 2 and 3. But those who work in the businesses, and those who may be present at a workplace as a casual visitor or otherwise, also owe safety duties, under Div 4. In this chapter we will consider this issue as well as a range of other obligations imposed by the WHSA, and some general questions raised by the position of volunteers and community organisations. We will then provide an overview of enforcement and sentencing options under the WHSA. [page 446]

Worker’s duty: s 28 9.2 WHSA s 28(b) imposes a duty on a worker to ‘take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons’. It also provides in s 28(a) a duty that the worker ‘take reasonable care for his or her own health and safety’. We have seen previously (at 7.32) that the word ‘worker’ is widely defined, so that a duty is now imposed on not just paid employees, but all those within the definition, including contractors and volunteers. The Occupational Health and Safety Act 2000 (NSW) (OHSA 2000) s 20 imposed a similar statutory duty of care on an employee to ‘take reasonable care’ for others at the workplace. (It

did not, however, impose the duty to look out for one’s own safety.) ‘Reasonable care’ is a different and arguably a lesser standard than is imposed on a PCBU — which requires ‘ensuring … so far as is reasonably practicable’. In many ways it is a repetition of the common law standard of negligence. It no doubt incorporates the notions of ‘reasonableness’ and ‘foreseeability’. What is ‘reasonable’ will presumably also take into account the limited power of an employee or worker to change systems of work, and other matters related to the situation of a worker, such as limited resources to implement safety precautions, or limited knowledge as to what precautions would be appropriate.1 9.3 The previous OHSA 2000 s 20, and the equivalent former s 19 of the Occupational Health and Safety Act 1983 (NSW) (OHSA 1983), were, however, used on a number of occasions. In Inspector Callaghan v Starr (1992) AIHSW ¶52-909, for example, an experienced roof plumber was successfully prosecuted for allowing a less experienced workmate to step onto brittle asbestos cement roofing without a warning.2 It is worth stressing that the fact that an individual worker may themselves be guilty of a WHSA s 28 offence will not exonerate the employer or PCBU from a failure that they may have been guilty of. An employer has always been required to consider the possibility that employees or others may be careless. In relation to any one incident, there may be prosecution of as many parties as are relevant who have failed to fulfil duties that they owed, regardless of whether or not other parties have also failed in their duties: see WHSA s 16. An example of this occurred in Inspector Rowe v Stephensons Cranes Pty Ltd and Soltau [2010] NSWIRComm 68, where both a contracting company and one of its employees were charged in relation to a fatality (although due to [page 447]

perceived defects in the pleadings, the matter was sent back for further consideration before proceeding for sentencing). There was a successful 2014 prosecution under s 28 of the Workplace Health and Safety Act 2011 (Qld) regarding a worker who was a project officer in charge of bridge repairs that involved asbestos removal. The defendant did not act upon tests that were positive for asbestos in relation to certain materials.3

Duty owed by ‘other persons’: s 29 9.4 The WHSA, in s 29, introduces a new category of duty holder not dealt with in the former legislation, described as: ‘A person at a workplace (whether or not the person has another duty under this Part).’ In other words, this seems to be a ‘catchall’ provision, which introduces a ‘minimum’ standard of care for anyone who enters a workplace. The duties imposed are to: 29 … (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

It is not clear how broadly the courts will read this provision. It does go beyond what had previously been thought to be the province of workplace safety law, imposing obligations, for example, on members of the public who are present in workplaces, such as shopping centres or public libraries, to take care not to adversely affect the safety of fellow members of the public and of those who are working there.

Other duties 9.5

There are a number of other miscellaneous obligations

imposed by the WHSA. Some provisions of the former OHSA 2000 Div 3 imposed other duties ancillary to safety: for example, a duty not to interfere with or damage safety gear (s 21); a duty not to impose charges on employees in relation to safety requirements (s 22); and a duty not to victimise or harass someone for making complaints about safety or for belonging to an OHS Committee (s 23). [page 448] While the WHSA does not seem to contain any provision directly corresponding to former s 21,4 it does replicate former s 22 in WHSA s 273. The duty not to victimise or harass someone for involvement in safety actions has now been expanded and is spelled out in detail in WHSA Pt 6, dealing with ‘discriminatory, coercive and misleading conduct’. There were also other minor offence provisions in different parts of the previous legislation, which have been replicated in the WHSA. For example, OHSA 2000 s 87 imposed an obligation on the employer to ensure that the plant involved in a ‘serious incident’ was not moved or interfered with before the WorkCover Authority had a chance to inspect it. This operated in conjunction with ‘incident notification’ provisions. Under the WHSA, Pt 3 now requires notification under s 38 of ‘notifiable incidents’, defined in s 35, and also imposes an obligation under s 39 to preserve an ‘incident site’ until it can be inspected, so far as possible. In WorkCover Authority of New South Wales v 4 Lift N Pty Ltd [2015] NSWDC 150 fines were imposed under s 38 (fail to notify) and s 39 (interfere with site of accident) to a total of $20,000. The court commented (at [3]) that: … persons under a statutory obligation should not think that they may avoid notifying WorkCover or not disturbing the scene if they satisfy themselves that in taking such a course nothing will be lost. To allow that would offer incentive to

persons to continue to work after an incident if they thought no evidence was being lost or investigation hampered.

Duty to consult 9.6 There are extensive consultation procedures laid out in the WHSA under Pt 5. Section 47 requires that a PCBU must: 47 Duty to consult workers … so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Again, because of the expanded scope of the word ‘worker’, this duty is now extended beyond ‘employees’ (as in former OHSA 2000 s 13) to the whole group of people who ‘carry out work’, including contractors, employees of contractors, and volunteers.5 [page 449] WHSA s 46 now adds a new duty to consult other duty holders in relation to matters of shared responsibility.

General issues concerning volunteers and unincorporated associations 9.7 It is worth noting how the legislation deals generally with ‘volunteers’ and unincorporated associations. In Chapter 7 at 7.32 and Chapter 8 at 8.36 ff we have seen that: Under s 5(7) a ‘volunteer association’ (where nobody is paid to do the work) will not itself be a PCBU. However, ‘unincorporated associations’ in general may be potentially liable as a PCBU under s 5(2).

Under s 7(h) a ‘volunteer’ may be a ‘worker’, so that a risk to the volunteer created by a PCBU may mean a breach of a provision of the Act such as s 19(1); in addition, this will mean that volunteers have duties under the Act in s 28 (‘workers’ to take reasonable care of themselves and others), and (as ‘persons at a workplace’), under s 29.6 A volunteer under s 34(1) cannot be prosecuted under Pt 2 Div 5 for a ‘health and safety’ breach, except for their liability under ss 28 and 29. 9.8 There are a number of other duties under the Act outside Pt 2 (and hence not subject to the ‘immunity’ given volunteers under s 34), which extend to parties other than those who conduct a business or undertaking. But whether those other duties could extend to unincorporated associations is currently a difficult question. The general format of these provisions is to impose a duty on a ‘person’, and then to specify penalties that are divided between ‘individuals’ and ‘bodies corporate’. For example, s 42 states: 42 Requirements for authorisation of plant or substance (1) A person must not use plant or a substance at a workplace if: (a) the regulations require the plant or substance or its design to be authorised; and (b) the plant or substance or its design is not authorised in accordance with the regulations. Maximum penalty: In the case of an individual — $20 000 In the case of a body corporate — $100 000.

The obligation is imposed on all ‘persons’ (not ‘persons conducting a business or undertaking’) so the exemption in s 5(7) applying to volunteer association PCBUs does not apply. Arguably, an unincorporated association, for example a club, might ‘use a [page 450]

plant or substance at a workplace’ contrary to the provision. But the difficulty is that an unincorporated association is neither an ‘individual’ (the word invariably refers to a human being), nor is it a ‘body corporate’. So the conclusion may either be that parliament does not intend this provision to apply to clubs, or else that while the club has a duty, it cannot be prosecuted, as parliament has determined no maximum penalty. All in all it would seem preferable for some specific decisions to be made about the application of other provisions of the Act outside Pt 2 to unincorporated associations, rather than leaving the matter in the current state of uncertainty.

Defence of ‘reasonable practicability’ 9.9 Technically there are no ‘defences’ as such for the major safety duties under the WHSA.7 The OHSA 2000, for example, while imposing an ‘absolute’ obligation to ensure safety, allowed for two possible defences in former s 28. Section 28 provided as follows: Former OHSA 2000 s 28 Defence It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

The WHSA primary duty provision (s 19) and other major duty provisions (ss 20–26) take the approach of ‘rolling up’ these former defences into one phrase — ‘so far as is reasonably practicable’ — which is stated to be one of the elements of the offence. Hence the issue is now one that must be proven beyond reasonable doubt by the prosecutor, rather than one that must be raised by the defendant.

9.10 Explicit guidance on the meaning practicable’ is now provided by WHSA s 18:

of

‘reasonably

[page 451]

18 What is ‘reasonably practicable’ in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimize the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

This list requires consideration of similar issues to those that are considered in the ‘calculus’ of negligence (determining whether there has been a breach of a common law duty of care) discussed in Chapter 5. Apart from the guidance that can be sought in the common law cases, however, the New South Wales Industrial Court applied the ‘reasonably practicable’ standard in a number of cases. Following is a discussion of some of these cases, as they are likely to be influential in future consideration of the issue. 9.11 OHSA 2000 s 28 was a very important provision. The Full Bench of the Industrial Court of New South Wales in St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 39 commented (at [22]):

The defences afforded by s 28 are vital to balance the absolute criminal liability created by the Act and their significance should not be undervalued. They must be given due consideration, and, should the court come to the view that they do not apply, adequate reasons must be given.

The High Court also made comments about the equivalent scheme of the OHSA 1983 in Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [18]: The duties referred to in ss 15 and 16 cannot remain absolute when a defence under s 53 is invoked. The defence allows that not all measures which may have guaranteed against the risk in question eventuating have to be taken. The measures which must be taken are those which are reasonably practicable. The term is not defined in the OH&S Act, but it may often involve a common sense assessment1 …

[page 452] The OH&S Act delimits the obligations of employers by the terms of the defences provided in s 53.8 1.

Chugg (1990) 170 CLR 249 at 260.

The High Court also made some important comments on the phrase ‘reasonably practicable’ in Baiada Poultry Pty Ltd v R [2012] HCA 14. The majority commented (at [15]): The words ‘so far as is reasonably practicable’ direct attention to the extent of the duty. The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.

In that case the court said that the jury should have been given the opportunity to decide whether or not it was ‘reasonably practicable’ for the accused employer company to have exercised more detailed control over the actions of one of its contractors.9 The Western Australian Court of Appeal reiterated previous

comments on reasonable practicability in a case involving that state’s non-WHS mine safety legislation.10 This included that the employer must take into account the possibility of thoughtlessness, inadvertence, or carelessness, in work; that postaccident changes to the workplace do not prove breach of duty nor are they are an admission of liability; and that employees should be warned of unusual or unexpected risks rather than usual or expected risks.11 Consistent with this, the New South Wales District Court found that it does not reduce a defendant’s culpability to simply warn a worker of a potential hazard, where other precautions against that hazard could be taken: (Re Boles) WorkCover Authority of New South Wales (Inspector Pile) v Fletcher International Exports Pty Ltd [2014] NSWDC 181 at [14]: It is the duty of the defendant to guard against injuries to inadvertent or even disobedient employees attempting to conscientiously carry out their work.

In Workcover Authority of New South Wales v Eastern Basin Pty Ltd [2015] NSWDC 92 (Eastern Basin), a stevedore was killed by a collapsing stack of aluminium ingots, known [page 453] as a Gauchi Pack. The prosecutor could not prove that the measures particularised in the charge were reasonably practicable. The prosecutor asserted that the defendant knew that the Gauchi Packs were ‘inherently unstable’ due to their height-to-weight ratio and that the failure to provide additional strapping before the incident was unreasonable. Curtis J disagreed with this assertion, finding that the defendant had adequately responded in the situation to reduce any further risks prior to the incident.12 None of the measures advocated for by the prosecution, including additional strapping, was reasonably practicable, and it was held that the defendant could reasonably rely on the Newcastle

Stevedores’ skill and expertise to ensure that the Gauchi Packs were delivered to the wharf and safely loaded.13 9.12 The first part of the former OHSA 2000 s 28 defence (‘not reasonably practicable’) was sometimes used where the costs of preventing the accident would have been out of all proportion to the gravity of the risk and the probability of its occurrence. As with prosecutions under the WHSA, the factors that the court considers in a common law action for negligence were often relevant. So the United Kingdom court in Edwards v National Coal Board [1949] 1 KB 704 said (at 712 per Asquith LJ): ‘Reasonably practicable’ … seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them — the risk being insignificant in relation to the sacrifice — the defendants discharge the onus on them.

In Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 260, the High Court made the following comments about what is ‘reasonably practicable’: The questions of safety and practicability, in many cases, raise issues of common sense rather than special knowledge. (See Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362, at p 368, per Taylor and Owen JJ. See also Australian Oil Refining Pty Ltd v Bourne (1980) 54 ALJR, at pp 193–194; 28 ALR, at pp 532–533.) In some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk, thereby giving rise to a strong inference that an employer failed to provide ‘so far as is practicable’ a safe workplace. In other cases the same inference will arise from the identification of some method which would remove or mitigate a perceptible risk or hazard. And, in such cases, that inference might well be further strengthened by the failure of an employer to call evidence as to matters, such as cost and suitability, peculiarly within his knowledge. (See Jones v Dunkel (1959) 101 CLR 298.)

9.13 The proper interpretation of former OHSA 1983 s 53(a) (the same defence) was considered by the Full Bench of the Industrial Relations Court in WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd [2002]

[page 454] NSWIRComm 20. The Full Bench adopted the earlier analysis of the provision made by Walton VP in the following passage (at [71]): Walton J, Vice-President recently dealt with the s 53(a) defence in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182. After considering the decision of the High Court in Slivak v Lurgi (Aust) Pty Ltd (2001) 75 ALJR 481; 103 IR 52, his Honour held, at 206–207: It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector MayoRamsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (at 259) and Austin Rover Ltd v Inspector of Factories (at 627) per Lord Goff and at 635–636 per Lord Jauncey of Tullichettle. At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. We consider the above comments by his Honour correctly state the position as to this defence. [emphasis added]

9.14 This statement of principles was reaffirmed as valid by the Full Bench in St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 39 at [27].

In other words, the ‘calculus’ considered in Chapter 5 (in the area of ‘breach’ in the law of negligence) was also applied here in this criminal context to the question of whether it was ‘reasonably practicable’ to avoid a risk. The fact that the particular risk will, in prosecutions under the WHSA, usually involve serious bodily harm to a worker, means that the defendant will have a high standard to meet. In Bultitude a worker was injured when a large rubbish skip that had been placed on a recently constructed [page 455] pier fell on him when the pier collapsed. The Full Bench overturned the decision of a magistrate to acquit, holding that the possibility of collapse of the pier was clearly ‘foreseeable’, and that there were a number of reasonably inexpensive and effective precautions that could have been taken to prevent workers being put at risk from the pier collapsing. As noted previously, it was for the defendant in prosecution under the OHSA 2000 to establish the matters required under former s 28. But, apart from this question of onus of proof, the same issues will arise under the WHSA. 9.15 For another discussion of when precautions are ‘reasonably practicable’, in the context of the electrocution of a welder (although under a slightly different statute) see the decision of Heenan J in Tenix Defence Pty Ltd v Maccarron [2003] WASCA 165. The Full Court of the Supreme Court of South Australia in Dinko Tuna Farmers Pty Ltd v Markos [2007] SASC 166 commented in some detail on the phrase ‘reasonably practicable’ as it appeared in the South Australian legislation. The court (at [38]) noted that: What is ‘reasonably practicable’ is a question of fact for the trial Magistrate. Complaints before the Industrial Court and Magistrates Court under section 19(1) typically may be expected to involve consideration of matters such as: the magnitude of the potential harm; the likelihood that harm will arise; the availability of any measures that could be taken to eliminate or minimise the risk; the cost and

time involved in those measures being taken and their effectiveness in addressing the risk.

The court commented (at [42]) that these issues were similar to those which arose to be considered in common law negligence claims, but that it would be wrong to import all elements from the common law into the statutory standard; in the end the standard in the statute had to be applied, and this may well be a higher standard than would be applied in a common law claim. 9.16 In the prosecution resulting from the Gretley mine disaster (see 8.26), McMartin v Newcastle Wallsend Coal Pty Ltd [2004] NSWIRComm 202, the OHSA 1983 s 53(a) defence proffered by the company—that it was not ‘reasonably practicable’ to have done anything else than rely on the map supplied by the department — was rejected, Staunton J holding there was a clear foreseeable risk of grave injury if the location of the previous workings was not accurately researched and identified. Her Honour held that given the serious nature of the risk the company should have adopted a ‘proactive’ approach to ensuring the accuracy of the map and researched further: at [802]–[803]. In any case, it should also have had precautions in place in case the map turned out to be inaccurate: at [816]. On appeal in Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339, the Full Bench agreed that the s 53(a) defence had not been made out. The majority (at [154]–[212]) reviewed in some detail the expert evidence of Mr Adam and Professor Thomas, called by the prosecution, who both effectively testified that a competent surveyor reading the DMR maps would have noticed a number of anomalies, and, especially given the potentially disastrous consequences of those maps being in error, would have undertaken further research to determine whether or not the maps were accurate. Marks J (at [701]) agreed with the majority judgment that Staunton J was correct to conclude that the

company did not do what was ‘reasonably practicable’ in the circumstances. [page 456] 9.17 The second paragraph of former OHSA 2000 s 28 (‘no control’) was usually raised where the negligence of the employee themselves was involved. The success of the defence depended on the employer being able to show that this negligence was something that could not have been prevented. Cases decided under this limb will also raise issues of ‘practicability’ similar to those raised under the WHSA. It was not enough, the courts said, simply to say that the employee was at fault — the employer would need to show that it was not in any way a contributor to the fault, perhaps by not providing adequate supervision. In Turner v South Australia (1982) 42 ALR 669, the High Court held that an employer must be prepared to take account of the fact that employees are sometimes careless and ignore orders. However, to succeed in a defence based on OHSA 2000 s 28(b) it must have been shown that precautions against the eventuality were ‘impracticable’. As Marks14 pointed out in relation to OHSA 1983, there seemed to be a deliberate difference between ‘not reasonably practicable’ in s 53(a) and this phrase in s 53(b) (which was then reflected in s 28). The word ‘impracticable’ was not qualified by ‘reasonably’ or any such word; as a result it imposed a fairly high standard, approaching the level of physical impossibility, before the defence could be made out. Marks points to the case of Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 as an illustration of this high standard. A worker was cutting a pipe using a grinding machine and was injured when some gas inside the pipe exploded. The employer produced evidence that in 10 years of operation such an explosion had never previously occurred. The Industrial Commission rejected this as an adequate defence; they held that it would have been

very easy to institute a system whereby the accident could have been prevented, and as a result the employer could not show it was ‘impracticable’ to have provided against it. 9.18 The Full Bench took a similar approach to the s 28(b) defence in St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 39 at [67]–[68] (St Hilliers): [T]he notion of ‘impracticable’ is distinct from ‘reasonably practicable’ found in s 28(a) and … imposes a higher standard. It requires the person seeking to rely on the defence to show that, in the particular circumstances of the offence, it was not practical to have made provision — or taken action — to avert the causes of the commission of the offence. This is not to be judged by reference to an objective reasonableness notion but rather whether in the circumstances of the particular case it was practical to have done more. Nevertheless, the approach to this question will in some respects be similar to the approach taken in determining whether it was reasonably practicable for a person to comply with a provision of the Act under s 28(a) as it will involve a balancing of considerations of what more the person could have done to avert the prospect of the cause occurring against the effort, trouble, cost and difficulty that would have been required to have taken that action. However, given the omission of the reference to ‘reasonable’, we consider that less focus is required on the cost of

[page 457] the additional measures and more on whether, in the circumstances, it was feasible that further action could have been taken. The critical question is whether, in the circumstances, it was practical to take those additional measures. [emphasis added]

9.19 If there is a difference between ‘reasonably practicable’ and ‘practicable’, as the above decisions suggest, then those cases under the former legislation relating to s 28(b) (as opposed to former s 28(a)) may not be applicable to the WHSA (which uses the ‘reasonably practicable’ standard). However, it may (with respect) be doubted whether there was ever a really clear distinction. Indeed, since in the quote from St Hilliers above the Full Bench suggested that the treatment of ‘cost’ was one of the factors in differentiating the two standards, and since under WHSA s 18(e) the cost may only be taken into account where it is

‘grossly disproportionate’, it could be argued that the WHSA standard is the same as that described in St Hillers. Kirkby v A & MI Hanson Pty Ltd (1994) 55 IR 40, where a brick wall collapsed due to a gust of wind, is an illustration of the approach the courts took to OHSA 1983 s 53. The defendant claimed that since the accident was due to the wind, it was a matter over which he had no control, and therefore the defence under s 53(b) was made out. Hungerford J noted (at 54): … the paragraph requires the defendant to make out each of the two elements contained in it … The defendant, it may be accepted, had no control over the wind and its strength; but that was not what caused the risks here to health and safety. There would probably have been no detriment to health or safety if persons had been kept away from the walled area — that was within the defendant’s control; the weakened and unsound piece of timber should not have been used by the defendant; or, alternatively, the configuration of the bracing should have been strengthened by the defendant … The first limb of the s. 53(b) defence is not, therefore, made out. The whole defence therefore fails.

While it was not easy to establish a defence under s 53 (or later s 28 OHSA 2000), it was possible,15 as illustrated by Inspector Page v Metropolitan Demolitions Pty Ltd (CIM Miller, 94/1660, 30 May 1995, unreported).16 An employee of a demolition company had been given very clear instructions not to work on the roof of a warehouse being demolished without a safety harness. The worker was in a scissor lift near the roof when he noticed some roof sheets moving in a strong wind. He decided to go onto the roof to get them without putting on his harness, and while on the roof fell off [page 458] and was injured. The Chief Industrial Magistrate held that the defence under s 53 was established, as there was nothing the employer could have done to prevent the momentary decision of the employee.

Penalties and enforcement 9.20 As criminal legislation, the WHSA sets up a careful structure of penalties and mechanisms for enforcement and prosecution. We look first at the general structure then examine in more detail the most serious level of penalty. This is followed by a consideration of other matters concerning prosecution and sentencing.

Penalty structures 9.21 Some general features of the penalty structures under the WSHA should be noted. The main ‘health and safety duties’ are defined in Pt 2 Divs 2, 3 and 4 (ss 19–29) of the Act. Penalties for breach are then dealt with in Div 5. There is a structured progression, and a decline in severity of penalties, from the most serious offences (Category 1) involving ‘reckless conduct’ and a risk of serious harm (‘a risk of death or serious injury or illness’), under s 31; through offences where there has been a less ‘reprehensible’ breach (Category 2) which has still exposed someone to a risk of serious harm, under s 32; to a general category (Category 3) where there has simply been a failure to comply with the Act, under s 33. Under each option there is a further three-fold division of penalty, with the highest penalty being reserved for a ‘body corporate’; a mid-range penalty for ‘an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking’;17 and the lowest penalty for an offence committed by an individual who does not fall into what might be loosely called this ‘managerial’ category. 9.22 When considering the situation of officers as an example, penalties may be summarised as in Table 9.1 below. Table 9.1: Penalties prescribed for breach of health and safety duties under WHSA Pt 2 Div 5: offence committed by ‘manager’18

Section 31, Category 1 — Reckless conduct without reasonable excuse exposing individual to risk of death or serious harm $600,000 or five years’ imprisonment

Section 32, Category 2 — Failure to comply with duty exposing individual to risk of death or serious harm $300,000

Section 33, Category 3 — Failure to comply with duty

$100,000

The imposition of a more severe penalty upon a ‘managerial’ accused is a new feature of the WHSA, in comparison to previous state legislation. However, some precedent may be seen in the previous situation under the OHSA 2000 s 20, where an employee [page 459] (even one with managerial responsibilities) was subject to a maximum penalty of 30 penalty units (then $3300) whereas an individual employer guilty of a breach of s 8, for example, would have been subject to a maximum penalty of 500 penalty units (see s 12(d)), then $55,000. Under the OHSA 2000, an officer of a corporation who was convicted under former s 26 would usually only face the maximum penalty applicable to an individual employer, in other words, $55,000.19 9.23 How does the WHSA change things? A New South Wales manager who might have faced a $55,000 penalty under OHSA 2000 s 26 will now face a potential $600,000 penalty (or five years’ imprisonment) under WHSA s 31 if they have been reckless and if there was a risk of death or serious injury. Perhaps the better comparison here, however, is with the previous OHSA s 32A dealing with reckless behaviour causing death: see 9.27 below. Under that previous New South Wales law the maximum financial penalty was $165,000 (1500 penalty units) or five years’ imprisonment. Hence, under the new legislation, there is a substantial increase in possible penalty, though one that seems appropriate if recklessness has resulted in a worker’s death.

In the more common case where recklessness is not present, then the difference between the situation of a New South Wales manager under the former law and that under the WHSA will hinge (apart from the previously noted issues about burden of proof) entirely on the nature of the risk to which the relevant individual has been exposed. If the officer’s failure of due diligence has resulted in the company exposing someone to a risk of death or serious injury or illness, the possible liability of the officer will be increased from the former maximum of $55,000 to a new level of $300,000. In other cases, where the risk is less serious, but there is still a breach of the Act, the penalty will now be $100,000. These seem to be reasonable levels given the differing elements of culpability and risk. 9.24 One final oddity concerning penalties for officers should be noted. Section 27(2) and (3) of the WHSA provide as follows: 27 Duty of officers … (2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence. (3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

[page 460] Section 27(2) seems straightforward; it simply reinforces the fact that there are differential ‘managerial’ penalties in Div 5. But s

27(3) seems odd. At first glance its meaning appears to be that, where other provisions of the Act outside Divs 2–4 are breached, and there is no penalty explicitly provided for an ‘officer’ (such as, for example, in s 42), then the officer will be subject to the penalty applicable to an individual. However, this theory falls down because the subsection refers specifically to offences ‘under s 33’. Section 33 is part of Div 5, and it deals with breach of a ‘health and safety duty’. This particular phrase is defined in s 30 (for the purposes of Div 5) as meaning a breach of either Divs 2, 3 or 4 of Pt 2. So it seems that the class of obligations ‘imposed under a provision other than a provision of Division 2 or 3 or this Division (ie Div 4)’ [emphasis added], and which are dealt with by s 33, is an empty class. It may be that the drafters of s 27(3) assumed that s 33 deals generally with offences under the Act. But this does not seem to be the case.

Reckless conduct risking death or serious injury: WHSA s 31 9.25 By the way that its penalty structure is organised in Pt 2 Div 5, the WHSA sends an important signal that, while ‘ordinary’ carelessness causing harm in the workplace is very serious, there will be additional significant punishment where there has been reckless conduct leading to a risk of death or serious injury. In this way the Act contains what is sometimes called a ‘corporate manslaughter’ provision. 31 Reckless conduct — Category 1 (1) A person commits a Category 1 offence if: (a) the person has a health and safety duty, and (b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and (c) the person is reckless as to the risk to an individual of death or serious injury or illness. Maximum penalty:

in the case of an offence committed by an individual (other than as a (a) person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) — $300,000 or 5 years imprisonment or both, or (b) in the case of an offence committed by conducting a business or undertaking or conducting a business or undertaking imprisonment or both, or (c) in the case of an offence committed $3,000,000.

an individual as a person as an officer of a person — $600,000 or 5 years by a body corporate —

(2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.

The ongoing controversy over an appropriate response to workplace death provides the background to this provision. Commentators have made the point for many years [page 461] that causing death by carelessness can amount to the criminal offence of manslaughter. Yet prosecutions in Australia for manslaughter resulting from death in the workplace have been very rare, and even more rarely have those prosecutions succeeded. The call has often been made for companies generally, and their managers in particular, to be subject to the more severe sanctions of manslaughter where their behaviour has led to death in the workplace.20 9.26 There are a number of options for either taking such prosecutions under general criminal law or for amending the law. Arguably it was already possible without amending the law any further for companies and company officers to be prosecuted for common law manslaughter in relation to workplace deaths. The common law of manslaughter includes the category of ‘manslaughter by criminal negligence’. In R v Lavender [2005] HCA 37, the court clarified that this offence does not require the proof of ‘malice’, and generally accepted the statement of the law in the

Victorian decision of Nydam v R [1977] VR 430 that the offence will be established where someone does an act which causes the death of another person, that act being done: … in circumstances where the doing of it involves a great falling short of the standard of care required of a reasonable man in the circumstances and a high degree of risk or likelihood of the occurrence of death or serious bodily harm if that standard of care was not observed, that is to say, such a falling short and such a risk as to warrant punishment under the criminal law.21

But there is no doubt that in the past, actions against companies for manslaughter have sometimes failed because of difficulties — either real or imagined — in determining the ‘intent’ of the company.22 In addition, it may sometimes be difficult to bring an action for manslaughter against a company officer, because there are difficult questions raised about whether the officer personally (as opposed to the company) owes a duty to the individual employee.23 Recently, however, the New South Wales Court of Criminal Appeal in R v Moore [2015] NSWCCA 316 ruled that there are some circumstances where an officer of a company may owe a duty of care to a worker for the purposes of the law of negligent manslaughter. While the facts of that case involved a very ‘hands [page 462] on’ director of a one-man company, the logic of the decision opens up the possibility that even a director who was more removed from day–to-day control of the workplace might owe such a duty in some cases.24 9.27 In Australia various options have been proposed for law reform in this area. The Crimes (Workplace Deaths and Serious Injuries) Bill 2001 was introduced into the Victorian Parliament in 2001 to bring in new offences in relation to workplace death, but was defeated in the Upper House of the Victorian Parliament in 2002. In the Australian Capital Territory, however, the Crimes

(Industrial Manslaughter) Amendment Act 2003 (ACT) commenced on 1 March 2004, and inserted a new Pt 2A into the Crimes Act 1900 (ACT) creating offences of ‘industrial manslaughter’. In New South Wales unions have called for similar legislation for some time. A parliamentary report in early 2004 dealt with the issue.25 A panel of experts prepared a report for WorkCover in late 2004 that recommended against specific industrial manslaughter legislation, urging instead the creation of additional penalties under the OHSA 2000.26 A draft Bill implementing this recommendation was issued for discussion,27 but was not proceeded with. Later, however, s 32A was inserted into the OHSA 2000, providing for the offence of ‘reckless conduct causing death at a workplace by a person with OHS duties’. The current provision, however, is WHSA s 31. 9.28

The elements of WHSA s 31 are:

The accused person has a ‘health and safety duty’ (that is, as s 30 defines it, a duty imposed under Divs 2, 3 or 4 of Pt 2 of the Act, which includes all the main safety duties from ss 19–29 previously discussed). They have engaged in conduct that exposes an individual to whom the duty is owed to a risk of death or serious injury or illness. – Does this have to be ‘positive’ conduct or can it be a failure to act? Arguably there is a need for something definite to be done. Former OHSA 2000 s 32A(1) made it clear that it covered ‘omissions’, but there is no equivalent provision in s 31. This may lead to some odd results; for example, a company that was made aware of a cheap safety precaution which would provide almost complete guard against a highly grave risk — but did nothing — might be able to argue that it had not ‘engaged in conduct’. Hopefully the courts will read ‘engage in conduct’ broadly enough to allow omissions of this sort to be included.

[page 463] –

Note particularly, however, that there is no need for an actual death or serious harm — simply that a risk of such has been created. They have engaged in this conduct ‘without reasonable excuse’ — and proof of a lack of reasonable excuse lies on the prosecution under s 31(2). Finally, that they have been ‘reckless’ as to the risk. This is likely to be the topic of much debate: see 9.29 below. There is one oddity. If a ‘manager’ is charged with a breach of s 27, and this is reckless and leads to death or serious injury, there may be a problem prosecuting them under s 31. That is, because s 31(1)(b) requires that the accused put at risk ‘an individual to whom that duty is owed’. However, under s 27 it is the corporate PCBU that has a ‘duty’, not the officer themselves, and the failure of the officer is to ensure that the PCBU complies with that duty. So at first glance it may seem as though s 27 can never be used as the basis for a s 31 prosecution. There are arguments that can be made against this view, however. One is that s 31 in its penalty provision assumes that an offence can be committed ‘by an individual … as an officer of a [PCBU]’ — which can only be a reference to s 27, being the only provision relating to officers. Even though it involves a slightly convoluted reading, one can interpret s 31 to apply to an officer as follows. We may ask ‘to whom is the s 27 health and safety duty owed’? When we read s 27(1) we see that it deals with a situation where the PCBU has a ‘duty or obligation under this Act’; so one could say that the duty under s 27(1) was owed ‘to’ the person to whom the PCBU owed a duty. After all, a s 27(1) does not explicitly say that the officer owes a ‘duty’ to the PCBU, rather it imposes an obligation on the officer to exercise due diligence to ensure that the PCBU ‘complies with that duty or obligation’; and so one could say that the duty underlying the s 27 obligation is

precisely the duty of the PCBU owed to someone else. If that is so, then a court can read s 31(1)(b) as the officer owing a duty to the person to whom the PCBU owed a duty. While this is slightly artificial, it is a plausible reading of the legislation, and allows the court to make sense of the penalty provisions in s 31. 9.29 ‘Recklessness’ in other areas of the law usually requires that the accused could foresee that the consequence of either death or serious harm was a result of their conduct. Sometimes the view has been taken that ‘recklessness’ requires a subjective foreseeing of harm — that is, it is not enough to show that a ‘reasonable person’ would have foreseen harm; it will be necessary to show that this defendant actually foresaw the harm. See, for example (though it is not directly relevant in New South Wales), Criminal Code Act 1995 (Cth) Sch 1 (Criminal Code) s 5.4(2): (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

[page 464] This makes proof of recklessness, while not impossible, fairly difficult unless there is some clear statement made beforehand.28 It is possible to commit the crime of murder by recklessness. In cases of murder, the High Court in R v Crabbe (1985) 156 CLR 464 held that it is necessary to show that the accused could foresee that death was a ‘probable’ result of their actions; that is, ‘more likely than not’. However, in the case of offences less than murder, where recklessness is a possible element of the offence, the New South Wales Court of Appeal held in R v Coleman (1990) 19 NSWLR 467 that the question was whether the accused foresaw the result as a ‘possible’ outcome of their actions. It is not clear

which standard the courts will apply to s 31 (there were no reported prosecutions under former s 32A to assist), but since there is some similarity between that section and the circumstances of manslaughter, and since for a manslaughter conviction foreseeing the ‘possibility’ is enough, that may be the standard. A further question that may be asked is, whose recklessness is relevant where a company is charged? The usual criminal principles under Tesco Supermarkets Ltd v Nattrass [1972] AC 153 are that the intention of the ‘directing mind’ of the company may be attributed to the company. More recently, Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 says that there can be a more ‘refined’ test involving consideration of who has responsibility for a matter within a company. This approach has been adopted in Australia — for example, see Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 at [4]; WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108, at [14]; Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75 at [104]–[110]; Hurd v Zomojo Pty Ltd [2015] FCAFC 148 at [168]. For the WHSA 2011, however, we have a special rule in s 244(2), which says that for the purposes of the Act the ‘recklessness’ of any of the following may count as the company’s recklessness: ‘an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority.’ Some guidance on the nature of ‘recklessness’ may be found in the decision of the Victorian Court of Appeal in Orbit Drilling Pty Ltd v R; Smith v R [2012] VSCA 82. In that case the court noted (at [21]), citing previous decisions, that ‘conduct is reckless if there is foresight on the part of an accused of the probable consequences of his actions and he displays indifference as to whether or not those consequences occur’. The court also pointed out (at [22]) that in a provision making it an offence to recklessly cause a risk, it is the foresight of the risk that is relevant, not foresight of the

actual harm. Proof that the accused could foresee ‘an “appreciable risk” of death’, then, would be sufficient: at [24]. 9.30 As noted above (see 9.28), even if the elements of duty, risk and recklessness are established, there is another element of ‘without reasonable excuse’, which the Act [page 465] requires the prosecution to negate.29 But what might amount to a ‘reasonable excuse’ for reckless behaviour creating a risk of death or serious harm? The answer may be seen more clearly when it is appreciated that the element of ‘recklessness’ under the provisions of other Acts and under the common law does not necessarily involve, say, ‘indifference’ to the result of one’s actions: see, for example, R v Crabbe (1985) 156 CLR 464 at 470. It is a term that has been given the technical meaning of a particular standard of foreseeability. Hence it is possible that someone might do an action having foreseen a real possibility that death might result, but that in some rare circumstances the decision to nevertheless proceed could be said to be ‘reasonable’. Take the example of a company-employed nurse at a workplace faced with the need to provide emergency treatment to a worker. WHSA s 28 imposes a duty on the nurse in relation to the safety of the worker. But the situation may be so dire that all options involve a possibility of death or serious injury. It is possible that in those circumstances the nurse would have had a ‘reasonable excuse’ for an action that unfortunately turns out to lead to the death of the worker. There are no doubt other possible situations. 9.31 In a number of ways WHSA s 31 is ‘tougher’ than OHSA 2000 s 32A. It is similar in that it requires ‘reckless’ conduct, and that this conduct involves a risk of death. WHSA s 31 creates an

‘indictable’ offence under s 229B(3) and hence will be heard either in the District Court or the Supreme Court, with appropriate rights of appeal. But whereas OHSA 2000 s 32A could only have been invoked in cases of actual death, under s 31 a ‘risk’ of death or serious injury or illness is sufficient. The penalty provision is also more serious: an ‘officer’ who was personally reckless and guilty would have faced a maximum fine of $165,000 or five years’ imprisonment under former s 32A; under WHSA s 31 the same person30 will now face a maximum fine of $600,000 (and the same possible time in prison). Yet in one way the new provision is slightly more generous to the accused — under s 31(2) the prosecution bears the onus of proving that the conduct had no ‘reasonable excuse’. Still, presumably the prosecution can discharge its burden either by identifying and negating what might have been regarded as a ‘reasonable excuse’ by a ‘reasonable person’, or else responding to any potential excuses actually raised by the accused. 9.32 Some other states have introduced similar provisions to those found in former OHSA 2000 s 32A and current WHSA s 31. For example, in Victoria, the Occupational Health and Safety Act 2004 (Vic) s 32 makes it an offence to ‘without lawful excuse, recklessly engage in conduct that places or may place another person who is at a workplace in danger of serious injury’. A conviction under s 32 was entered in Worksafe Victoria v Orbit Drilling Pty Ltd (County Court Vic, Hampel J, 28 April 2010, unreported). A summary of the proceedings notes that an employee was killed when [page 466] an overloaded truck overturned. Matters that went to prove recklessness apparently included the fact that the employee had only held a truck licence for two weeks, had been directed to drive

down a steep slope without adequate training in gear selection, that the truck had not been serviced for six months, had faulty primary and emergency brakes, and the secondary brake had been disconnected. The company was fined $750,000.31 A supervisor in the firm who was held personally reckless under s 32 was given a suspended prison sentence — apparently one of the first people in Australia to have ever been sentenced to prison for a health and safety offence.32 The conviction of the company and the managing director of the company was upheld on appeal in Orbit Drilling Pty Ltd v R; Smith v R [2012] VSCA 82. On appeal, the court drew a direct parallel between the Victorian provision, s 144, and the current s 31 of the WHSA 2011 (NSW): at [17]. This could mean that the New South Wales courts might follow Victoria’s lead set here when interpreting the New South Wales legislation.

Venue for prosecutions: relevant courts 9.33 Under previous state laws, there were various options for deciding which courts should hear WHS prosecutions. In New South Wales and Queensland, the task was given to specialist industrial tribunals — in New South Wales, the Industrial Relations Commission in Court Session, called the Industrial Court. In most other jurisdictions, matters were dealt with by the ordinary criminal courts. The definition of ‘court’ in s 4 of the Model WHSA was left blank, as a matter for each individual state and territory. The National Review suggested that the most serious offences (Category 1, involving recklessness) should be tried as ‘indictable’ offences before ‘ordinary’ criminal courts. The vast bulk of matters would continue to be those described under the WHSA as Categories 2 and 3 — simple breach of the Act not accompanied by recklessness — and it would seem to have been sensible for New South Wales at least not to lose the benefit of the expertise built up in the Industrial Court by moving those matters over to other bodies.

Hence, it may be suggested that it was an unfortunate decision to limit the jurisdiction of the Industrial Court in the WHSA NSW 2011. Under s 229B(1) most prosecutions under the Act will be brought in the Local Court or in the District Court. It is only in the case of Category 3 (the least serious offences, under s 33) that prosecutions may be brought in the Industrial Court in accordance with s 229B(2)(b).33 This somewhat bizarre division of responsibilities means that in some cases it may be in the interests of the accused to argue that the risk to which a worker was exposed was more serious — and hence to show that their case falls into Category 2, which means [page 467] that they may be prosecuted before a Local Court and so only exposed to a potential maximum penalty of $50,000 under s 229B(4).34 The distinction between Category 2 and Category 3 offences is by no means a ‘bright line’ one, and it is not clear whether a judge of the Industrial Court who, having heard a s 33 matter and concluded that the risk involved was one of ‘death or serious injury or illness’, and hence that s 32(c) was invoked, should proceed to sentencing under s 33, or should instead rule that they have no jurisdiction to hear the matter and declare the proceedings a nullity. Perhaps the only sensible approach is to read s 229B(2)(b) as allowing the final determination of the matter once a charge has been laid under s 33 (Category 3), regardless of whether or not the course of the trial reveals that a Category 2 offence could have been charged elsewhere.

Powers of inspectors 9.34 The regulators, and inspectors engaged by regulators, are given powers under WHSA Pts 8 and 9 that are very similar to

those previously enjoyed in most state jurisdictions. Prosecutions under the Act are instituted by inspectors appointed under s 156. Inspectors, under Pt 9 Div 3, may enter workplaces to conduct investigations. In carrying out their functions they have the power under Pt 10 to issue ‘improvement notices’, ‘prohibition notices’ and ‘non-disturbance notices’ requiring safety regulations or procedures to be complied with, or investigation to proceed. Under Pt 10 Div 5 they may, in some circumstances, take direct remedial action. The decision in Hunter Quarries Pty Ltd v New South Wales (Dept of Trade & Investment) [2014] NSWSC 1580 provides a helpful overview of the powers given to the ‘regulator’ and inspectors. In that case, where an inspector had arrived at the scene of an incident and attempted to require answers under s 171 of the Act, the employer tried to argue that he could not do so. There was an attempt made to say that the only powers could be exercised in investigating a possible offence under the Act lay in s 155, which required prior written notice to be given. Schmidt J rejected this contention. Her Honour noted that the two provisions operated in different circumstances. Section 155 was a power enjoyed by the ‘regulator’ (now SafeWork New South Wales), and by implication involved a more ‘long-term’ perspective investigating specific issues. Section 171, on the other hand, was a power designed to be operational on the ground whenever an inspector had exercised the power given to them under s 163 to ‘enter a place’, and allows the inspector to require access to documents or answers to questions on the spot, without prior written notice. Hence, her Honour rejected the contention that s 155 was the only provision that could be used in respect of suspected ‘contravention’. Section 171 was needed to allow immediate investigation, and nothing in the provision prevented it being used in relation to a suspected contravention, although of course it could be used in other circumstances as well.35

[page 468] Section 155 is a wide-ranging power to gather information based on a requisite belief on reasonable grounds that it could assist in determining whether a contravention of the WHSA has occurred.36 This is not a question to be determined by the person being investigated.37 It could arguably apply to board minutes that included no discussion of work health and safety matters (as the fact that no such discussion had taken place might itself be relevant to whether the company had paid proper attention to safety matters).38 The legislation also allows for the issue of ‘on-the-spot’ fines (penalty notices) under s 243 (Pt 13 Div 3). The effect of payment of an on-the-spot penalty is that the matter will not be dealt with by a court: s 243(5). The payment of such a fine is specifically said not to amount to an admission of liability in relation to any civil claim or proceedings. The Workplace Health and Safety Regulation 2011 (NSW) (WHSR) Sch 18A sets out which offences may be dealt with by on-the-spot fines. They are usually administrative matters, and as there would be little doubt that an offence had been committed, it would be in the interest of the accused to deal with the matter without the expense of legal proceedings. For example, under s 38, it is an offence not to report a notifiable offence to SafeWork New South Wales.39 WHSA s 38(7) makes it a further offence not to keep a record of all notifiable incidents for five years. Under the Act, an individual could be liable for a maximum fine of $5000. If the person accepted a penalty notice, under WHSR Sch 18A the amount they would pay would be $600. 9.35 A few other points concerning the powers of inspectors are worth noting. One is that s 269 explicitly recognises the overriding effect of the doctrine of legal professional privilege. It was fairly clear that this privilege applied previously, even in jurisdictions where it was not specifically mentioned, such as New South Wales, but s 269 confirms this. Sherriff and Tooma clearly

outline the circumstances in which privilege can be claimed and those in which it cannot.40 Legal professional privilege is discussed in more detail in Chapter 13. 9.36 Another point of note is an interesting new procedure that allows a challenge to be made to a decision not to prosecute for a WHSA offence. The introduction of this procedure was probably partly motivated by a desire to satisfy the demands of the union movement, which had lobbied hard for the right of union officials to institute prosecutions — a right that has been occasionally used in New South Wales but was resisted very strongly by employer groups. Instead, under s 231, where someone claims that a Category 1 or 2 offence has been committed (one involving recklessness and/or serious harm), and a decision has been made not to prosecute, there is a right to require the regulator to forward the matter to the Director of Public Prosecutions (DPP) for a formal decision on prosecution. In the end, the regulator [page 469] may decline to proceed, even if advised to do so by the DPP; however, they must at least provide written reasons for the decision. In New South Wales, as a result of last-minute changes made in the passage of the legislation through the Upper House, there is still some scope for union officials to institute prosecutions (contrary to the ‘model’ agreed on by the other states and the Commonwealth). WHSA (NSW) s 230(1)(c) and (3) allows a prosecution to be brought by a union in relation to the most serious (Category 1 or 2) offences, but only where the regulator (SafeWork New South Wales) has declined, under s 231, after referral of the matter to the DPP, to follow a recommendation of the DPP to institute proceedings. However, s 230(6) removes the ability of the court to direct that part of the fine in a successful

prosecution be paid to the prosecuting union. This appears to be a reasonable compromise — any prosecutions undertaken by unions (and there have been very few in any case) would not be tainted by a suspicion that they were being undertaken to bolster union funds.41 9.37 The WHSA also contains provisions in Pt 7 allowing entry into workplaces by what are called ‘WHS Entry Permit Holders’ to investigate suspected safety breaches. Generally, these permit holders will be union officers; however, they must be specially authorised under the legislation, and there are a number of limits on the powers of entry to try to ensure that these powers are not misused for non-safety purposes. As soon as reasonably practicable after using a right of entry power under s 117, permit holders are required under s 119(1) to give notice of the entry and suspected contravention.42 However, there is some uncertainty at the moment as to whether such permit holders, having entered, may take photographs under ss 117–118: see Kirby v JKC Australia LNG Pty Ltd [2015] FCA 1070 at [43]–[50].43 There are also a number of duty provisions labelled ‘WHS civil penalty provision’, breach of which allows the use of the ‘civil penalty’ regime now set up under Pt 13 Div 7. However, space precludes a detailed examination of these provisions.

Sentencing 9.38 Over the years the courts have developed a number of principles relating to sentencing that they apply in WHS prosecutions. It can be anticipated that the courts will continue to use some of these principles under the current regime. The most important matter that the court will take into account is the seriousness of the offence itself. The Full Court of the Industrial Court of New South Wales in Workcover Authority of New South Wales v Waugh (1995) 59 IR 89 made it very clear that

[page 470] the most important factors are those which concern the nature of the offence itself, rather than the consequences of the offence or the character of the defendant. Where there is a clear failure to rectify an obvious source of danger, then the court is likely to impose a substantial penalty.44 9.39 In Comcare v Transpacific Industries Pty Ltd [2012] FCA 90, Barker J noted (at [37]): [I]n determining the penalty to be imposed, it is the objective seriousness of the offence that is ‘front and centre’ … factors such as an early guilty plea, cooperation with the investigating authorities and the like play a more incidental or subsidiary role in the determination of penalty: see generally WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) NSWLR 700 at 714; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464.

His Honour noted that issues to be weighed in evaluating the seriousness of an offence included (at [36]): (1) the extent to which the risk of injury in a given situation was foreseeable, even if the precise cause or circumstances of exposure to the risk were not; (2) if in any case the risk of injury was actually foreseen, but no adequate response was taken to obviate it; (3) the risk of injury that may be foreseen in respect of not only serious personal harm, but also death. While the gravity of a consequence of a particular accident will not usually itself dictate the level of seriousness of a contravention or the amount of the penalty, the fact that failure to comply with the OHS Act may lead to death, and a fatality has occurred will usually be relevant to assessing the seriousness of a contravention; (4) the systemic failure of an employer to do something about a foreseeable risk contrasted with the risk of injury which results from inadvertence or a momentary lapse of supervision; (5) the size of the contravener’s organisation and its capacity to have in place systems that would have obviated or minimised the risks of injury. On the other hand, it does not necessarily follow that because an organisation is not large that it owes some lesser responsibility; (6) the processes, protocols or systems that an employer has adopted in order to educate its employees, to ensure that its safety systems are effective and to discipline employees when systems are breached; and

(7) the reaction of an employer to any incident as well as any penalty proceedings brought against them, which is connected to the proceeding factor discussed above. The cooperation and, in some cases, the early admission of responsibility for a contravention may be relevant.45

[page 471] There are, however, a number of other matters that will also be relevant. The general approach to sentencing, based on previous decisions of the New South Wales Industrial Court, was also adopted in Orbit Drilling Pty Ltd v R; Smith v R [2012] VSCA 82 at [61]. An important feature of this process is that the court, by focusing on the seriousness of the offence, is providing justice to the offender and at the same time taking into account deterrence of future offending.46 There are now a number of examples of reported prosecutions under the WHSA of specific and general deterrence being a concern in sentencing, which can be often dependent on whether the defendant is continuing their operation and whether or not they have made any post-incident workplace safety changes.47 9.40 The size of the penalty will usually be in proportion to the maximum available penalty; that is, the same set of facts occurring now and five years ago might easily lead to different penalties, if the level of relevant penalties had been increased. Interestingly, there seem to be no provisions in the WHSA directed explicitly to the question of ‘repeat offenders’. On general principles, however, a court would regard it as calling for a higher penalty if a PCBU had been previously convicted under this or earlier WHS legislation, depending on the circumstances of the prior conviction.48 One example of an overview of the sentencing process may be

found in the decision of Kearns DCJ in WorkCover Authority of New South Wales v JMW Developments Pty Ltd [2015] NSWDC 259 at [6]: In sentencing, I need to bear in mind several matters. I need to bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act. I need to bear in mind the purposes of the Work Health and Safety legislation, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I need to bear in mind any aggravating and mitigation factors,

[page 472] including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act, so far as any of those may be relevant.

In Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 the Court of Criminal Appeal indicated that the District Court should usually follow guidance on sentencing in workplace safety matters that had been previously given by the New South Wales Industrial Court. Mitigation of penalty 9.41 In mitigation (that is, reduction of sentence) of an otherwise appropriate penalty, the court will take into account the following matters. A similar list of factors to be considered in sentencing in industrial safety matters was set down by the English Court of Appeal in R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249. Past industrial safety record of accused 9.42 A consideration of the past industrial safety record of the accused will also involve consideration of the size of the business. The court in Haynes & Callaghan v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 said (at 456–7): … the past record upon which both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is

considering, namely industrial safety, health and welfare … the Court should attempt to ensure the accuracy of the record … We consider that the extent of the operations of defendant enterprises is to be taken into consideration … The safety record of a very large company with some prior convictions may, on analysis, be better than that of a smaller company with fewer such convictions.

Financial situation of defendant 9.43 In line with general sentencing principles, the financial situation of the defendant may lead to a lighter fine than would otherwise be imposed, simply because of the impact the fine will have on the specific defendant.49 In WorkCover Authority of New South Wales (Inspector Dell) v Fitzpatrick [2003] NSWIRComm 69, the accused was convicted under OHSA 1983 s 50 as a director of a company where there had been a serious safety breach and the death of a non-employee. Nevertheless, the court took into account the fact that the company had subsequently been wound up, the accused had been forced to sell most of his assets, was receiving a disability pension and would probably not work again. A modest fine of $3000 was imposed. One issue that arises in sentencing is the differential between corporate fines and fines for individual employers. Obviously the difference is intended to reflect the fact that often a company will be financially better off than a sole trader. But the courts have had to come to grips with the fact that often very small businesses [page 473] are incorporated for administrative, taxation and other purposes. Do they view all corporations identically? Whether or not the Act provided justification for it, in fact the courts under the previous legislation adopted the attitude of realistically assessing whether or not a company is in effect a ‘oneperson’ entity. So in Mauger v Krcmar Engineering Pty Ltd (1993) 47 IR 359, Fisher CJ held that he was entitled to ‘lift the corporate

veil’ and to assess the penalty on the basis that the penalty would be paid by a small businessman rather than a large corporation. He treated the maximum fine as if it were $10,000, rather than the then corporate maximum of $100,000, and fined the defendant $7500 for a fairly serious breach of safety procedures which had led to the death of the employee. A similar approach was taken in WorkCover Authority of New South Wales (Inspector Hart) v Idofan Pty Ltd t/as Kingsland Transport (1995) 59 IR 295, where a ‘one-man’ firm was treated as an individual. By that time, however, the maximum fine was $25,000; the penalty imposed as a result of the death of an apprentice was $10,000. This approach received the endorsement of the Full Court of the Industrial Court of New South Wales in Haynes & Callaghan v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455, where their Honours said (at 457): … where the corporate structure of the defendant has been shown to be little more than the means of distribution of earnings arising from personal exertion … the Court has seen it appropriate to impose a fine substantially less than if the corporation was functioning as a company with assets of a substantial kind.

On the other hand, if a company is successful even if small, and an employer, then it may still find itself subject to the ‘corporate rate’: see WorkCover Authority of New South Wales (Inspector Campbell) v Hydraulics Hot Line Pty Ltd (1998) 87 IR 39 at 47. An example of application of consideration of the overall means of the accused as a small business owner under the WHSA can be found in WorkCover Authority of New South Wales v JML Tree Services Pty Ltd [2015] NSWDC 253. Scotting J commented (at [65]– [67]): The offender’s evidence reflected a limited capacity to pay a fine. The offender has not returned a profit since the incident occurred in June 2013. The offender is a small family company. The earning capacity of Mr Long and his wife is exercised through the corporate vehicle. They draw a combined range of $1,700 per week from which they support themselves and a young daughter. The revenue of the business has decreased. The offender has a liability to the ATO in the sum of $50,000. Mr Long’s ability to operate the business and to maximise its financial return has

been adversely affected by the mental anguish and distress that he suffered as a result of the death of Mr Bard. I have also taken into account that Mr Long has paid $10,000 of his own money to Mr Bard’s widow to financially support her. I am cognisant of the fact that any monetary penalty imposed on the offender will have a direct impact on the financial position of Mr Long and his family.

In the circumstances of this case a conviction was recorded but no fine imposed, an option allowed for under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). [page 474] It should be noted that this was a very extreme case, and this outcome would by no means be automatically replicated in other cases involving companies of limited means. Remedial action 9.44 The court will also consider how the defendant responded to the incident. If, after the accident, new procedures have been put in place to prevent further such incidents, then this will be regarded as in the defendant’s favour. Expression of contrition 9.45 The court will also take into account whether there is any indication that the employer has tried to reduce the impact of the accident on family members, and will also take into account how the accident has personally affected the defendant. Community standing and reputation 9.46 In a number of cases the court has been willing to take into account the good reputation and respect within the community of the defendant: see WorkCover Authority of New South Wales

(Inspector Hart) v Idofan Pty Ltd t/as Kingsland Transport (1995) 59 IR 295; C L Green v IR Mabey t/as H Mabey & Co (SC(WA), Parker J, 7 December 1994, unreported). Cooperation 9.47 The subsequent cooperation of the defendant with the inspecting authority is also regarded as relevant to the determination of penalty: see Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99. The Full Bench of the New South Wales Industrial Relations Commission in Court Session referred to and adopted a set of guidelines on this issue promulgated by the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] NSWCCA 309. This guideline judgment deals with the appropriate discount to a sentence for a plea of guilty, and other ‘subjective’ matters that may go to mitigation. For an example of a case where the guidelines were applied, see State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) [2000] NSWIRComm 261; (2000) 102 IR 218 at [45]–[47]. A discount for an early guilty plea could lead to a different type of sentence, as noted above.50 Other sentencing issues 9.48 The New South Wales Parliament has spelled out in legislative form, in the Crimes (Sentencing Procedures) Act 1999 (NSW) (CSPA) s 21A, a number of matters that must be taken into account in sentencing, and these were regularly referred to [page 475] in the New South Wales Industrial Court in WHS prosecutions.51 They continue to be referred to in prosecutions under the WHSA.

One important principle which has not been previously noted is involved when there is a prosecution involving two or more offences which may arise out of the same events. This is known commonly as the ‘principle of totality’. The Full Bench of the Industrial Court in New South Wales (Dept of Education and Training and Dept of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33 at [453] referred to the following passage in discussing this principle: In R v Holder [1983] 3 NSWLR 245, Street CJ described the totality principle at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

Application of this principle, then, will mean that the court might need to reduce the sum total of individual sentences that might otherwise have been imposed, to reflect the ‘overall criminality’ of the behavior in question. For an example of the principle as applied in the District Court in a workplace safety matter, see WorkCover Authority of New South Wales v Drayton & Sons Pty Ltd [2014] NSWDC 180 at [38]. The decision in Nash v Glennies Creek Coal Management Pty Ltd; Nash v Integra Coal Operations Pty Ltd (No 9) [2015] NSWIC 15 at [125] contains an interesting discussion of the application of the principle of totality where two separate companies are convicted, but there is a common ownership of shares between the two companies. Schmidt J concluded that in such a case there is usually no room for application of the principle, the two companies being regarded as separate legal persons and responsible for their own wrongdoing.

9.49 One option in a criminal proceeding in New South Wales, if an offence is proven but for some reason the court believes that the person’s behaviour was not culpable enough to warrant a conviction, is to apply the provisions of CSPA s 10.52 If that section is applicable, a conviction is not recorded. However, while it is possible for this section to be used in prosecutions under the Act, the decision of the Chief Justice [page 476] of the Industrial Court, Fisher CJ, in Schultz v Tamworth City Council (1995) 58 IR 221, made it clear that it should not be lightly invoked. His Honour said (at 229): The use of s 556A of the Crimes Act … in light of the strongly defined duty of care, clear public policy considerations in the Act and major penalties provided, ought to be rare indeed and is not appropriate in the presence of long-standing adverse work practices.

In that case the magistrate seems to have taken the view that the employees in the abattoir ought themselves to have known that certain practices were unsafe and so they bore the responsibility for the accident. But the court held that the Act clearly casts the responsibility to maintain a safe system on the employer, not the employee.53 9.50 The comments of the Full Bench in WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000) 100 IR 64 indicated that any exercise of the CSPA s 10 discretion ought to be considered as ‘extraordinary and highly exceptional’. However, there have been some cases where in the circumstances of the particular proceedings a manager, deemed to be liable under OHSA 2000 s 26, may have had CSPA s 10 applied so that no conviction was recorded. One example is the Gretley proceedings, Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339,

where (at [628]) the Full Bench ruled that one of the mine managers, who had been in office when decisions which led to the disaster were made but was no longer so on the date of the incident, should have no conviction recorded. The court noted (at [621]–[622]): Although it is true that Mr Romcke was present and involved in the planning of the development of the mine, was aware of the risk of inrush of water from the old workings, and failed to be in possession of all available information regarding disused excavations or workings in the vicinity of the mine, the extent to which he was involved in the actual commission of the offence was significantly limited. Although he has been found guilty by virtue of the deeming provisions of s 50(1), his criminal culpability must be regarded as diminished by virtue of the fact he left the role of mine manager with NWCC on 28 October 1994. Moreover, Mr Romcke has an otherwise unblemished record (with a relatively long standing role in mine management positions), was found to be a person of good character, conscientious and committed to issues relating to workplace safety, and Staunton J specifically found that there was no need for specific deterrence in his case.

Another example of the application of s 10 to a mine manager may be found in Morrison v Cahill [2007] NSWIRComm 114. There the manager was found to have been highly diligent in putting in place safety precautions and at the time of the incident was not on site. It should not be assumed, however, that s 10 will always be applied to ‘absent’ managers — the whole circumstances of each case will be [page 477] taken into account, and in some cases not being on site might increase, rather than decrease, a penalty. 9.51 The serious approach taken by the courts to penalties may be illustrated by some successful appeals against the inadequacy of the penalty imposed by lower courts. In WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89, the Full Court heard an appeal against penalties imposed on a sawmilling company and its

controlling director, Mr Waugh. A worker had received severe injuries that were caused by his arm being caught in an unguarded conveyor belt. A subsequent inspection by WorkCover two months later revealed that the machine was still unguarded. At first instance, Schmidt J fined the company $7000 and used former Crimes Act 1900 (NSW) s 556A to record no conviction against Mr Waugh. WorkCover appealed to the Full Court who agreed that the penalties were far too light given both the initial failure to guard the conveyor belt and, in particular, the failure to rectify the situation once it became clear that it was dangerous. Mr Waugh’s claim that he didn’t know the machine needed to be guarded met with this comment (at 100): The Act and commonsense require that managements who employ persons daily in an admittedly dangerous industry do know elementary facts about guarding dangerous parts of machines and safe working. Ignorance of this kind is not only not an excuse, it amounts to an aggravation of the offence.

Nor was Mr Waugh’s remark about the failure to rectify the situation — ‘I just never got around to it’ — regarded with much favour by the court. In the result the company’s penalty was increased to $25,000 and Mr Waugh was both formally convicted and fined $10,000. An even more serious increase in penalty is reported in WorkCover Authority of New South Wales (Inspector Viesis) v Thiess Contractors Pty Ltd (1996) 85 IR 12 — on the intervention of the Attorney-General a fine of $75,000 in relation to four separate offences was raised to $175,000. The company had a record of prior convictions. For an example in the mining area, see Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 (Powercoal No 2), where the penalty was increased from $65,000 to $155,000. In WorkCover Authority of New South Wales (Inspector Mason) v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350, the Full Bench increased a penalty which had been applied at first instance of $25,000, for a serious fall in the workplace, to $55,000. Over the last few decades there has been a lot of debate over

how effective the enforcement of WHS legislation is, and what changes need to be made. There is no doubt that in recent years the legislative increases in penalties have been seen by judges as a sign that light sentences are no longer appropriate in many cases.54 However, it is somewhat disturbing that over the last few years there has been a decrease in prosecutions conducted in New South Wales, possibly as a result of [page 478] a perception in some quarters about how ‘harsh’ the system was. Whether this trend will continue under the current Coalition government will be interesting to observe. Comparing sentences under the OHSA and the WHSA is difficult when the maximum penalties available are different, and many do not involve considerations of the Fines Act 1996 (NSW) which are now becoming increasingly relevant.55 Under s 6 of the Fines Act 1996 (NSW), an offender must first prove they have a limited capacity to pay to the court, before it uses its discretion to reduce their fine.56 The District Court, having taken over most of the jurisdiction from the New South Wales Industrial Court, has referred to matters such as 21A noted above, and seems to be giving appropriate consideration to various issues: see WorkCover Authority of New South Wales v Construere Projects Pty Ltd [2014] NSWDC 310. In that case, a worker died when asked to do air conditioning work he was not licensed to do. Judge Kearns SC referred to the ‘objective seriousness’ of the offence and the foreseeability of the risk of injury: at [6]. In the unusual circumstances of the case, where the deceased worker was a family member of the manager of the employer, his Honour set a fine of $50,000 discounted for mitigating circumstances to $37,500 (still perhaps a bit low where a death was involved, but the family

relationship makes it understandable). Another example is the arborist who died unforeseeably while working in a small family business in WorkCover Authority of New South Wales v JML Tree Services Pty Ltd [2015] NSWDC 253. The defendant having pleaded guilty, paid money to the deceased’s family, assisted investigators, as well as the business being unable to turn a profit led to CSPA s 10 conviction without further penalty being imposed. However, when the risk was obvious in another case, the defendant was fined $250,000 for a 19(1)/32 breach: WorkCover Authority of New South Wales v Sarjame Storage Pty Ltd [2015] NSWDC 151. This could be compared with Safe Work New South Wales v Waycon Bulk Pty Ltd [2015] NSWDC 254, where the defendant was fined $187,500 for a worker’s severed hand injury for a breach of s 32, mitigated by a 25% discount as well as other factors.

Other enforcement options 9.52 There are a number of enforcement options under the WHSA that do not simply involve the traditional fine or custodial sentence. Many of these were previously available under the OHSA 2000. [page 479] Non-monetary penalties are contained in WHSA s 236 (adverse publicity orders) and s 238 (work health and safety project orders). These were provided for under OHSA 2000 ss 115 and 116.57 Proceedings against the Crown are dealt with in WHSA s 248(6) (b)(ii). OHSA 2000 Pt 7 Div 3, which allowed an action to be taken against the ‘successor’ of a statutory corporation that had been abolished and replaced, was a similar provision. Victim impact statements may be tendered in relation to proceedings under the WHSA. See the explicit reference to this in

CSPA s 27(2A).58 The OHSA 2000 made separate provision for these statements in prosecutions before the Industrial Court where there was a breach of the ‘general duties’ provisions in Pt 2 Div 1, and the offence resulted in death or bodily injury. For cases in which the court considered a victim impact statement, see Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182; Inspector Brian Dell v Teeling [2010] NSWIRComm 53; WorkCover Authority of New South Wales v 4 Lift N Pty Ltd [2015] NSWDC 150; and Workcover v Visy Paper Pty Ltd [2015] NSWDC 284. Under WHSA Pt 10 Div 3, a ‘non-disturbance notice’ is now another enforcement option. The purpose of the notice is to require that the scene of a particular incident not be disturbed until investigations have taken place. The regulator’s power to take ‘remedial action’ under WHSA Pt 10 Div 5 will allow on-the-spot action to remedy a risk to safety where a prohibition notice has been ignored, or where the person to whom the notice must be given cannot be found. Costs of taking the remedial action can be recovered under s 213 from the person who should have taken the action. There is also a power under Pt 10 Div 6 to seek an injunction from a court. There are also extensive new provisions under Pt 11 in relation to ‘enforceable undertakings’. The regulator may accept a Pt 11 undertaking in lieu of a possible prosecution (except in relation to a Category 1 matter, involving a risk of death or serious injury or illness, resulting from recklessness). These are an innovation in New South Wales, but have been used previously in some other jurisdictions (such as Queensland, and also the Commonwealth in relation to matters dealt with by the Australian Competition and Consumer Commission) and guidance from decisions in those jurisdictions will no doubt be taken into account in New South Wales.59

[page 480]

Further Reading On enforcement M Crabtree, ‘Health and Safety Management: A Three Tier Defence to Prosecution’ (1996) 70 Law Institute Journal (October) 44–6 (Victoria). C Duane, ‘Health and Safety Law Enforcement’ (1996) 70 Law Institute Journal (October) 42–3 (Victoria). N Foster. ‘Manslaughter in the Workplace’, Workplace Health and Safety papers, 2016, available at: . H Glasbeek, ‘Occupational Health and Safety Law: Criminal Law as a Political Tool’ (1998) 11 Australian Journal of Labour Law 95–119. N Gunningham, CEO and Supervisor Drivers: Review of Literature and Current Practice, NOHSC, October 1999 (on what influences company managers in improving workplace safety). N Gunningham, ‘Impacts of Work Health and Safety Harmonisation on Very Large Businesses’ (2015) 28 Australian Journal of Labour Law 33–56. F Haines, ‘Prosecution and the Changing Regulatory Context: A Proposal for Reform’ (1996) 70 Law Institute Journal (October) 52–3. R Johnstone (ed), Occupational Health and Safety Prosecutions in Australia: Overview and Issues, Centre for Employment and Labour Relations Law Occasional Monograph Series No 1, Melbourne, 1994. R Johnstone, ‘Prosecutions in Light of the Industry

Commission Proposals’ (1996) 70 Law Institute Jnl (October) 54–5. R Johnstone, ‘Work Health and Safety and the Criminal Law in Australia’ (2013) 11(2) Policy Practice in Health and Safety 25–44. R McCallum, T Schofield and B Reeve, ‘The Role of the Judiciary in Occupational Health and Safety Prosecutions: Institutional Processes and the Production of Deterrence’ (2012) 54(5) Journal of Industrial Relations 688–706. S Perrone, ‘Workplace Fatalities and the Adequacy of Prosecution’ (1995) 13 Law in Context 81–105. K Polk, F Haines and S Perrone, ‘Work Death in Victoria, 1987–1990: An Overview’ (1995) 28 Australia and New Zealand Jnl of Criminology 178–92. M Quinlan, Ten Pathways to Death and Disaster: Learning from Fatal Incidents in Mines and Other High Hazard Workplaces, Federation Press, Sydney, 2014. J Spear, ‘Advising a Client Charged with an OHS Offence’ (1996) 70 Law Institute Journal (October) 47–8 (Victoria). E Windholz, ‘The Harmonisation of Australia’s Occupational Health and Safety Laws: Much Ado About Nothing?’ (2013) 26 Australian Journal of Labour Law 185–213

1.

For example, see Inspector Estreich v Zaccardelli [2012] NSWIRComm 47 at [11]–[12] under OHSA 2000, a case involving a very serious ‘prank’ which led to an employee suffering serious burns.

2.

For other cases of interest on the former provisions see Callaghan v De Sandre (NSW CIMC, Miller CIM, No 90/491, 22 October 1991, unreported); WorkCover Authority of New South Wales v Wallis [1994] NSWIRC 163 (workers charged were found not to have behaved unreasonably); WorkCover Authority of New South Wales (Insp Thomas) v Cruden (1996) 67 IR 469; Workcover Authority of New South Wales v VibroPile (Aust) Pty Ltd [1997] NSWIRComm 73; Morrison v Gardner [2003] NSWIRComm

3. 4.

5.

6.

7.

8. 9.

440 (experienced mine deputy convicted for allowing work in an unsafe area to take place); Inspector Jones v Challita [2005] NSWIRComm 385 (the conviction of the employee, and the relatively modest penalty of $600, was upheld on appeal in WorkCover Authority of New South Wales (Inspector Jones) v Challita [2006] NSWIRComm 207). ‘Details of a successful prosecution E165293’ on the Queensland prosecutions site, . However, s 29, as noted above, is so broad that presumably an action that interfered with safety gear could be charged as something that was a breach of the duty of reasonable care for the safety of others. For cases where prosecutions were laid under OHSA 2000 s 13, requiring consultation, see Inspector Peter Robinson v Lovells Springs [2005] NSWIRComm 375 and WorkCover Authority of New South Wales (Inspector Karen Simpson) v Paul Mclaughlin Group [2006] NSWCIMC 80. For example, B Sherriff and M Tooma, Understanding the Model Work Health and Safety Act, CCH, North Ryde, 2010, p 54 suggest that volunteer firefighters or lifesavers may now be held criminally liable for failure to exercise due care to rescue others. National Review into Model Occupational Health and Safety Laws, First Report (to the Workplace Relations Ministers Council) (October 2008); Second Report (January 2009) available at . See Rec 75 in the First Report: ‘In light of our recommendations about who should bear the onus of proof in relation to reasonable practicability, the model Act should not provide for defences to prosecutions for noncompliance with duties of care.’ The defence under OHSA 1983 s 53 was the equivalent of the defence under OHSA 2000 s 28 discussed above.

10.

For another recent decision where it was held not to be ‘reasonably practicable’ for a company to have double-checked the safety of structures provided by an expert contractor, see Kirwin v Pilbara Infrastructure Pty Ltd [2012] WASC 99 (S). See HWE Mining Pty Ltd v Robertson [2015] WASCA 26.

11. 12.

Ibid, at [91]–[95]. See Eastern Basin at [50]–[57], [93]–[139].

13. 14.

See Eastern Basin at [140]–[146]. F Marks, Understanding New South Wales Occupational Health and Safety Legislation, 2nd ed, CCH, Sydney, 1994.

15.

It should be stressed that the reason there were few decisions where defences under s 53 or s 28 succeeded was simply because in general a prosecution would not have been brought by WorkCover unless they were of the view that such defences were not likely to succeed. The attacks sometimes made on the former legislation on the basis that there was a high success rate of prosecutions were self-serving and absurd — there was a high success rate because the prosecuting authorities were choosing their cases carefully and doing the job they were being asked to do by enforcing the law! Noted in R Whare, ‘The Court’s Perspective in Recent Cases’, paper presented to the

16.

Seminar on Effective Management of Occupational Health and Safety, 7 August 1996, p 12. 17.

18. 19. 20.

21.

22.

23.

24. 25. 26.

27. 28.

29.

30.

Interestingly, an earlier draft of the Act used the phrase ‘body corporate’ instead of ‘PCBU’ here; the current legislation recognises that not all PCBUs are actually incorporated, as previously noted. That is, an individual who is a PCBU, or an officer of an organisation which is a PCBU. See the amended s 26(1) before repeal; the same result followed under the previous form of s 26 prior to 7 June 2011. For a more detailed discussion of this area see N Foster, ‘Manslaughter by Managers: The Personal Liability of Company Officers for Death Flowing from Company Workplace Safety Breach’ (2006) 9 Flinders Journal of Law Reform 79–111. See also R Johnstone, ‘Work Health and Safety and the Criminal Law in Australia’ (2013) 11(2) Policy and Practice in Health and Safety 25–44. Nydam v R [1977] VR 430 at 444. Note that this approach was reaffirmed by the New South Wales Court of Criminal Appeal in R v Do, Manh Viet [2001] NSWCCA 19 at [17]. See also the High Court decision of Burns v R [2012] HCA 35, adopting this analysis. See in the United Kingdom Attorney-General’s Reference (No 2 of 1999) [2000] QB 796. For an excellent review of the law in this area see J Clough, ‘A Glaring Omission? Corporate Liability for Negligent Manslaughter’ (2007) 20 Aust Jnl of Labour Law 29–52. Notwithstanding this difficulty, there have been a number of successful manslaughter prosecutions of company directors in the United Kingdom in recent years: see, for example, R v Kite [1996] 2 Cr App R (S) 295. For further discussion, see N Foster (2016) noted in the Further Reading list at the end of this chapter. The Legislative Council Inquiry into Serious Injury and Death in the Workplace, which reported in May 2004. See the Report to the New South Wales WorkCover Authority, Advice in Relation to Workplace Death, Occupational Health and Safety Legislation and Other Matters, prepared by Prof R McCallum, P Hall QC, A Hatcher and A Searle. The draft Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill 2004, which was never formally introduced into parliament. See also the decision of the House of Lords in R v G [2003] UKHL 50, reaffirming the ‘subjective’ nature of recklessness for English law; see also the comment in S Bronitt and B McSherry, Principles of Criminal Law, 2nd ed, Pyrmont, Thomson Lawbook, 2005, pp 179–83. In stark contrast, while OHSA 2000 s 32A included a defence of ‘reasonable excuse’, s 110 of that Act made it clear that the onus of proving that there was such an excuse lay on the defendant. Note that an officer, as discussed previously, has a duty under s 27, which is classified by s 30 as a ‘health and safety duty’, and for reasons noted already may be charged under s 31 in relation to a breach of that or a related duty.

31.

For the summary see Regulation at Work 9/2 (July 2010) pp 12–13, available online at .

32.

The unreported proceedings are noted in the news section at . This ‘concession’ was introduced in the Upper House in New South Wales at the last minute; the original Bill had removed the jurisdiction of the Industrial Court completely.

33.

34.

35. 36. 37.

It should be said that it would be likely, of course, if a risk seemed more serious, for WorkCover to initiate proceedings in the District Court, where there is no such artificial limit on penalty. See [78]–[80]. See Perilya Ltd v Nash [2015] NSWSC 706 at [115]–[116], upolding a conviction for failure to provide a copy of previous board minutes in relation to a prior accident. See [117].

38. 39.

See [113]. See, for example, Safe Work New South Wales v Waycon Bulk Pty Ltd [2015] NSWDC 254; WorkCover Authority of New South Wales v 4 Lift N Pty Ltd [2015] NSWDC 150.

40. 41.

Sherriff and Tooma, note 6 above, pp 103–4. The public comment on this issue has grossly misrepresented the extent of union involvement in prosecutions. In 2005–10, unions launched only 27 prosecutions, about 1.4% of total prosecutions over that time. See N Foster, ‘State of the Unions Address Flawed’, Letter to the editor, Sydney Morning Herald, 31 May 2011.

42.

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [148]–[155]. See also Kirby v JKC Australia LNG Pty Ltd (No 2) [2015] FCA 1113 for some discussion of other aspects of WHSA s 117.

43. 44. 45.

46.

47.

See also the helpful discussion in Workcover Authority of New South Wales v Vibro-Pile (Aust) Pty Ltd [1997] NSWIRComm 73. Since the broadening of the Commonwealth WHS jurisdiction with the adoption of the ‘Comcare’ scheme being applied to some companies, a number of important decisions of the Federal Court have been handed down providing invaluable guidance on issues of sentencing. It is also interesting to note that many of these decisions have found the guidance offered by previous decisions of the Industrial Court of New South Wales to be invaluable in this area. See Comcare v Commonwealth of Australia [2007] FCA 662 at [123] per Madgwick J. See R McCallum, T Schofield and B Reeve, ‘The Role of the Judiciary in Occupational Health and Safety Prosecutions: Institutional Processes and the Production of Deterrence’ (2012) 54(5) Journal of Industrial Relations 688–706. See WorkCover Authority of New South Wales v Plumbwizard Pty Ltd and John Georges [2015] NSWDC 266 at [21]–[22]; WorkCover Authority of New South Wales v JMW Developments Pty Ltd [2015] NSWDC 259 at [14]–[15]; Safe Work New South Wales v Waycon Bulk Pty Ltd [2015] NSWDC 254 at [46]–[47]; WorkCover Authority of New South Wales v JML Tree Services Pty Ltd [2015] NSWDC 253 at [49]–[54]; WorkCover Authority of New South Wales v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [42]–

[43]; WorkCover Authority of New South Wales v 4 Lift N Pty Ltd [2015] NSWDC 150 at [17]–[18]; WorkCover Authority of New South Wales v Customised Gas Australia Group Pty Ltd and Flynn [2014] NSWDC 361 at [28]; WorkCover Authority of New South Wales v Construere Projects Pty Ltd [2014] NSWDC 310 at [25]. Compare WorkCover Authority of New South Wales v El-Hayek [2014] NSWDC 362 at [14]–[15]. 48. 49.

See s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. See Fines Act 1996 (NSW) s 6.

50.

See WorkCover Authority of New South Wales v JML Tree Services Pty Ltd [2015] NSWDC 253 at [61]. Some 99 decisions of the court refer to the provision. For a slightly unusual prosecution under the rarely litigated rail safety legislation, see Independent Transport Safety & Reliability Regulator v Australian Rail Track Corporation [2010] NSWSC 697, where the s 21A matters were carefully considered in the Supreme Court.

51.

52. 53.

Formerly Crimes Act 1900 (NSW) s 556A. For another case where the court held that it was inappropriate to apply former s 556A to an offence under the OHS Act, see WorkCover Authority of New South Wales (Inspector Campbell) v Howle (1998) 86 IR 297.

54.

You can read about the debates in R Johnstone (ed), Occupational Health & Safety Prosecutions in Australia: Overview and Issues, Centre for Employment and Labour Relations Law Occasional Monograph Series No 1, Melbourne, 1994 and some empirical research in the articles noted in Further Reading at the end of this chapter. See, for example, WorkCover Authority of New South Wales v Plumbwizard Pty Ltd and John Georges [2015] NSWDC 266 at [42].

55. 56.

57.

58.

59.

See Safe Work New South Wales v Waycon Bulk Pty Ltd [2015] NSWDC 254 at [53]– [63]; WorkCover Authority of New South Wales v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [55]; WorkCover Authority of New South Wales v El-Hayek [2014] NSWDC 362 at [20]. Compare WorkCover Authority of New South Wales v JML Tree Services Pty Ltd [2015] NSWDC 253 at [63]–[68]. See M Tooma, Tooma’s Annotated Occupational Health and Safety Act 2000 New South Wales, 3rd ed, Lawbook Co, Pyrmont, 2009, pp 227–9 for some examples of publicity orders: for example, Przibilla v Department of Education and Training (NSW) [2004] NSWCIMC 4; see also Inspector Martin Constable v Willmott Forests Ltd [2005] NSWCIMC 120 and WorkCover Authority of New South Wales (Inspector Short) v Crown in Right of State of New South Wales (NSW Police) [2007] NSWIRComm 138. While s 27(2A) refers to the jurisdiction of the Industrial Court of New South Wales, s 27(2) generally allows a District Court, and s 27(3) a Local Court, to receive such statements in cases involving death or actual physical bodily harm. For further comment see R Johnstone and C Parker, ‘Enforceable Undertakings in Action — Report of a Roundtable Discussion With Australian Regulators’, National Research Centre for OHS Regulation, WP 71, February 2010.

[page 481]

10 WORKPLACE SAFETY UNDER REGULATORY CRIMINAL LAW

Aims The aims of this chapter are: to outline the way that regulations support the main statutory workplace health and safety duties; and to provide an overview of the current ‘harmonised’ Work Health and Safety Regulation 2011 (NSW) (WHSR).

Objectives After completing this chapter, you should be able to: describe generally how the WHSR operates; and identify the general topics dealt with by the WHSR.

Previous New South Wales Regulations and ‘associated legislation’

10.1 Prior to the introduction of the Occupational Health and Safety Act 2000 (NSW) (OHSA 2000) there were a number of pieces of subordinate legislation (regulations) and other Acts with an impact on workplace health and safety in New South Wales. From 1 September 2001 almost all of the related regulations, and most of the other Acts, were repealed. Since 1 January 2012 the new WHSR has been in force. We will discuss a number of the provisions of the WHSR below. However, first it will be helpful to have some understanding of the previous regulations and the ‘associated legislation’ that has been repealed.

Former ‘associated legislation’ 10.2 The Acts governing workplace health and safety in New South Wales before the ‘Robens-style’ legislation was introduced,1 noted in earlier chapters, were the Factories [page 482] Shops and Industries Act 1962 (NSW) (FSIA) and the Construction Safety Act 1950 (NSW) (CSA). Despite the fact that they have not been a major source of criminal prosecutions over the last few decades, the meaning of the older Acts has been considered in a substantial body of case law. This occurred principally because under the Occupational Health and Safety Act 1983 (NSW) (OHSA 1983), while no civil action was available in relation to the ‘general duties’ provisions of the Act itself, it was possible to take actions in tort based on breach of statutory duty in relation to these associated provisions (see former OHSA 1983 s 22(1)(c) and the general discussion in Chapter 6 on the tort of breach of statutory duty). As a result, appeal courts often had to consider the meaning of certain phrases to determine whether the statute had been breached. The major pieces of associated legislation were repealed by the

OHSA 2000. The continuing civil law consequences of the legislation had some impact for a few years after its repeal, as accidents that happened before 1 September 2001 were litigated. However, now that the Acts themselves have been repealed for some time, their provisions will not be considered here in any detail. It is worth noting, however, that following the general approach the courts take to these matters, they will probably at least refer to previous decisions under the old legislation in interpreting the new regulations.2 Therefore, we will briefly review some of the more commonly litigated provisions from the past.

Former Factories, Shops and Industries Act 19623 10.3 As Brooks points out, the FSIA as a whole was a ‘rag-bag’ of provisions relating to different aspects of industry.4 The Part that was of most relevance to WHS concerns was former Pt 3, headed ‘Health, Safety and Welfare in Factories, Shops and Other Industries’. A very thorough and helpful discussion of the New South Wales legislation as it then was is included in Brooks’ book.5 The features of the Act were as follows: It was mostly confined to operations in ‘factories’, so prior to any consideration of the Act it was necessary to determine whether or not the place where the injury occurred was a ‘factory’. However, the word was given an extended definition under the FSIA s 4(1) to include a number of places that would not normally be called a [page 483] ‘factory’ in ordinary language.6 The definition did, however, mean that most offices and rural farms, for example, were not covered by the Act.

Different individuals might have been liable under different provisions of the Act, although there was a ‘default’ liability in someone defined as the ‘occupier’ of the factory: see s 70.7 Section 9 included a broad definition of ‘employee’ which effectively meant that an occupier was liable for risks not only to people the common law would call employees, but also to independent contractors and even those working in the factory without pay. There were various provisions dealing with the health and comfort of employees, but the ones most commonly litigated were s 27 (requiring the fencing of dangerous machinery)8 and s 40 (requiring safe means of access to a place of work).9 10.4 The Occupational Health and Safety Regulation 2001 (OHSR 2001) then dealt with these issues in a different manner to the FSIA. There was no equivalent definition of ‘factory’ in the OHSR, and obligations did not depend on work being done in a specific place. Instead, the Regulation addressed issues of safety in premises, plant and other matters more generally. Spray-painting, for example, was dealt with in Pt 7.1, as part of the general treatment in Pt 7 of ‘Hazardous processes’. Under the OHSR 2001, the ‘fencing of machinery’ obligations imposed by the FSIA s 27 were mainly picked up by cll 136A and 137.10 These clauses were found in Pt 5, [page 484] which dealt with ‘Plant’ generally, and in particular in Pt 5.4, which specifically dealt with the topic of ‘Working with Plant’. Thus, to take one example, the obligation under the FSIA s 27(1) to fence dangerous parts of machinery was translated into former cl 136A(1)(d) of the OHSR 2001 as: 136A Use of plant — particular risk control measures

(1) An employer must ensure in relation to use of plant that: … (d) if it is not possible to eliminate the risk of entanglement in plant with moving parts, persons do not operate, or pass in close proximity to, the plant unless the risk of entanglement is controlled by guarding that meets the requirements of clause 90 (1) or the use of a safe system of work …

10.5 Clause 90 of the OHSR 2001 dealt with the obligations of designers of plant. The OHSR took quite a different approach from FSIA s 27, specifying some things in much greater detail. The previous requirement for a ‘fence’ was now translated into either a ‘permanently fixed physical barrier’ or, if access was needed, several other requirements were specified, such as an interlocking physical barrier or a ‘presence sensing safeguarding system’, which was then defined in subcl 90(2). Subclause 90(3) filled a gap revealed by the High Court decision in Mummery v Irvings Pty Ltd (1956) 96 CLR 99,11 which had held that the obligation to provide fencing was intended to protect employees from putting their hands into the machine, and was not breached when someone was hurt by material flying out of the machine. The obligation to provide such a guard was now imposed on the employer by cl 136A(3)(e). Clause 136A (when it was known as cl 136)12 was referred to in Workcover Authority of New South Wales v C P Pre-cast Pty Ltd [2005] NSWCIMC 139 at [15] and in WorkCover Authority of New South Wales (Inspector Sharon Warner) v Premier Steel Technologies Pty Ltd [2006] NSWCIMC 71 at [6]. The prosecution in each case was conducted pursuant to the OHSA 2000 s 8, but the OHSR 2001 was referred to as illustrating why there had been a failure to ensure safety under the Act. 10.6 The New South Wales comments on the operation of Howard Haulage Pty Ltd [2007] employed truck driver who was

Court of Appeal made some cl 136A in Estate of Mutton v NSWCA 340. In that case, an delivering grain to the Mutton

farm was unloading the grain when he stepped back into a revolving auger used in the process, was caught in the auger and seriously injured. One of the issues in his claim for damages was [page 485] whether his employer had breached OHSR 2001 cll 45(a) and 136A(3)(d).13 If so, the truck driver would have been able to succeed in a civil action for breach of statutory duty, as discussed in Chapter 6 at 6.15. The Court of Appeal was divided on the interpretation of cl 136A. With great respect to the majority, I think the correct view was the minority view of Spigelman CJ. It was conceded that there was an exposed revolving connection between the auger and a tractor into which the worker had stepped. OHSR 2001 cl 45(a) provided that: ‘An employer must ensure that: (a) sufficient working space is provided to allow persons to work safely.’ His Honour said that it was clear that this provision was breached, as in doing his work the driver was required to step back away from the rear of the truck and towards the revolving connection. Only one step brought him into contact with the connection. As a result there was not ‘sufficient working space’: at [36].14 In any event his Honour held that cl 136A was relevant. The employer had not ensured that the driver did not ‘pass in close proximity to the plant unless the risk of entanglement is controlled by guarding’: at [40]. There was no guarding in place (after the incident, it was introduced). 10.7 The odd feature about the majority judgment (especially that of Ipp JA) was the way that the introductory words of cl 136A(3)(d) were interpreted. The words ‘if it is not possible to eliminate the risk of entanglement in plant with moving parts’ were interpreted as if they amounted to a ‘defence’. As Spigelman CJ pointed out, the scheme of the OHSR 2001 had to be traced

back to cl 11, which required an employer either to ‘eliminate’ a risk, or, if this was not ‘reasonably practicable’, to ‘control’ it. Clearly, cl 136A(3)(d) was a part of this scheme by providing an explicit instruction as to how a particular risk is to be ‘controlled’. Spigelman CJ seemed to be correct when he said (at [44]): I am not satisfied that any kind of ‘guard’ or ‘system of work’ could completely ‘eliminate’ all risk of entanglement between clothes and moving parts under power.

Hence, since the risk of entanglement would always theoretically remain, cl 136A(3)(d) applied and required the employer to ensure appropriate guarding. As his Honour went on to point out, however, even if one took the view that it was possible [page 486] to ‘eliminate’ the risk, in this case it had clearly not been eliminated, and hence cl 11(1) had been breached (which required risks to be eliminated where reasonably practicable). However, Ipp JA approached the matter differently. His Honour accepted the view of one of the experts in the case that the risk could have been ‘eliminated’ by guarding. As a result, he ruled (at [243]) that cl 136A(3)(d) did not apply in this case. However, he did not go further, as Spigelman CJ did, and comment that this implied a breach of cl 11 (partly because no reference to cl 11 had been pleaded by the plaintiff’s lawyers). Ipp and Hodgson JJA ruled against the worker on the lack of application of cl 136A. (This result points to the need, when framing claims, to understand the context of the whole legislation.) It should be noted that (although this matter does not affect the outcome of the case) it is apparent that certain remarks made by Ipp JA in this case were made without proper assistance from counsel about the structure of the Act and Regulations, and were made per incuriam (that is, they were wrong). This applies to his

Honour’s comments (at [199] ff) where he referred to the provisions of OHSA 2000 s 108 relating to ‘penalty notices’ as if they governed all offences under the Act. In fact, the ‘penalty notice’ provisions of s 108, and the corresponding designation under OHSR 2001 cl 353 of certain offences under the Act as ‘penalty notice’ provisions, set up a scheme similar to the ‘on-thespot’ fines available for traffic offences. Certain minor breaches of the Act could be dealt with by an accused accepting their liability immediately rather than having to go through a court process. However, the fact that the ‘penalty notice’ provisions did not cover other provisions of the Act did not mean that those other provisions were not ‘offences’ against the Act; nor did the fact that some breaches could have been dealt with ‘on the spot’ remove the ability of a prosecutor to choose to take a matter through a full court process. So the fact, as his Honour noted (at [202]), that a breach of cl 45 was not listed in OHSR 2001 Sch 2, did not mean (as his Honour said (at [206])) that a breach of cl 45 was not a separate ‘offence’. It clearly was, as indicated by the specific penalty provision which appeared in the clause itself. 10.8 The previous discussion related to the question of ‘fencing’ machinery, a matter dealt with under FSIA s 27. It was also noted above at 10.3 that the question of ‘access’ under FSIA s 40 was commonly litigated. There was no precise equivalent to FSIA s 40 in the OHSR 2001, but a number of specific provisions in Pt 4 of the Regulation, dealing with the ‘Working Environment’, were relevant to most accidents that might occur. Thus OHSR 2001 cl 34(1), for example, required the ‘controller’ of premises used as a place of work to identify hazards concerning the access to, egress from or use of the premises.15 To take another example, cl 39 dealt with safe access to places from which someone might fall. [page 487]

10.9 How does the new WHSR deal with these issues? WHSR Ch 5 deals with obligations in relation to plant, and within Pt 5.1 there are no less than three sets of obligations that relate to the guarding of plant: those imposed on the designers of workplace plant (cl 189); those imposed on manufacturers of plant (cl 194); and those relating to the general duties of people conducting a business or undertaking (PCBUs) which involves the management or control of plant (cl 208). For the purposes of this discussion the focus will be on cl 208. Clause 208 applies to a PCBU with responsibilities including management of plant (and, as noted in cl 203, is essentially a more detailed explanation of obligations owed under the head legislation, the Work Health and Safety Act 2011 (NSW) (WHSA) s 21). It applies ‘if guarding is used as a control measure in relation to plant at a workplace’: cl 208(1). This seems slightly odd at first glance: does it mean that it is now optional for a PCBU as to whether or not they guard dangerous machinery which might either drag someone in or spit out harmful objects? No — it seems clear that in most cases, once the appropriate ‘risk control’ analysis has been taken under WHSR Ch 3,16 guarding of machines would usually be at least one of the appropriate control measures. (Of course in some cases it may be possible to physically locate a machine somewhere where no human being will ever approach it, and in that case guarding would be unnecessary. However, there would not be many examples of such a workplace system, especially since presumably at least maintenance of machines will be occasionally necessary.) If guarding is to be used — as in most cases — then cl 208 deals in detail with the appropriate type of guarding. Clause 208(2) sets up a ‘hierarchy’ of guarding measures: 208 Guarding (2) The person with management or control of the plant must ensure that: (a) if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed physical barrier, or

(b) if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time, or (c) if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b), the guarding used is a physical barrier that can only be altered or removed by the use of tools, or (d) if it is not reasonably practicable to use guarding referred to in paragraph (a), (b) or (c), the guarding includes a presence-sensing safeguarding system that eliminates any risk arising from the area of the plant requiring guarding while a person or any part of a person is in the area being guarded.

[page 488] In descending order of desirability, the clause requires either a permanently fixed physical barrier, an interlocking physical barrier, a barrier that can only be removed by tools, or a ‘presencesensing safeguarding system’ (defined separately in WHSR cl 5(1)).17 Other matters dealt with under cl 208 include making the guarding as difficult as possible to bypass (cl 208(3)(b)) and requiring the guarding to protect against the ejection of things from the machine (cl 208(4)), which covers the issues raised in Mummery noted at 10.5). Interestingly, in light of the major role these machine-guarding provisions have played over the years, cl 208 was the subject of one of the earliest decisions under the WHSR, in Smith v Olga’s Fine Foods Pty Ltd [2014] SAIRC 39. While in South Australia, this case was decided under the model regulations, and so in the same form as the New South Wales law. A conveyor belt occasionally needed oiling, guarded by a defective guard which could be easily opened. An employee’s finger was crushed. A fine of $15,000 out of a maximum of $30,000 was handed down, though discounted for an early plea to $10,500. Safe means of access to, and exit from, a place of work

(equivalent to the former FSIA s 40) are required under WHSR cl 78(4).18

Construction Safety Act 1912 (NSW) 10.10 Prior to 1978, the Construction Safety Act 1912 (NSW) (CSA) was known as the Scaffolding and Lifts Act 1912; see the Scaffolding and Lifts (Amendment) Act 1978 (NSW) for the name change. It dealt with the construction industry generally, but it took a different approach to the FSIA. Instead of providing detailed requirements in the Act, this Act left most of the details to the Regulations, the Construction Safety Regulations 1950 (CSR). The CSR were very detailed. Some important regulations were: reg 73, which contained a number of obligations which were cast on the person who undertakes construction work: safe scaffolding, safe means of access, fencing where work is taking place more than 1.8 metres from the ground, lighting, and protection against items falling from overhead, to name just a few.19 A number of cases required the courts to wrestle with the question of who was responsible for [page 489] duties under the regulation in the complex set of contracts and subcontracts that are often involved in a construction site;20 and reg 84(5), which required that an area where persons might be injured as a result of demolished or other material falling, be fenced or barricaded.21 Under the OHSR 2001, construction work was dealt with in some detail in former Ch 8 cll 209–264. In addition, there were many general obligations concerning the workplace environment under OHSR 2001 Ch 4 which replicated duties under the previous

regulations: see, for example, cll 56–61 which referred to a number of issues to do with working at heights. 10.11 Under the current WHSR, Ch 6 deals with construction work and Pt 6.3 concerns the duties of a PCBU conducting such work. Work at a height (where a person might fall more than two metres) is classified as ‘high risk construction work’ under cl 291(a). Where such work is undertaken the PCBU must ensure that a ‘safe work method statement’ has been prepared under cl 299. Under cl 300 the PCBU must ‘put in place arrangements for ensuring that high risk construction work is carried out in accordance with the safe work method statement’. In addition to these specific ‘construction’ requirements, there are also general obligations in relation to fall risks under Ch 4, in Pt 4.4 cll 78–80. The decision in Victorian Workcover Authority v Stoddart (Vic) Pty Ltd [2015] VSC 149 concerns the Victorian regulations, but also has some interesting discussion of regulations dealing with a fall from height which are similar to those in the WHSR.

Overview of WHSR 2011 10.12 There are many provisions in the new Regulation that need to be taken into account in specific workplace circumstances. In this overview we cannot exhaustively detail all these provisions; however, you should be aware that the WHSR covers the following areas: Chapter 1 — Preliminary, Definitions: defines the scope of the Regulation. Importantly, key terms used are defined in cl 5. Chapter 2 — Representation and participation: provides detail about the appointment of WHS Representatives and Committees, and entry into workplaces by ‘WHS entry permit holders’. Chapter 3 — General risk and workplace management: this will be examined in more detail below (see 10.13), as it provides

a key ‘risk management’ framework for the rest of the Regulation. [page 490] Chapter 4 — Hazardous work: there are a number of specific precautions that must be taken in common risk situations: for example, work in confined spaces, risks of falling, noise, demolition work, electrical work, diving, and ‘high risk work’ (which is defined in Sch 3 to include such things as scaffolding, ‘dogging’ and rigging work, and operation of pressure equipment). High risk work will usually require a specific licence issued under Pt 4.5. Part 4.2 deals with risks created by ‘hazardous manual tasks’; the decision of the Victorian Court of Appeal in Deal v Kodakkathanath [2015] VSCA 191 (Deal) spends some time examining the analogous Victorian regulations on this topic in the context of a civil claim for breach of statutory duty.22 Chapter 5 — Plant and structures: obligations on PCBUs, designers, manufacturers and suppliers in relation to plant and structures. The chapter also deals with requirements for registration of the design of certain types of plant to be used in the workplace. Chapter 6 — Construction work: as mentioned above at 10.11, this chapter imposes obligations on PCBUs and also ‘principal contractors’, as well as construction workers themselves. It provides in detail for appropriate ‘induction procedures’ for those who enter construction sites. Chapter 7 — Hazardous chemicals: as with the previous regulations, this deals with specific ‘materials safety data sheets’ required for particular hazardous chemicals, as well as other matters, including, specifically, work with lead. Chapter 8 — Asbestos: provides detailed rules for dealing with, and removing, this very hazardous substance.

Chapter 9 — Major hazard facilities: replicates fairly closely previously agreed national rules governing these facilities (for example, chemical plants or oil refineries), which are required to be licensed and to supply and operate under a ‘safety case’ plan. Chapter 10 — Mines: this chapter is empty in New South Wales as mining safety is dealt with under the newly commenced (1 February 2015) Work Health and Safety (Mines) Act 2013 (NSW) and the Work Health and Safety (Mines) Regulation 2014 (NSW). Chapter 11 — General: contains a number of general provisions, dealing with appeals or applications to review decisions, exemptions, and some other miscellaneous matters (for example, identity cards for inspectors). Schedules: a number of Schedules to the Regulation contain important detailed information; for example, defining ‘high risk work’ or ‘hazardous substances’. In particular, attention will need to be paid to Sch 18B for some years, as it deals with ‘transitional arrangements’ which apply where someone may have committed an offence before the WHSA commenced, and outlines how this is to be dealt with by the courts. The table below attempts to summarise these provisions. [page 491] Table 10.1:

Transitional Arrangements for OHS/WHS Prosecutions

When offence committed

When proceedings commenced

Before 1 Jan 2012

After 1 Jan 2012

After 1 Jan 2012

After 1 Jan 2012

Law that will be applied to determination of the offence OHS Act 2000 — see WHSR 2011 Sch 18B cl 2

WHS Act 2011

Venue (which court will hear the matter)

Relevant transitional provision re venue See WHSR 2011 Sch 18B cl 3

Either Local Court or District Court (summary) or Supreme Court (OHS Act 2000 s 32) Either Local WHSA 2011 s Court or District 229B (1), (2),

Court (cat 2 or 3) or Industrial Court (cat 3); or Supreme Court (cat 1)

(3)

Risk management provisions under OHSR 2001 and WHSR 10.13 A major set of provisions, which will potentially have to be considered in all workplaces, is contained in WHSR Ch 3. Part 3.1 requires a system of risk management to be in place. A similar, though longer, set of provisions was contained in OHSR 2001 Ch 2. However, there are some interesting changes between the two regimes. In many ways the new WHSR requires less than the previous law.

Risk management under former OHSR 2001 10.14 The progression of clauses in the OHSR 2001 through Ch 2 was reasonably logical. Former cl 9 started with the obligation to ‘identify hazards’. The obligation was cast on an ‘employer’, although by virtue of the definitions provision in cl 3(1) ‘employer’ included ‘self-employed person’ where occurring in Ch 2. Clause 9(2) provided a useful checklist of areas from which hazards may be anticipated, including work premises, practices, plant, substances, manual handling and a range of other matters. Clause 9(3) then clarified at what specific points in time it was necessary to make sure hazard identification procedures were in place, ranging from when premises, plant or practices are first used, to the situation where new information becomes available. 10.15 The other regulations then flowed logically from hazard identification. Former OHSR 2001 cl 10 required the assessment of ‘risks’ in relation to the identified hazards — presumably a ‘risk’ is

the chance that a hazard will actually eventuate. The Regulation did not require the preparation of a written risk assessment in every case, although there were other more specific regulations (former cll 78, 168 and 207) [page 492] where documentation was automatically required (in situations dealing with confined spaces, hazardous substances, and certain electrical work where apparatus cannot be de-energised before the work is carried out). However, it would have been a wise practice for risk assessments generally to be documented in some way, as this would provide helpful evidence of compliance with this Regulation — and the Act — should a prosecution have eventuated. In this regard see, for example, the comments of Boland P in Cahill v New South Wales (Dept of Community Services) (No 3) [2008] NSWIRComm 123 at [322]: There is no statutory requirement for an employer to conduct a formal, structured risk assessment by, for example, allocating a risk score or a rating using a risk matrix, although given the requirement in reg 10 of the Occupational Health and Safety Regulation 2001 to assess the risk of harm to the health or safety of the classes of persons nominated in the regulation, it is highly advisable.

10.16 There was a successful prosecution against an employer for a breach of OHSR 2001 cl 10 in Workcover Authority of New South Wales (Inspector De Leon-Stacey) v Sydney Diagnostic Services (NSW) Pty Ltd [2005] NSWCIMC 179. It was established that there was a failure to assess the risk of harm to employees working in data entry from the layout and conditions of their workstations. Note that, while failure to conduct a risk assessment was not a direct breach of the Act (as opposed to the Regulation), it may have provided evidence that there was a breach of the Act in ‘failing to ensure’ safety. Boland P spelled this out in Inspector

Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 at [110]–[111]: It is clearly the case that a failure to conduct a risk assessment may be a contravention of the regulations. However, more relevantly, where a failure to conduct a risk assessment causes employees to be exposed to a risk to their health and safety, in the same way as a failure to train may also cause exposure to risk, the failure may lead to the employer being found liable for contravening the relevant general duty under Division 1 of Pt 2 of the Act. Although the Act itself does not expressly say the words ‘an employer must perform risk assessments’, it implicitly requires that risks be identified and eliminated where reasonably practicable. Further, the Court has repeatedly stated that risk management is an important process by which an employer may fulfil its obligations under the Act: see, for example, WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85; Kennedy-Taylor at [62]–[63]; Mainbrace Constructions.

Section 29(2) of the OHSA 2000 supported this approach by making a breach of the Regulation admissible in evidence in proceedings for an offence against Pt 2 of the Act. 10.17 Once a risk assessment was undertaken, former cl 11 required that measures be put in place to eliminate or, if this was not ‘reasonably practicable’, to control each risk. Former cl 5 required a ‘hierarchy’ of control measures to be applied in a specific order. This is now replicated in current WHSR reg 36, to be discussed below at 10.23. Presumably there are hazards which might be identified and risks assessed which are so remote or so small that their elimination is not ‘reasonably practicable’, and [page 493] where minimising them to the ‘lowest level reasonably practicable’ might involve doing nothing. An example might be the risk in a factory where the yard is open to the sky, of an employee being hit by a falling meteor. Erecting a meteor-proof roof or requiring employees to wear body armour would be seen to be precautions

that were too expensive in relation to the size of the risk. The ‘calculus’ used by the courts in determining breach in negligence cases23 would seem to be equally relevant here. However, as those cases reveal, at levels above the ‘far-fetched and fanciful’ example of meteors, even a quite small chance of a serious risk, where the preventative measures are not onerous, will probably create a need to respond with a control measure of some sort. 10.18 An interesting example of a case where there was a prosecution involving a failure to follow the proper ‘hierarchy’ of control measures is Linfox Armaguard Pty Ltd v Farrell [2005] SASC 44. Anderson J of the Supreme Court of South Australia dismissed an appeal against a conviction handed down by an industrial magistrate. The company had been required to deal with the risk to armoured car drivers’ hearing, which was created by the loud noise made when the armoured car doors were closed. The Occupational Health, Safety and Welfare Regulations 1995 (SA) reg 2.10.3(3) required that noise issues be addressed by a hierarchy of approaches, moving from engineering controls (diminishing the actual noise produced) through administrative controls (instructions to employees on how to avoid the noise) to personal protective equipment. The company — without properly investigating the issue — had decided that engineering controls were too expensive, and maintained that it was entitled to rely on laying down a safe operating procedure. The magistrate disagreed, finding that there was evidence to show that affordable engineering controls should at least have been investigated more carefully. 10.19 Following is an example of how the hierarchy of control might work in practice.24 Suppose the risk is identified to be that of a driver changing a flat tyre on a commercial vehicle. There are obvious dangers in performing this operation on the open road. One approach could be substitution — that is, someone other than the driver is designated to do the job; for example, a

commercial organisation which could be on call. Isolation would involve removing the vehicle from the area where other traffic is present so that the employee is not exposed to the danger of collisions. An engineering solution might be to develop a new type of tyre that does not burst, or else improve the tyre changing equipment in order to speed up the process and lessen the time the driver is exposed to the danger. Administrative solutions would involve ensuring the drivers are adequately trained and know how to do the job efficiently and where to position the vehicle. And the deployment of personal protective equipment might involve the use of gloves or high-visibility vests to reduce the dangers. [page 494] 10.20 Beyond the core obligations in former cll 9–11, the other regulations provided sensible associated obligations: to review risk assessments and control measures where they may not be adequate (cl 12); to provide instruction, training and supervision (cll 13, 14); and to ensure that personal protective equipment, if needed, did what it was supposed to do and was ‘properly maintained’ (cl 15). Clause 15 raised the interesting questions which lay behind the United Kingdom provisions considered in the House of Lords decision in Fytche v Wincanton Logistics plc [2004] UKHL 31. In that case, a milkman who had been supplied with steel-capped boots to protect his feet against crushing, suffered frostbite when working in cold and icy conditions because there was a hole in the boot. However, the majority of the House of Lords held that, since the boots were still suitable for protection against crushing, there had been no breach of regulations requiring them to be ‘safe’. It could have been argued that OHSR 2001 cl 15(1)(d), by requiring that equipment be ‘properly maintained’, avoided that odd result, but as can be seen from the division within the House of Lords, it would be possible to view this obligation simply in terms of the

specific risk.25 Under OHSR 2001 cl 16, there was an obligation to obtain information needed to conduct proper hazard identification and risk assessment, and cl 17 required that plans be put in place for the event of an ‘emergency’ in the workplace.

Risk management under WHSR 10.21 Under WHSR Ch 3, Pt 3.1 deals with risk management. It seems to be given a limited scope, however, by cl 32, which provides that the Part ‘applies to a person conducting a business or undertaking who has a duty under this Regulation to manage risks to health and safety’. It is odd that this provision requires there to be a specific duty under the Regulation to manage risks, rather than applying it to all those who have a duty under the Act to do so. So, for example, PCBUs generally have a duty to ‘ensure health and safety’ under WHSA s 19, as do many other duty holders under Pt 2 of the Act. Section 17 of the Act, headed ‘Management of risks’, provides that a duty to ensure health and safety means that the person must either eliminate or minimise risks. This is clearly a description of ‘risk management’. It seems, then, that anyone with an obligation to ensure safety under the Act has a duty under the Act to manage risks to health and safety. But does that mean they have a duty under the Regulation to do so? It seems not. Duties imposed under the WHSR are additional to those under the Act. The result seems to be that a conscious decision has been made to limit the obligations to manage risks to those who are explicitly said to have such an obligation under the Regulation. The following table lists those provisions of the Regulation that specifically require the management of risks. They are often, in the WHSR, linked to a specific provision of the Act by a brief note at the end of the clause. Clause 9 refers to this practice: [page 495]

9 Provisions linked to health and safety duties in Act If a note at the foot of a provision of this Regulation states ‘WHS Act’ followed by a reference to a section number, the clause provision sets out the way in which a person’s duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the clause provision. Note. A failure to comply with a duty or obligation under a section of the Act referred to in a ‘WHS Act’ note is an offence to which a penalty applies.

The intended effect of cl 9 is presumably to make it clear that, if one of these provisions of the Regulation is breached, that will provide strong evidence of a breach of the ‘linked’ provision of the Act. Table 10.2:

Persons with duty to conduct risk management under WHSR 2011

WHSR provision

Person with a duty to manage risks

Clause 48 Clause 51

PCBU re remote or isolated work PCBU re hazardous atmosphere at the workplace PCBU re ignition source in a hazardous atmosphere PCBU re object which may fall and injure a person PCBU re risks of noise-related hearing loss PCBU re a musculoskeletal disorder associated with a hazardous manual task PCBU re risks associated with work in confined space PCBU at a workplace re risks associated with a fall PCBU re electrical risks PCBU re general diving work Person with management or control of plant at a workplace re risks associated with plant Person with management or control of powered mobile plant re enumerated risks PCBU re construction work PCBU re excavation work Principal contractor for construction project re enumerated risks

Clause 52 Clause 54 Clause 57 Clause 60 Clause 66 Clause 78 Clause 147 Clause 176 Clause 203 Clause 214 Clause 297 Clause 305 Clause 315

Linked to duty under WHSA WHSA s 19 WHSA s 19 WHSA s 19 WHSA s 19 WHSA s 19 WHSA s 19 WHSA s 19 WHSA s 19 WHSA s 19 WHSA s 19 WHSA s 21 WHSA s 21 WHSA s 19 WHSA s 19 WHSA s 20

Clause 351

PCBU re risks associated with hazardous chemicals Owner of a pipeline used to transfer hazardous chemicals re risks associated with the transfer of the hazardous chemicals through that pipeline

Clause 389

WHSA s 19 No explicit link to WHSA

[page 496] Table 10.2:

Persons with duty to conduct risk management under WHSR 2011 – cont’d

WHSR provision

Person with a duty to manage risks

Clause 391

PCBU who is operator of a pipeline used to transfer hazardous chemicals re risks associated with the transfer of the hazardous chemicals through that pipeline Person with management or control of workplace re risks of naturally occurring asbestos

Clause 431

Linked to duty under WHSA WHSA s 19

WHSA s 20

In addition to the provisions of the WHSR listed in the above Table, it should also be noted that cl 9(1) of the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (made pursuant to the Work Health and Safety (Mines and Petroleum Sites) Act 2013) now requires that a PCBU at a mine or petroleum site must manage risks to health and safety associated with mining operations or petroleum operations at the mine or petroleum site in accordance with Part 3.1 of the WHSR.26 10.22 The set of provisions appearing in Table 10.2 is a diverse mix of obligations. It ranges from the fairly general (cl 203) to the very specific (for example, cl 389). A person in control of ‘plant’ used for work (cl 203) will be required to undertake risk management pursuant to cl 32. However, there may be a group of duty holders under the Act who are not specifically required to undertake risk management. For example, PCBUs under the Act are expected to manage risks in relation to safe systems of work, under s 19(3)(c). But this is not a risk management obligation

imposed by the Regulation, and so arguably the provisions of Pt 3.1 of the Regulation will not apply. It may be that there has been a conscious attempt to ‘pull back’ from risk management procedures in some areas because of an apparent tendency on the part of some businesses to regard the process as simply a ‘box-ticking exercise’. However, properly implemented, risk management seems an obvious approach to foreseeing and dealing properly with dangerous aspects of work. It is to be regretted that it now applies only to a more limited group of activities. 10.23 What obligations are imposed on those who have to comply with Pt 3.1? In brief: Foreseeable hazards are to be identified under cl 34. [page 497] Risks arising from those hazards are to be eliminated or minimised under cl 35 (which effectively replicates WHSA s 17). A hierarchy of risk control measures is to be applied under cl 36. Those control measures are to be maintained (cl 37) and reviewed to ensure they are still appropriate (cl 38). The ‘hierarchy’ in cl 36 is very similar to that imposed under former OHSR 2001 cl 5. However, the rigidity of the previous order is slightly altered. Control measures are to be applied as follows: Under cl 36(3), one or more of a ‘menu’ must be chosen from the following: substitution, isolation, or engineering controls. (It seems that no particular order is prescribed within this list — a ‘duty holder’ would be entitled, apparently, to move straight to ‘engineering’ controls without considering substitution or isolation.) Administrative controls may be used under cl 36(4). Personal protective equipment may be used under cl 36(5).

The result seems to be that the Linfox case noted above (at 10.18) would be decided in the same way under this version of the ‘hierarchy’, as the employer would have been required to eliminate as much risk as possible by using engineering or other means before simply choosing an ‘administrative’ method. 10.24 This brief overview of the Regulation is concluded by addressing the application of the WHSR to a set of previously noted facts. It will be recalled that in Fytche v Wincanton Logistics plc [2004] UKHL 31 (see 10.20 above), the House of Lords held by majority that there had been no ‘defect’ in safety boots supplied to a milk delivery driver, which had a small hole allowing ice water to enter, as the particular ‘risk’ for which the boots had been supplied was the risk of crushing, rather than the risk of frostbite. It was known that deliveries had to take place in snowy and icy conditions. How would the new Regulation apply in this situation? 10.25 Matters to do with ‘plant’ and equipment (into which category it seems safety boots would fall)27 are regulated under Ch 5. Under cl 203, ‘a person with management or control of plant at a workplace must manage risks to health and safety associated with plant, in accordance with Part 3.1’. One can only assume that an employer who provides safety boots has the ‘management or control’ of the boots, at least at the point when they are supplied. This means that a risk management process must be undertaken. Under cl 34, the employer must ‘identify reasonably foreseeable hazards that could give rise to risks to health and safety’. The reason the boots have been supplied may be to address the risks of crushing, but it seems clear that the boots are themselves ‘plant’. One of the hazards of using boots in a cold and snowy environment is that the boots may not be waterproof. Hence this risk must either be eliminated or minimised, under cl 35. [page 498]

Assuming that if a delivery driver is sent out into a snowy environment it is impossible to eliminate the risk of frostbite completely, then the hierarchy of control measures under cl 36 must be considered. It would seem to be impossible to isolate the driver completely from the snow, or to ‘substitute’ the snow for some other substance. Engineering means may be possible but very expensive — for example, replacing the driver with a milkdelivery robot. Administrative means appear inappropriate. For example, changing the delivery system to require customers to walk out to the milk-truck in the snow to collect the milk would be inadvisable. Hence at the end of the process it seems reasonable to use high-quality ‘personal protective equipment’ (PPE) — in other words, safety boots. 10.26 Clause 36(5) requires that the equipment be ‘suitable’, which leaves us with the same question that the House of Lords faced — when is PPE ‘suitable’? When it deals with the specific risk it was aimed at? Or does it also have to be generally safe to deal with other risks? The WHSR actually contains a further provision to resolve this issue. Clause 44 details what is to be supplied where PPE is required as a control measure under cl 36. Clause 44(3)(a)(i) requires that the equipment be ‘suitable having regard to the nature of the work and any hazard associated with the work’. Hence it is necessary to consider not just ‘the’ hazard that may have led to the decision to use the PPE, but also ‘any’ hazard associated with the work. In the situation outlined above, this means that the danger of frostbite must be considered as well as the danger of crushing; hence it is likely that on the facts the employer would have been guilty of a breach of cl 44.

Further Reading There is little published comment on the WHSR yet. However,

the following works consider previous WHS regulations and their interpretation by the courts, and may prove helpful in interpreting the current Regulation. A Brooks, OHS Law in Australia, 4th ed, CCH, North Ryde, 1993. H Glass, M H McHugh and F M Douglas, The Liability of Employers in Damages for Personal Injury, 2nd ed, Law Book Co, Sydney, 1979. N Gunningham and D Sinclair, ‘Regulation by Stealth: Codes of Practice under Harmonised Work Health and Safety Legislation’ (2014) 27 Australian Journal of Labour Law 163–187.

1.

See 7.13.

2.

As we will see below at 10.6, in one of the first significant appellate decisions considering the application of the Occupational Health and Safety Regulation 2001 (NSW) (OHSR 2001), Estate of Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340, the Court of Appeal considered cl 136 (as it then was; later cl 136A). In the course of the judgment their Honours referred to a previous High Court decision, Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, which involved s 27 of the former FSIA. The Act was later called the Shops and Industries Act 1962, once the provisions dealing with ‘factories’ had been removed: see the OHSA 2000 Sch 2.4[1]. It was then repealed entirely by the Shop Trading Act 2008 (NSW) s 24 with effect from 1 July 2008. However, for the purposes of this discussion of the pre-September-2001 law we will continue to refer to it by its former name.

3.

4. 5.

A Brooks, OHS Law in Australia, 4th ed, CCH, North Ryde, 1993, ¶1102. Brooks, note 4 above, Ch 11.

6.

For cases dealing with this issue see, for example: O’Reilly v Commonwealth Hostels Ltd [1964–5] NSWR 686 (a kitchen in a hostel was not a ‘factory’); Williams v Grain Handling Authority of NSW (SC(NSW), Allen J, 21 October 1986, unreported) (terminal storing grain was held not to be a factory); ADI Ltd v Hawkesbury City Council [2000] NSWLEC 203 (testing of electromagnetic equipment not sufficiently part of the manufacturing process to be covered by the definition); Hawkesbury City Council v Sammut [2002] NSWCA 18 (tractor repair shed held to be a ‘factory’ for planning purposes); Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264 (roof of a factory was part of the factory for the purposes of the Act). For cases dealing with the meaning of ‘occupier’ (again, slightly extended beyond the normal meaning of that word) see Ross v WGE Pty Ltd (1998) 44 NSWLR 510;

7.

Peters v H & B Investments Pty Ltd (1995) 11 NSWCCR 377; Reynolds v Plaspak Pty Ltd (SC(NSW), CA, Mason P, Priestley JA, Grove AJA, 15 October 1997, unreported). 8.

9.

10.

11. 12.

13.

14.

15.

16.

17.

For cases relevant to this provision see: Cofield v Waterloo Case Co Ltd (1924) 34 CLR 363; Mummery v Irvings Pty Ltd (1956) 96 CLR 99; Dairy Farmers Co-operative Ltd v Azar (1990) 170 CLR 293; O’Reilly v Commonwealth Hostels Ltd [1964–5] NSWR 686; Zarb v Visyboard Pty Ltd (SC(NSW), James J, 13 July 1995, unreported); Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397. See AIS Pty Ltd v Luna (1969) 44 ALJR 52; Reynolds v Plaspak Pty Ltd (SC(NSW), CA, Mason P, Priestley JA, Grove AJA, 15 October 1997, unreported); Wood v Ansett Transport Industries Operation Pty Ltd (SC(NSW) Common Law Division, Howie AJ, 15 December 1997, unreported); State Rail Authority of New South Wales v Barnes [2001] NSWCA 133; Markuse v Western Sydney Area Health Service (SC(NSW), Grove J, 30 July 1992, unreported); Archer v George Weston Foods Ltd (SC(NSW), Dunford J, 24 November 1995, unreported). The specific provisions relating to guarding of moving parts were initially numbered cl 136 (and it is this provision which is discussed in the cases noted below). But for some reason this clause was later renumbered cl 136A, with cl 136 prior to its repeal dealing with a requirement to ensure plant meets any registered design requirements. Mummery v Irvings Pty Ltd (1956) 96 CLR 99, noted in Chapter 6, at 6.26. See note 10 above. I will refer in the text to cl 136A, since this was its ‘name’ immediately before its repeal, even though the cases mentioned were decided when the provision was designated cl 136. The case also involved a claim in common law negligence, which also saw a division in the court, the majority (Ipp and Hodgson JJA) holding that there had been no breach of duty, while Spigelman CJ would have found that there was a breach. Another feature of the case worth noting is that by the time it reached the Court of Appeal the injured worker had already received a settlement from the owners of the farm; the litigation here involved a claim for ‘contribution’ to damages by the farm owners against the worker’s employer (effectively, a dispute between two insurance companies). Ipp JA, however, took the view (at [220]) that the word ‘sufficient’ involved an element of judgment in the particular circumstances, and that as this practice had not resulted in a reported injury of a similar nature in the past, the space allowed was arguably ‘sufficient’. The trial judge, Sully J, had also ruled that there was sufficient space. (Hodgson JA in the Court of Appeal (at [58]) agreed on this point with Ipp JA.) And in light of the fact that the old s 40 was also heavily litigated for civil purposes, it is perhaps not surprising that its ‘descendant’, cl 34, featured in the Court of Appeal decision of Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149, which was discussed in Chapter 6 at 6.15. Note that under WHSR cl 203, a person in charge of workplace plant must ‘manage risks’ under Ch 3.1. In that chapter, cl 36 sets out a hierarchy of control measures that must be used. See ‘Details of Successful Prosecution against E182919’ at . 18.

19.

20.

21. 22.

23. 24. 25. 26.

27.

The odd thing about this general provision is that it is ‘buried’ in cl 78, the heading to which refers to ‘Management of risk of fall’. But the clear words of cl 78(4) require ‘safe means of access to and exit from: (a) the workplace’, and they are not on their terms confined to workplaces where there is the risk of a fall (which are separately dealt with in cl 78(2)). On general principles of statutory interpretation, the clear and unambiguous words of cl 78(4) seem to cover any and every workplace. For cases on reg 73 see Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1; Transfield Pty Ltd v Fallavolita (1984) 154 CLR 531; Iskra v Adar Electrics Pty Ltd (1986) 6 NSWLR 282; Antanasios Valmas v Trevor Nyman (SC(NSW), James J, 12 November 1996, unreported); Scott v S & E Visser Pty Ltd [2000] NSWSC 265. See HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422; White v Canberra Furniture Manufacturing Pty Ltd [1999] ACTSC 53; Rauk v Transtate Pty Ltd; Restile Pty Ltd v Transtate Pty Ltd [2000] NSWSC 1020; Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264; see also the discussion of similar South Australian provisions in Complete Scaffold v Adelaide Brighton Cement [2001] SASC 199 at [61]–[82]. Some other cases on breach of statutory duty discussed in Chapter 6, at 6.30, also relate to regs 73 and 74. See Peitsos v Hamandos (1984) Aust Torts Rep ¶80-524. See in particular the overview of this area provided by Digby AJA, and citation of N Foster ‘The Merits of the Civil Action for Breach of Statutory Duty’ (2011) 33 Sydney Law Review 67 in [335] at n 111. The High Court has granted special leave to appeal the decision in Deal: see Deal v Kodakkathanath [2015] HCATrans 333, but at the time of writing the outcome of the appeal was not known. See Chapter 5. Acknowledgment is given to a former student, Jim Sheather, for this scenario. His comments have been slightly modified here. We will consider the impact of the WHSR on this situation below at 10.24. Note that this provision is said in cl 9 to be supported by ss 19, 20 and 21 of the WHSA, and that under s 4 of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 that Act ‘is to be construed with and as if it formed part of the WHS Act, and the regulations under this Act are to be construed with and as if they formed part of the WHS Regulations’. See also the following provisions of the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014, which require the management of risks: cll 28 (movement of mobile plant), 31 (explosives and explosive precursors), 32 (electrical safety), 38 (temperature and moisture content of air), 43 (fatigue), 44 (alcohol and drugs), 44A (belt conveyors), 44B (induced seismic activity), 50 (dust explosion), 66 (spontaneous combustion), 67 (subsidence), 68 (sealing), 69 (light metal alloys), and 70 (‘goaf areas’ and abandoned or sealed workings.) See the definition of ‘plant’ in WHSA s 4: ‘any machinery, equipment, appliance, container, implement and tool’. By convention the meaning of words in a regulation is that which is given to them in the authorising Act, unless there is a

clear contrary intention.

[page 499]

Part 4 WORKPLACE SAFETY AND THE GENERAL LAW 11. Workers’ Compensation under Statute 12. Workplace Health and Safety and Anti-discrimination Law 13. Workplace Safety and Litigation

[page 501]

11 WORKERS’ COMPENSATION UNDER STATUTE

Aims The aims of this chapter are: to introduce the principles behind the statutory workers’ compensation schemes; and to explore the New South Wales workers’ compensation regime in detail, as an example of such a scheme.

Objectives After completing this chapter you should be able to: identify the type of connections with the workplace needed in New South Wales for statutory workers’ compensation to be payable; and provide some general advice about the circumstances in which such compensation will be available.

Introduction and general principles Background to workers’ compensation 11.1 This chapter examines statutory workers’ compensation. We move from the area of criminal sanctions for workplace safety breaches, back to that of provision of compensation for accidents. That is, instead of aiming penalties at employers, this legislation tries to provide compensation to workers for injury suffered at work. This also then hopefully has a flow-on to the behaviour of employers, as an employer whose safety record is good will pay less in insurance premiums than another whose record is not so good. Historically, workers’ compensation legislation was first introduced in England in 1897, with other common law jurisdictions following in the early part of the twentieth century. The first New South Wales legislation, for example, was enacted in 1910, to later be replaced by legislation coming into force in 1926. The Workers’ Compensation Act 1926 (NSW) remained the operative legislation in that state until 1987, when the Workers Compensation Act 1987 (NSW) (WCA 1987) was introduced. [page 502] Johnstone et al list the major equivalent legislation in other states.1 As each state has unique legislation in this area it is not possible to cover every version in detail in this chapter. The New South Wales legislation has been chosen as the basis for an indepth analysis. However, Appendix 8 at the end of the book provides a comparison table that gives a broad overview of the legislation in the other states, and outlines where the issues dealt with in this chapter are covered. 11.2

The

primary

legislation

dealing

with

workers’

compensation in each Australian jurisdiction2 is shown in Table 11.1 as follows: Table 11.1: Jurisdiction ACT Cth NSW NT Qld SA Tas Vic WA

Workers’ compensation legislation in Australia Primary legislation Workers Compensation Act 1951 Safety, Rehabilitation and Compensation Act 1988 Workers Compensation Act 1987; Workplace Injury Management and Workers Compensation Act 1998 Return to Work Act3 Workers’ Compensation and Rehabilitation Act 2003 Return to Work Act 2014 Workers Rehabilitation and Compensation Act 1988 Workplace Injury Rehabilitation and Compensation Act 2013 Workers’ Compensation and Injury Management Act 1981

The initial legislation was enacted partly to address the difficulty that workers experienced under the common law system in recovering damages for negligence from employers. As discussed in Chapter 4 at 4.9, the doctrine of common employment meant that an employee could not recover damages for an accident caused by another employee. The doctrines of contributory negligence and voluntary assumption of risk meant that where the employee themself was at fault in any way liability might also be denied. The statutory schemes were designed to replace and/or supplement common law recovery. [page 503] Even though there has been a liberalisation of the principles of common law liability in recent years, the statutory workers’ compensation schemes have continued, and are an important part of the system for compensating workplace injury.

General principles of workers’ compensation 11.3 The basic features of the workers’ compensation schemes can be set out in four propositions: 1. Compensation is payable for an injury that has a connection with the employment — traditionally, an injury that arises ‘out of or in the course of employment’.4 2. Payment of compensation is not dependent on establishing fault on the part of the employer, nor (with a few exceptions) is it affected by the fault of the worker, so long as there is the relevant connection with employment. 3. A range of benefits are payable but most are fixed at an upper limit, and there are specific amounts payable for specific types of injuries. 4. The system is based on the premise that all employers will be insured, so that no worker is denied benefits due to the impecuniosity of their employer. There are specific provisions covering the situation where an employer has failed to take out adequate insurance, to be discussed at 11.116.5

Workers’ compensation and other compensation 11.4 Workers’ compensation can be distinguished from the other two main sources of money for an injured worker, as shown in Table 11.2 below. Table 11.2:

Comparison of income support options for injured workers

Eligibility

Need to prove fault?

Workers’ compensation Injury connected with employment

Social security

No

No

Injury occasioning loss of income

Common law damages Injury which is attributable to negligence or breach of statutory duty Yes (except in some breach of statutory duty cases)

Form of payment

Mixture of lump sum and weekly benefit

Amount of payment Related to lost earnings, expenses but statutory maximum

Usually weekly or other periodic payment Set at common income support amount unrelated to earnings, expenses

Usually ‘once-and for-all’ lump sum Designed to compensate for all loss of earnings, expenses, etc: no maximum for economic loss

[page 504] As can be seen, each option has its benefits and disadvantages. The common law option has the potential to provide the most money, but it requires proof of some negligence, or breach of a relevant statute, and as discussed in Chapter 5, it is not possible under the current law in New South Wales unless certain areas of likely recovery exceed certain lower limits. Social security is the easiest option for an injured worker to access; however, it provides limited payments. The workers’ compensation avenue provides a higher level of payments, and is the route most often used.

Legislative scheme 11.5 Workers’ compensation generally is not an area that has yet been statutorily ‘harmonised’, and so as noted above each state and territory, and the Commonwealth, have their own legislation.6 For the sake of explaining the principles that are generally shared across the jurisdictions we will use the New South Wales legislation as an example. (Some assistance in comparing the New South Wales provisions with other legislation is provided in Appendix 8.) In New South Wales, two major Acts need to be taken into account: the Workers Compensation Act 1987 (NSW) (WCA 1987), and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWCA 1998).

As a simple summary, the way they interact is that the WCA 1987 deals with the liability to pay and receive compensation, while the WIMWCA 1998 deals with the procedures for making claims, and with rehabilitation. In addition, the WIMWCA 1998 contains most of the provisions dealing with insurance. 11.6 However, there is a provision in the WCA 1987 — s 2A — that states that the Act is to be read as if it were a part of the WIMWCA 1998. This means that a reference to ‘this Act’ in either of the Acts includes the other one — which could be seen as a sure recipe for some subsequent drafting problems. 2A Relationship to Workplace Compensation Act 1998

Injury

Management

and

Workers

(1) The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as the 1998 Act. (2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act. (3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.

[page 505] The note to WIMWCA 1998 s 4 provides: Note. Section 2A of the 1987 Act provides that the 1987 Act is to be construed with, and as if it formed part of, this Act. Accordingly, a reference in this Act to this Act generally includes a reference to the 1987 Act.

For a case where the court had to wrestle with the implications of reading one Act as if it were included in the other, see Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236, which we will discuss in more detail at 11.13.7 A number of significant changes to the relevant legislation were

made by the Workers Compensation Legislation Amendment Act 2012 (2012 Amending Act), following the report of a Joint Select Committee of Parliament.8 Most of the amendments we will be discussing applied retrospectively to injuries occurring on or after 19 June 2012 (when the legislation was introduced into Parliament) — for the specific commencement provisions see the following clauses in Sch 6 Pt 19H of the WCA 1987: lump sum amendments (including abolition of ‘pain and suffering’ awards), under Sch 2 to the 2012 Amending Act: cl 15 of Sch 6 Pt 19H; nervous shock amendments (already discussed when we looked at negligence in Chapter 4), under Sch 3: cl 16 of Sch 6 Pt 19H; journey claims, under Sch 5: cl 18 of Sch 6 Pt 19H; heart attack and stroke amendments, under Sch 6 (new s 9B): cl 19 of Sch 6 Pt 19H; and disease definition, under Sch 7: cl 20 of Sch 6 Pt 19H. The amendments, however (which seem on their face to cover all workers) are specifically said in cll 25 and 26 of Sch 6 Pt 19H of the WCA 1987 not to apply to police officers, paramedics, firefighters or coal miners. This means that the legislation as it operated prior to 27 June 2012 will be applied to claims by that select group of workers. For this reason, and since for a couple of years people will still be making claims based on injuries suffered prior to 19 June 2012, we will outline the previous law in this chapter as well as the post-2012 situation. (See the paper by Robinson noted in the Further Reading list at the end of this chapter for more information about the amendments.) It should be noted that, while the 2012 amendments were generally viewed as being fairly harsh on injured workers, a series of announcements at the end of 2015 indicated that some of the reduced benefit levels would be restored.9 [page 506]

Persons entitled to receive benefits: ‘worker’ Definition 11.7 Who is entitled to receive benefits under the WCA 1987? The basic entitlement provision is set out in s 9(1): 9(1)

A worker who has received an injury (and, in the case of death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.

The definition of each of the highlighted words needs to be found elsewhere in the Act (or in WIMWCA 1998) in order to clarify: the people entitled to compensation; the circumstances in which compensation is payable (for example, the definition of ‘injury’ requires a connection with the employment); and who is liable to pay.

Worker 11.8 We will first examine the question, who is a ‘worker’?10 The term is defined in WIMWCA 1998 s 4(1) in this way: 4(1)

… worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing) …

This is then followed by four specific exemptions.11 The definition clearly relies very heavily on the common law notion of a ‘contract of service’, which was considered in Chapter 3. Remember that to establish that there is a contract of service (as opposed to a ‘contract for services’) you need to apply the Stevens v

Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513 approach. This involves examining a range of so-called ‘indicia of employment’, one of the most important of which is the question of control: does the employer have the right to control the [page 507] way the work is done? The issues raised by the High Court decision in Hollis v Vabu Pty Ltd [2001] HCA 44 will also need to be considered; however, space does not permit a detailed examination of that material here.12 Note that s 5 and Sch 1 to WIMWCA 1998 further extend the definition to certain other classes of workers who would not otherwise be regarded as employees: for example, some contractors (Sch 1 cl 2); ministers of religion (Sch 1 cll 17 and 18) and trainees under a ‘declared training program’ (Sch 1 cl 19).13 In QBE Workers Compensation (NSW) Ltd v Simaru Pty Ltd [2005] NSWCA 464, the court ruled that a woman who sold Bessemer products on a commission basis fell within the terms of Sch 1 cl 5 as a ‘salesperson’, despite the fact that Bessemer had described her in some documents as a ‘distributor’ and had tried to re-name the money she received for sales so that it was not called a ‘commission’. 11.9 Important provisions now specifically deal with the situation of ‘labour hire’ workers.14 Clause 1 of Sch 1 covers the situation where the usual employer of a person lends that person to work for someone else. It provides as follows: 1 Workers lent or on hire If the services of a worker are temporarily lent or let on hire to another person (the labour buyer) by the person with whom the worker has entered into a contract of service or a training contract (the labour hirer), the labour hirer is,

for the purposes of this Act, taken to continue to be the employer of the worker while the worker is working for the labour buyer.

Therefore, whatever view of the relationship that the common law rules might lead to, in this situation the worker’s ‘usual’ employer will be regarded as the employer of the person ‘for the purposes of’ WIMWCA 1998, and hence (it seems) for all purposes of the WCA 1987 (since the words ‘this Act’ in the 1998 Act include the 1987 Act: see 11.6). 11.10 Clause 2A deals with the situation where the labour hire firm may not be the full employer of the worker, but may simply be arranging the placement of the worker. This has the effect that where a labour hire firm supplies a worker who would otherwise be regarded as a ‘contractor’ — because they are not employed by either the [page 508] labour hire firm or the host, such as in Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 99 ALR 735 discussed in Chapter 3 at 3.21 — then, so long as the ‘contractor’ is not running their own business or employing anybody else, the labour hire firm will be regarded as the employer for the purposes of WIMWCA 1998, and probably the WCA 1987.15 The definition of ‘worker’ will of course include ‘part-time’ workers and casual workers, as well as those engaged for five days a week. In the case of Webb v Chapman (1997) 42 NSWLR 721, Cole JA in the New South Wales Court of Appeal accepted that the definition of a ‘part-time’ worker was someone who ‘pursuant to a contract of employment, express or implied, works only part of a week’: at 723D. In contrast, a ‘casual worker’ is defined in s 43(1) (e) of WCA 1987 as someone:

43(1)(e) … whose contracts of service are mainly contracts for separate periods each of which is of not more than 5 working days in the same industry.

11.11 We also need to note the provisions of WCA 1987 s 20. Section 20 applies where a principal engages a contractor who then employs a worker, and it eventuates that the contractor is not insured under the Act. In that case the principal will be regarded as the person liable to pay compensation in the event of an injury to the worker (not to the contractor). The contractor, of course, will also be liable as the worker’s employer, and may also be sued; however, this will often be a futile exercise if they are uninsured. Note that under WCA 1987 s 40(4) if there is a person who fits the s 20 definition of ‘principal’ who can be sued, then the worker is unable to access the Uninsured Liability Fund: see Mohammed Ali v Saad Bros Constructions Pty Ltd [2001] NSWCC 109. Dokoza v Stadkite Pty Ltd (1997) 42 NSWLR 544 was a case involving the interpretation of this section. A worker (D) was employed by a ‘family company’, KWCS Pty Ltd, which was contractor on a job for S Pty Ltd (the principal). One of S Pty Ltd’s employees was negligent and caused injuries to D. D sued S Pty Ltd for common law damages, as vicariously liable for the injuries caused by its employee. This was met by the claim that D’s damages could not be recovered, as Pt 5 of the Act applied to limit common law damages under a certain amount: see the discussion in Chapter 5. The basis of the claim that damages were precluded was that under s 20 of the Act, S Pty Ltd were treated as D’s ‘employer’. However, the Court of Appeal held that this deeming under s 20 only applied for the purposes of ‘compensation under this Act’; that [page 509]

is, the statutory amounts, and not in relation to common law damages. The common law action could proceed unlimited by Pt 5 of the Act, as the basis of the action was not that D was the employee of S, but that D had been injured by someone for whose actions S were vicariously liable. 11.12 This case is an illustration of the fact that the question of whether the ‘deeming’ provisions under consideration — not only s 20, but also the extended definition of ‘worker’ in WIMWCA 1998 Sch 1 — are only applicable for the purposes of the statutory compensation scheme, or whether they may have some impact on the worker’s legal status for other purposes, is not always an easy question to answer. In Fortescue (Junior) v Morrasey [2000] NSWCA 193, a majority of the New South Wales Court of Appeal also held that the deeming provisions under the workers’ compensation legislation should not be used to determine the employment status of a litigant in a common law damages application.16 A similar view was taken by Ipp JA in Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8, although it was not necessary to resolve the question in that case. In Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 (Shaw), Basten JA in the Court of Appeal argued in favour of the Sch 1 extensions of the definition applying to the common law provisions of the WCA 1987: at [103]–[114]. This was, as his Honour noted, consistent with the views of Kirby J in the High Court in Klein v Minister for Education [2007] HCA 2 at [45]. 11.13 This issue was been resolved in favour of Basten JA’s view in Shaw by the decision of the Court of Appeal in Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236 (Ebb). Basten JA, who gave the main judgment, reviewed the history of the legislation and noted that there were indications in predecessor provisions that both statutory and common law entitlements were affected. More importantly, however, he pointed out that the current WCA 1987 contains s 2A, which requires it to be treated ‘as if it formed a part of’ WIMWCA 1998. Since the deeming provisions in Sch 1 to that

Act are explicitly said to operate ‘for the purposes of this Act’, and since s 2A requires a reference to ‘this Act’ in WIMWCA 1998 to be read into WCA 1987, then simple logic requires that a reference to ‘worker’ in WCA 1987 picks up the deeming provisions in WIMWCA 1998. Hence, when WCA 1987 Pt 5 s 151E(1) provides that Pt 5 applies ‘to an award of damages in respect of an injury to a worker’, and under s 151F that ‘A court may not award damages to a person contrary to this Division’, the result is that the limits imposed by Pt 5 apply to actions by those contractors referred to in WIMWCA 1998 Sch 1. The effect of this decision is that a fairly diverse group of what the common law would regard as ‘independent contractors’ will find their damages claims subject to the limits imposed under Pt 5 of the 1987 Act.17 [page 510] The deeming of certain persons to be ‘workers’ for the general purposes of Pt 5 limits on damages does not, however, mean that they are always workers for the purposes of other parts of the legislation. In Racing NSW v NSW Self Insurance Corp [2008] NSWSC 6 Einstein J ruled that where a provision referred to the ‘employer’ of a jockey, the deeming provisions from Sch 1 to the 1998 Act did not operate, and the term meant ‘common law employer’. The effect of Ebb was also considered in Keeble v Murray [2014] NSWSC 151, a complicated interlocutory decision involving a question as to which of a number of insurance companies was liable to be sued for injuries sustained by a jockey.

Dependants 11.14

As well as the worker, WCA 1987 s 9 includes in the class

of people entitled to benefits the dependants of a worker who is killed.18

Persons bound to contribute to benefits: ‘employer’ 11.15

The definition of ‘employer’ in WIMWCA 1998 s 4(1) is:

employer includes: (a) the legal personal representative of a deceased employer, or (b) a government employer, or (c) a former employer. Without limiting the meaning of the expression, an employer can be an individual, a corporation, a firm, an unincorporated body of persons, a government agency or the Crown.

Again, because of the use of the word ‘includes’, it is clear that the definition relies heavily on the common law use of the word ‘employer’ or the older word ‘master’. Defining whether a person is an employer will also involve defining whether the injured worker is a ‘worker’ or ‘employee’. One area in which problems can arise is if the employer is a club or voluntary society of some kind which is not legally ‘incorporated’ under such legislation as the Associations Incorporation Act 2009 (NSW). In such a case there may be difficulties in determining who the employer really is.19 [page 511]

Injury 11.16 Having established that there is a worker, employed by an employer, the next issue that must be decided is whether or not there is an ‘injury’.

Definition 11.17 The definition of ‘injury’ is set out in WCA 1987 s 4 (as amended from 27 June 2012):20 “injury” — (a) means personal injury arising out of or in the course of employment; (b) includes a “disease injury”, which means: (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and (c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined. [emphasis added]

Prior to 27 June 2012 former para (b) read as follows: ‘injury’ — … (b) includes(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and

As can be seen, the 2012 amendments were designed to make it harder to satisfy the definition of ‘injury’ in the case of diseases, by adding a requirement that the relevant employment must now be the ‘main’ contributing factor to the disease. It should also be noted, though it is not entirely clear what further difference this [page 512]

will make, that while personal injuries may be compensated if they arise ‘out of or in the course of’ employment (as we will see below, these are two distinct connecting factors), a disease injury may now only be compensated if it arises ‘in the course of’ employment.

Dust diseases: para (c) of the definition 11.18 In brief, dust diseases are dealt with under the separate system established by the Workers’ Compensation (Dust Diseases) Act 1942 (NSW). Cases involving these issues are now heard initially before the specialised Dust Diseases Tribunal, set up by the Dust Diseases Tribunal Act 1989 (NSW) (DDTA).21 The tribunal deals with most claims for asbestos-related diseases, for example, mesothelioma, and generally any ‘pathological condition of the lungs, pleura or peritoneum that is attributable to dust’: DDTA s 3(1).

Three types of injury 11.19 Apart from dust diseases, the definitions in paras (a) and (b) cover three separate types of ‘injury’:22 1. personal injury, where the connection with the employment is that it must ‘arise out of or in the course of’ the employment; 2. disease; and 3. aggravation etc of a pre-existing disease. As noted above, it is now clear that for a disease, the employment concerned (since 2012) must have been ‘the main contributing factor’ to the disease: para (b)(i). Similarly, for any aggravation etc of a pre-existing disease to be compensable, again the employment must have been ‘the main contributing factor’ to the aggravation etc: para (b)(ii). Previously (prior to June 2012) the legislation simply provided

that the contracting of the disease (or aggravation) must have been ‘contributed to’ by the employment: former paras (b)(i), (ii). What difference does this make? In effect, under the old law, the employment need only have been one causal factor; now it is presumably necessary for the court to sort out the whole range of causal factors, to make a judgment about which was the ‘main’ causal factor. So a condition which was sparked off by a work situation, but which was ‘mainly’ caused by an underlying condition of the worker, might not meet the new requirement. In State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 (16 December 2015) Roche AP in the Workers Compensation Commission gave [page 513] some consideration to this new concept, in ruling that a Senior Arbitrator had been at liberty to find, on the medical evidence provided, that a long period of employment as a bus driver had been the ‘main contributing factor’ to the exacerbation of a preexisting spinal disease suffered by the worker. It was not an error of law (the only basis for an appeal) for the arbitrator not to explicitly balance out employment and possible non-employment related causes for the exacerbation, when the medical evidence which was accepted gave sufficient grounds for the finding to be made: see [84], [116]. (In an interesting aside, Roche AP pointed out (at [18]–[19]) that the definition of ‘injury’ in the 1998 legislation was still in the old form, requiring only that employment be a ‘contribution’ to the disease rather than the ‘main contributing factor’; that s 2A of the 1987 Act required that the two Acts be ‘read as one’; and that where there was a clash between the two, the 1998 Act was to prevail! However, as counsel had not sought to argue the logical consequence, that the 1998 definition was still operative, the

Acting President resolved the case on the basis that the post-2012 amended 1987 Act definition was the relevant one. It will be interesting to see if this matter is addressed in future litigation.)23

‘Disease’: para (b) of definition — may disease also be ‘injury’? 11.20 One issue that troubled the courts for some time is this: are the different paragraphs of the definition of ‘injury’ mutually exclusive, so that any one injury must either be para (a) or para (b), but not both? Or do the definitions overlap? In other words, can something that in ordinary language would be a ‘disease’, also be regarded as an ‘injury’? Interestingly, the ‘raising of the bar’ for disease injuries noted above is likely to make all the more relevant this old debate, that seemed to have died out for a few years. That is because it will now be in the interests of a worker to show that what they have suffered is a para (a) ‘personal injury’, not a para (b) ‘disease injury’, so as not to have to jump the higher hurdle of ‘main contributing factor’. (In addition, as noted previously, a personal injury may be compensated if it arises ‘out of’ employment, as well as ‘in the course of’, whereas disease injuries must arise ‘in the course of’ the employment, the ‘causal’ link not being available.) Whether this argument is still tenable given the different wording of the provision remains to be seen. Still, we review here the history of this debate. [page 514] Early decisions: disease might be ‘injury’ 11.21 A number of old cases held that the word ‘injury’ on its own was wide enough to cover most diseases, especially where the disease entered the body through some cut or wound, or

occasioned some physiological damage to the organs of the body, such as a heart attack. So, in Hume Steel Ltd v Peart (1947) 75 CLR 242, Latham CJ, in the High Court, said (at 252–3): [I]t requires little analysis to show that an injury may be either external or internal. It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death.24

Privy Council decision: if disease, not ‘injury’ 11.22 Ironically, however, since the specific reference to disease was added to the definition of ‘injury’ in 1942, the courts later went on to hold that this led to a narrowing of the definition of ‘personal injury’ in the first part of the definition. The result, on the approach that was adopted by a number of courts, is that it would not be sufficient to show that an injury that was the result of a disease arose ‘out of or in the course of employment’. Rather, it would be necessary to also prove that the employment actually contributed to the disease (or the aggravation etc of the disease). This was the result of the decision of the Privy Council in Slazengers (Aust) Pty Ltd v Burnett [1951] AC 13. This was followed by the High Court in Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482,25 and reaffirmed by the High Court in Hockey v Yelland (1984) 157 CLR 124. The consequence of these decisions was that where an injury resulted from a disease, it was necessary to go beyond showing simply that it arose ‘out of or in the course of’ employment; there must have been some connection of a causal nature established between the disease and the employment. Decision in Zickar: disease and injury not mutually exclusive 11.23 The decision of the High Court in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; 71 ALJR 32 (Zickar) radically

changed this position, and effectively overruled a number of decisions previously regarded as binding. The move away from the apparent harshness of the rule could be seen clearly in the New South Wales Court of Appeal decision in O’Neill v Lumbey (1987) 11 NSWLR 640. There, a shearer on a journey from home to work suffered a cerebral haemorrhage, [page 515] which was found to be the rupture of an aneurism. The trial judge found that the event was not a part of a disease, but amounted to a ‘personal injury’. The majority of the Court of Appeal agreed with the trial judge, but Kirby P, while agreeing with the policy arguments of the majority, dissented, arguing that the case was indistinguishable from the previous High Court decisions.26 His Honour was given another chance to deal with the question after his elevation to the High Court, in Zickar. The case came to the High Court from the New South Wales Court of Appeal.27 The worker suffered a stroke while at his place of work. Remember that it was necessary, according to previous authority, to distinguish between a plain ‘injury’ and a ‘disease’. While at that time an injury could have been compensated for even if the only connection with employment was a temporal one (that is, the worker was at work),28 a disease was only compensated for if there was a causal relationship with the employment. In this case, Meagher JA summed up the policy of the scheme in this way (at 628): An employer must take an injured worker as he finds him, but is not responsible for a manifestation of a pre-existing disease whose only connection with employment is that it coincides with working hours.

11.24 O’Neill v Lumbey (1987) 11 NSWLR 640 seemed to strike at this distinction because the court said it was open to the trial judge to find that the rupture of an aneurysm, as a result of a

congenital weakness, was an injury and not a disease. In MGH Plastic the wheel turned again, and a differently constituted Court of Appeal29 found that in such circumstances the stroke must be classified as a disease, not an injury. In other words, where the stroke is occasioned by a congenital fault, one that the worker was born with, or as a result of a gradually developing condition of some sort, the final stroke will be viewed simply as manifestation of the disease and not as an injury. In that case, then, the Court of Appeal took the view that the rupture of an aneurism, or a stroke, will normally be regarded as a manifestation of a disease, and will only be compensable if connected in some way with the employment, or if exacerbated by employment. 11.25 The High Court overruled that decision. The decision30 was a 4:3 judgment, with Brennan CJ and Dawson and Gaudron JJ in the minority, asserting that the court ought to continue to follow Hockey v Yelland. The majority judges handed down two separate decisions: Toohey, McHugh and Gummow JJ on the one hand, and Kirby J on the other. [page 516] The combined majority judgment of Toohey, McHugh and Gummow JJ emphasised the need to interpret the specific language of WCA 1987 s 4. They stressed the fact that the definition of ‘injury’ in para (b) commenced with the word ‘includes’ — a sign that the definition is intended to expand, not restrict, the meaning a word would otherwise have. Their Honours concluded that the rupture of an aneurism, whatever the previous history of the worker, amounted to an ‘injury’ within the normal meaning of the word. Effectively, their Honours ruled that the simple existence of a disease did not prevent an incident resulting from that disease from also being regarded as an ‘injury’.

Kirby J said (at 186 CLR 347): … it would appear unlikely that [it] would have been Parliament’s intention, in expanding the scope of recovery for ‘injuries’, to bring about a consequence of excluding from compensable ‘injuries’ a number which had long since been held to fall within the primary definition.

Kirby J’s judgment contains a helpful discussion of the principles that a superior court ought to apply in deciding whether to overrule its own previous decisions. He indicated that the question was a difficult one, but concluded on balance that the error that had been previously made was so basic, and affected the rights of individuals so greatly, that it ought to be corrected. He stated (at 186 CLR 351): Where [the] law has become distorted by error, this Court will hesitate to condone and perpetuate the error, particularly where doing so deprives persons of benefits, often crucial for sustenance, which a correct construction of the legislation provides.

11.26 Kirby J (at 186 CLR 351) summarised the law as a result of his decision, which will, it seems probably represent the law generally in Australia at present: No longer is there a dichotomy between ‘personal injury’ in its full sense and ‘disease injury’ within the additional part of the definition. A worker is entitled to succeed if he or she can bring a claim within either head of recovery. Logically, the first question to ask, including in cases which might otherwise be classified as manifestations of a ‘disease’, is whether, notwithstanding that manifestation, the case falls within the primary definition of ‘injury’ as a ‘personal injury arising out of or in the course of employment’. In that context, the word ‘injury’ should not be given a narrow meaning.

There will still be cases where no ‘injury’ has occurred; these might be described as situations of ‘pure’ disease. However, if there is some rupture or breaking, even if the result of a pre-existing disease, it will probably now fall within the definition of ‘injury’. 11.27 In the subsequent case of Health Insurance Commission v Van Reesch [1996] FCA 1118, the Full Court of the Federal Court of Australia applied Zickar. Van Reesch was suffering from back disease, but on one particular occasion alleged a specific injury

that worsened the condition. The Full Court found that, while a disease was present, the claim was being made on the basis of a particular ‘rupture’ and hence qualified as an injury. [page 517] The Federal Court took a similar approach in Australian Postal Corporation v Simon John Burch [1998] 944 FCA, holding that a stroke suffered by a postman while on his rounds fell within the definition of ‘injury’ and did not have to be characterised as a ‘disease’. However, there are still cases where the distinction between the two will be significant. In Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253, Burke J held that ‘carpal tunnel syndrome’ was a disease and not an injury, while acknowledging that since Zickar there was no hard and fast line between the two in all cases. In Manning v New South Wales Sugar Milling Co-operative Ltd [2003] NSWCA 230, it was held that ‘cardiac arrhythmia’ was not an ‘injury’ as there was no evidence of any internal ‘rupture or breaking’: at [25] per Sheller JA. Reaffirmation of Zickar in Kennedy v Petkoska 11.28 Any lingering doubt about the effect of the Zickar decision (see 11.23 ff), however, was put to rest by the further decision of the High Court in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; [2000] HCA 45. The facts of that case were that Mrs Petkoska suffered a stroke while engaged in cleaning duties. It could not be shown that the stroke was specifically related to her work. She could only recover compensation if her stroke was an ‘injury’ under the relevant Australian Capital Territory legislation, which was basically the same as the New South Wales legislation at that time. The stroke was caused by a ‘lesion’ or injury to the brain.

By a 6:1 majority (Callinan J dissenting) the court upheld the decision in Zickar that a stroke may be a ‘personal injury’. In particular, the majority rejected any suggestion that Zickar should be overruled, as it was a recent and carefully considered decision of a Full Bench of the court on this precise point. Gaudron J, who participated in the dissent in Zickar, agreed that the decision should now stand. The circumstances of Mrs Petkoska’s case could not be distinguished from Mr Zickar’s case. Gleeson CJ and Kirby J in the majority summed up the effect of the Zickar case in these terms (at [39]): All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment.1 If the propounded ‘injury’ is distinct from the underlying pathology that constitutes a ‘disease’ that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.2 [emphasis added] 1.

Higgins v Galibal Pty Ltd (1998) 45 NSWLR 45 at 52 citing Mills, Workers Compensation (New South Wales), 2nd ed (1979) at 3.

2.

Zickar (1996) 187 CLR 310 at 335; McIntosh [1991] 2 VR 253 at 262.

[page 518] 11.29 It is perhaps worth noting — though it is not directly relevant to the New South Wales situation — that the Commonwealth Government subsequently decided to overturn the effect of these decisions in relation to the legislation covering Commonwealth employees.31 In Hubbard and Military Rehabilitation and Compensation Commission [2009] AATA 363, however, it was ruled that a stroke could be an ‘injury’ for the purposes of the Australian Capital Territory (not the general

Commonwealth) legislation — although in the circumstances it did not have a sufficient connection with the employment. Further discussion of the application of Zickar can be found in J Robins & Sons Group Ltd v Ly [2006] NSWWCCPD 162. More recently, in Szajna v Australian Postal Corporation [2014] FCA 1136 the worker had suffered a heart attack while at work, and there was clear evidence that he had a pre-existing disease. But Rangiah J, after a careful review of Zickar and other cases, concluded that (contrary to what the employer claimed) there was no hard and fast rule that something which was the result of a preexisting disease could not also be an ‘injury’, so long as there was a ‘sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’: see the summary at [76]. Hence the worker’s heart attack could be described as an ‘injury’ and happened ‘in the course of’ his employment.

Exclusion of heart attack and stroke claims 11.30 While there is now more incentive (since the June 2012 amendments) to claim that harm suffered is a ‘personal injury’ and not a ‘disease injury’, any attempt (as in those cases noted above) to argue that a heart attack or a stroke amounts to a personal injury will now be met by s 9B.32 9B No compensation for heart attack or stroke unless nature of employment results in significantly greater risk (1) No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.33

[page 519]

So in order to succeed in a claim for a heart attack or stroke, the worker now needs to show a ‘significantly greater risk’ of such an event due to the nature of the employment concerned, in comparison to that associated with other employment. Hence the decision in Szajna, noted above, will not be applicable in New South Wales in case of a heart attack at work.

Personal injury: para (a) of the definition 11.31 Apart from disease, then, what qualifies as ‘personal injury’? Generally speaking it will be any sort of damage sustained to the body by trauma. The term will cover abrasions, cuts, tearing and breaking but it will probably also cover conditions such as sunburn and frostbite. It will clearly also cover internal damage such as a collapsed vertebra or a hernia. The intention of the Act also appears to be that ‘injury’ includes psychological as well as physical injury: see s 11A(3), which operates on this assumption. For a helpful discussion of some of the past cases on this point, see the comments of Walker J in Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45; (1998) 17 NSWCCR 70. His Honour concludes,34 particularly on the basis of the High Court decision in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, and supported by the decision in Bhatia v State Rail Authority (NSW) (1997) 14 NSWCCR 568, that a ‘purely’ psychological injury is as capable of being a ‘personal injury’ under the Act as a physical trauma. While imposing some limits on recovery in the area it covers, WCA 1987 s 65A confirms that a ‘psychological injury’ may be an ‘injury’ for the purposes of the Act.

Special provisions for diseases of gradual onset 11.32 Section 15 of WCA 1987 is required due to the existence of diseases that are not necessarily fully blown when they first manifest, but which gradually develop over a long period of time.

Examples include dust diseases such as asbestosis (which, as noted at 11.18, will now be dealt with under the separate dust diseases regime), the condition known as ‘boilermaker’s’ or ‘industrial’ deafness, and repetitive strain injury. Section 15 provides for two things to be determined in the case of a ‘disease which is of such a nature as to be contracted by a gradual process’: 1.

2.

it specifies the date on which the disease will be deemed to have been contracted (s 15(1)(a) — either the date of the worker’s death or incapacity, if either have so far resulted; or if not, the date of the application for compensation); and it determines against which employer the claim can be made (s 15(1)(b) — ‘the employer who last employed the worker in employment to the nature of which the disease was due.’)

The meaning of this last phrase is that if a worker is still engaged in the industry which contributed to the disease (note that for ‘pure’ disease it is necessary to show this causal link), then the worker can make the claim against the most recent employer. But if the worker has moved into some other type of work, which is unrelated to the [page 520] disease, then a claim will have to be made against the most recent employer in the relevant industry. A similar regime applies under WCA 1987 s 16 where the injury is due to the aggravation of a pre-existing disease. 11.33 Crisp v Chapman (1994) 10 NSWCCR 492 is a New South Wales Court of Appeal decision that illustrates the operation of s 15. A shearer suffered from back pain that was diagnosed as ‘spinal stenosis’. He could not prove that anything specific that had occurred during his work for his last employer had contributed to

the disease, but medical evidence established that the disease was probably a result of his 25 years’ work as a shearer. Powell JA and the other judges reaffirmed the principle that a worker who has contracted a gradual process disease can sue their last employer under s 15 of the Act, even though no direct link with the last employer can be shown, so long as ‘the disease is incidental to that class of employment’: at 23. Another example of the operation of s 15 can be seen in the decision of the High Court in Connair Pty Ltd v Frederiksen (1979) 53 ALJR 505. There a pilot established that he had developed a nervous condition from the stress of flying. As he was employed as a pilot at the time he made the claim, the court held that he could claim against his current employer, even though it was not possible to prove that his condition had resulted from the specific work he was doing at the time. 11.34 The result, then, is that if a disease of gradual process is due to a general type of work, then the claim can be made against the current or most recent employer. This will apply even though it is not possible to prove a specific connection with the actual conditions of the most recent employment. Another consequence of this, which is not immediately obvious, is that when the most recent employer is designated as the one liable, then the only other employers against whom contribution can be sought are those who have employed the worker in the last 12 months. Anyone who employed the worker earlier than that time avoids liability. That this is so was spelled out very clearly by the Court of Appeal in Colliar v Bulley [2000] NSWCA 1. The worker in that case had worked for two previous employers picking mushrooms, before starting work for a hotel. While working in the hotel she fell and suffered a blow to her knee. This blow led to the onset of a disease that had been partly contributed to by her mushroompicking work. However, as Davies JA pointed out, as she had stopped the mushroom-picking work more than a year prior to her

accident, if s 16 applied then the only employer who was liable was the hotel owner. In those circumstances, s 22 of the Act, which otherwise allows the apportionment of liability between different employers, did not apply. 11.35 Sections 15 and 16 therefore both provide special rules for the cases with which they deal, and exclude the operation of the other general apportionment provision. To assist the employee in proving a case under s 15, WCA 1987 s 19 allows the regulations to prescribe certain types of employment as automatically giving rise to the presumption that they contributed to certain types of diseases. There are also special provisions in s 17 of the Act relating to ‘industrial deafness’. This provision was inserted because the courts held that it could not be classified as a [page 521] ‘disease’, since it arose from a series of separate injuries, and therefore was not covered by the equivalent of s 15. Perhaps the main point worth noting is that there are slightly more generous provisions in s 17 giving an employer the right to recover damages from previous employers.

Restrictions on psychological injuries relating to ‘stress’ 11.36 It appears that s 11A of the WCA 1987 was inserted in light of concerns about cases where workers’ compensation might be payable in connection with a psychological injury flowing from a decision to retrench or discipline an employee. When first enacted s 11A provided that compensation for a ‘psychological injury’ would not be payable unless the employment concerned was a ‘substantial cause’ of the injury. That part of the section has

now been amended to align with the new ‘substantial contributing factor’ test: see the discussion at 11.86 below.35 Section 11A now provides: 11A(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.

Note that the section obviously leaves open the possibility for ‘unreasonable’ action in connection with employment to found a cause of compensable psychological injury. Some examples of cases in which s 11A was applied include: Dunn v Department of Education & Training [2000] NSWCC 11; (2000) 19 NSWCCR 475; Dawe v Twin Towns [2000] NSWCC 27 and Miller v Commissioner of Police NSW [2004] NSWCA 356 (where the disciplinary action taken in each case was judged ‘reasonable’). By way of contrast, in Thatcher v Commissioner of Police [2002] NSWCC 26, the Police Commissioner’s delay in informing the worker of the result of internal investigations, while part of ‘disciplinary’ procedures, was held not to be reasonable. See also Commissioner of Police v Minahan [2003] NSWCA 239, where it was also found that the Police Commissioner had acted ‘unreasonably’. 11.37 Reitano v Commissioner of Police [2004] NSWCA 99 holds that where it is claimed that s 11A is relevant it is necessary for a court or tribunal considering the matter to identify precisely what the action taken was ‘with respect to’. There, the power of the Police Commissioner had not been shown to have been validly exercised. In Bulga Coal Management Pty Ltd v Sager [2004] NSWCA 443, a worker’s employment was held [page 522]

to be a ‘substantial cause’ of his injury where he had developed a phobia about driving trucks after an earlier truck accident. In Department of Education and Training v Sinclair [2005] NSWCA 465 at [69], Spigelman CJ held that, in a case where there were a number of factors that contributed to the employee’s psychological illness, the s 11A defence might still be made out even if some of those factors were ‘unreasonable’ behaviour, if on an overall consideration the behaviour of the employer could be classed as ‘reasonable’: In view of the submission made to him, in my opinion, it was necessary for his Honour to form his own judgment as to whether or not the sole or predominant cause of the employer’s contribution to the Respondent’s psychological injury was reasonable action on the part of the Appellant, and to express reasons for that conclusion. The statutory test could not be satisfied merely by identifying two respects in which the Appellant’s conduct was unreasonable. It remained necessary to determine whether, notwithstanding those blemishes in the decision-making process, ‘reasonable action’ was the sole or predominant cause. On the submissions before his Honour, it was incumbent upon him to determine whether or not the sole or predominant cause was the employer’s reasonable action, in circumstances where the investigation itself, the delay in completing it, and the Transfer, were all found to be reasonable. His Honour did not address that issue.

11.38 In Jeffery v Lintipal Pty Ltd [2008] NSWCA 138, the court had to wrestle with a difficult question: what if the employer who dismisses or relocates an employee (and causes psychological harm) is themselves subject to directions from someone else? In that case a cleaner working for Lintipal was moved from one school to another because the company, a contract cleaning service, had been directed by the school principal to move the cleaner on the basis of allegations of improper conduct. Was the ‘reasonablenesss’ of the action to be found simply in the fact that the employer had a contractual obligation to the school to move the employee? Or should the reasonableness of the school’s direction also be considered? The Court of Appeal agreed that the decision in the matter had to be referred back to the Worker’s Compensation Commission because the Deputy President who had made the decision appealed from had concluded that the only relevant question was

whether the company honestly believed it was obliged to obey the direction from the school. However, there was a difference of opinion within the court as to the correct test. The majority (Hodgson JA and Rein J) concluded that the focus should be on the reasonableness of the action from the perspective of the employer company. They stated (at [3]): The question whether or not the school’s direction itself was reasonable is a factor relevant to the question whether or not the transfer was ‘reasonable action taken … by or on behalf of the employer’; but in my opinion, it would not be essential in this case for the respondent to prove that the direction given by the school was reasonable action taken by the school. The issue is the reasonableness of action taken by or on behalf of the employer; and even if the Deputy President was not affirmatively satisfied that the school’s direction was objectively reasonable action taken by the school, he still could be satisfied that the respondent’s action in transferring Mr Jeffery was reasonable action taken by or on behalf of the employer. [emphasis added]

[page 523] 11.39 On the other hand, Basten JA in dissent regarded the question of ‘reasonableness’ as one that had to be determined taking into account the actions of both the school and the employer, commenting (at [46]–[47]): Where the employer takes action on the basis of concerns of the education authority, the reasonableness of the action may need to take account of two elements. The first is whether it is contractually reasonable for the employer to accept an obligation to comply with a direction given by a responsible officer of the education authority. The second is whether the direction itself is reasonable in the circumstances. There was no suggestion in the present case that the contractual arrangement was not a reasonable one. In the absence of an improper motive, the officers of the employer may be acting reasonably in complying with what they believed were the contractual obligations of the employer. Nevertheless, if the direction given by the school principal were unreasonable, the action of transferring the employee may itself not be reasonable. The statutory purpose is effected by having regard to the action of transfer as a whole, including, where part of the responsibility is exercised by a third party with the agreement of the employer, the reasonableness of the conduct of the third party.

The majority approach, of course, is the one that is binding.

In ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27, a worker succeeded in a claim where, while some of the actions of the employer had been ‘reasonable’, others were not. It was held that the employer bears the onus of proving that the injury was ‘predominantly’ caused by its reasonable actions, and that had not been shown in this case.36 Another case where s 11A was applied to find that a retrenchment process was ‘reasonable’ is Ayoub v AMP Bank Ltd [2011] NSWCA 263. For a case involving a similar provision in the Safety Rehabilitation and Compensation Act 1988 (Cth) s 5A(1), denying recovery for psychological harm resulting from ‘reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’, see Dunkerley v Comcare [2012] FCAFC 132. There the worker complained that she suffered a condition resulting from a set of circumstances where she was short-listed for a position but failed to get it, alleging that she should not have been short-listed and subject to the embarrassment of not getting the job. The Full Court held that the lower tribunal had been right to find that the act of short-listing was ‘reasonable’, and within the legitimate discretion of the committee concerned. In Northern NSW Local Health Network v Heggie [2013] NSWCA 255 a security guard at a hospital had a violent interaction with a mental patient and his behaviour was then investigated. He later developed a psychological problem, which he claimed stemmed from the way that the hospital had conducted the inquiry into his behaviour. The Court of Appeal upheld a decision of an arbitator that the behaviour of hospital in [page 524] conducting the investigation was ‘reasonable’, and hence the

claim for compensation was rejected under s 11A. In Andrews v Rail Corporation NSW [2014] NSWWCCPD 7 a Deputy President of the Commission upheld an arbitrator’s decision that a period of four months which was taken up in investigating matters leading to a disciplinary action was ‘reasonable’ in the circumstances.

Connection with employment 11.40 We now turn to a general consideration of the required connection between the injury and the employment. It has already been established (see 11.19) that within WCA 1987 s 4 there are two different tests for ‘pure’ disease and injury, and that for ‘pure’ disease, the employment now must be shown to be the ‘main contributing factor’ to the disease (previously, as noted above, it was simply required to have ‘contributed to’ the disease).37 The definition of ‘injury’ has for some time required that before compensation will be granted a precondition for all injuries is that they arise ‘out of or in the course of’ employment. With the 2012 redefinition, the ‘out of’ limb no longer applies to ‘disease injuries’. It still applies to ‘personal injuries’. However, there is an additional requirement for personal injuries — that of ‘substantial connection’, under s 9A WCA 1987. Both requirements — that found in s 4 and that found in s 9A — need to be satisfied, as noted by the Court of Appeal in Larson v Commissioner of Police [2004] NSWCA 126 at [38]: The fact that both s 9A and s 4 require independent satisfaction has been pointed out recently by this Court: in Mercer v ANZ Banking Group (2000) 48 NSWLR 740 at 747– 748 [Mercer] per Mason P with whom Meagher and Beazley JJA agreed (where the phrase ‘arising out of or in the course of employment’ was being considered in the context of s 9A(3)) and McMahon v Lagana [2004] NSWCA 164 at [25] and [33] per Hodgson JA with whom Santow JA and Stein A-JA agreed. Accordingly, an injury may arise out of or in the course of employment (and so satisfy s 4) but in circumstances where the employment may not be a substantial contributing factor to the injury (and thus not satisfy s 9A). This point is also made clear in the wording of s 9A(3). Conversely, in a given circumstance, employment may be considered to

be a substantial contributing factor (and so satisfy s 9A) but the injury may not arise out of or be in the course of employment (and so not satisfy s 4).

Therefore, before examining s 9A, we need to determine the meaning of the phrase, ‘out of or in the course of’, which applies to all personal injuries, whether occurring before or after 1997.

General connection for all personal injuries: ‘out of or in the course of’ 11.41 The basic test to be satisfied for para (a) injuries is this: was it an injury ‘arising out of or in the course of employment’? [page 525] In the early days of the legislation these two phrases — ‘out of’ and ‘in the course of’ — were connected by ‘and’ rather than ‘or’. As a result, both of them needed to be satisfied. However, in recent years in almost all jurisdictions in Australia (and certainly in New South Wales) the connector has been ‘or’. This means that only one of the criteria to be covered has to be satisfied. The courts have read the phrases as covering two possibly different situations, and requiring two different kinds of connection.38 ‘Out of’: causal link 11.42 The phrase ‘out of’ the employment is described as the ‘causal’ factor. To establish this connection you need to show that there is some causal link between the employment and the injury. As Jordan CJ put it in Nunan v Cockatoo Docks and Engineering Co Ltd (1941) 41 SR (NSW) 119 at 124, the criterion will be met where: … the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury.

While the establishment of this link is required, previously the courts were often prepared to find the causal link established on an undemanding ‘but for’ test. This may have been due to the fact that in the early days of the operation of the legislation they were required to find both the temporal and causal link. The question is: ‘but for’ the employment would the particular injury have been suffered? Thus in Brooker v Thomas Borthwick & Sons (Australasia) Ltd [1933] AC 669, the Privy Council found that an employee who was crushed when his place of work collapsed in a New Zealand earthquake suffered an injury ‘arising out of his employment’. The High Court in Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504 found a similar result when an employee who suffered from diabetes fainted due to the illness while at work and injured himself by falling on some guardrails. The tendency of both courts was to say that any impact of the worker’s body with part of the machinery or the workplace would always be found to ‘arise out of the employment’. More recently Murphy J in the Federal Court applied those decisions in Telstra Corporation Ltd v Bowden [2012] FCA 576, when holding that an injury sustained by an employee who had to move a bulky obstruction out of a spot where he parked his car at work, was one that arose ‘out of’ his employment for the purposes of the Commonwealth workers’ compensation legislation. It was not necessary, his Honour held, to show that the injury was sustained when doing something that the employee was specifically ‘required’ to do: see, for example, at [48]. 11.43 In Kortegast v Williamson [2002] NSWSC 1134, Mathews AJ found that where a builder fell and was injured while having drinks after work with his employer, the injuries arose ‘out of’ the employment of the builder. His Honour stated (at [37]–[39]): The construction premises in the present case were private premises. The only people who were entitled to enter were those authorised by the owner or the

[page 526] employer, who in this case happened to be the same person, Mr Williamson. There was no social relationship between Mr Williamson and Mr Kortegast, and the latter’s presence on the site was referable solely to his employment. Accordingly, the ‘but for’ test has been satisfied. However as Mr McIntyre pointed out, passing the ‘but for’ test is a necessary but not a sufficient pre-requisite for establishing causation. Mr McIntyre submitted that Mr Kortegast’s presence on the site at the time of the accident was no longer a consequence of his employment. By that time, he urged, other factors had intervened to break the causal nexus between Mr Kortegast’s work and his continued presence in the house. Accordingly there was an insufficient link between Mr Kortegast’s injury and his employment to lead to a conclusion that the injuries arose out of his employment. Had Mr Kortegast’s injuries been attributable to some feature of the Rozelle house which bore no relationship to his employment, there would have been much to be said for Mr McIntyre’s argument in this respect. For example, had Mr Kortegast fallen on a slippery floor in that part of the house which was not under construction, then it might have been difficult to conclude that his injuries arose out of his employment (although they would probably still have arisen in the course of his employment). But in this case Mr Kortegast’s injuries were directly related to the work which he and Mr Williamson had been performing earlier that day. Mr Williamson was cross-examined by Mr Davies SC, for NZI, about the absence of any safety device such as a net to protect persons who might fall through the floor joists. Mr Williamson said that it would have been impracticable to provide a safety net, as he and Mr Kortegast were installing the joists from beneath, with the assistance of ladders. It follows that it was the very work which Mr Kortegast had been doing that day, and particularly the manner in which that work had been performed, which created the dangerous situation which in turn led to his injuries. This being so, the nature of Mr Kortegast’s employment to a material extent contributed to his injury. This is sufficient, according to the authorities quoted earlier, to establish that his injuries arose out of his employment. [emphasis added]39

11.44 A similar fairly generous approach was taken by the New South Wales Court of Appeal in Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10 (Davis). Davis had an argument with his supervisor because he had been ordered by his union to place a ban on loading some trucks. He subsequently suffered a nervous reaction due to the altercation. The court held that there was a direct link between the workplace situation and the reaction. As noted below (at 11.87), this generous approach was initially significant in relation to the ‘substantial connection’ provisions, as

the Court of Appeal in Mercer ruled that a ‘substantial connection’ under s 9A was less demanding than the ‘arising [page 527] out of’ connection.40 However, it is clear that this is not now the current approach following the decision in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324: see 11.99. In Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 (which we will call Pioneer No 1, as a later decision in the same litigation will be discussed below), the worker fell off a balcony on her way home from a birthday party for a fellow worker that had been held after normal working hours, in the employer’s premises. The court ruled that the worker had not established that her injury arise ‘out of’ her employment, as the evidence presented did not clearly establish the nature of her employment (as opposed to what the worker subjectively thought her employment entailed: see [29]). In the end the case was sent back to the Commission for further fact-finding because there needed to be more evidence about whether the party was in fact ‘work-related’. That there is still room for debate on these issues can be seen in the comments of Allsop P (at [25]) (agreed with by other members of the court): In Badawi, the Court was concerned with the correctness of the expression of views of Mason P (Meagher and Beazley JJA agreeing) in Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; 48 NSWLR 740. In one respect, the majority in Badawi (Allsop P, Beazley JA and McColl JA) was of the view that Mercer was wrong: the relationship between “arise out of” and “a substantial contributing factor”, and Mason P’s view that the former was more stringent than the latter (see generally Badawi at 516–520 [49]–[71]). In other respects, Mercer read with Badawi remains binding authority.

‘In the course of’: temporal link 11.45 The second, alternative, criterion is to show that the injury arose ‘in the course of’ the employment.

‘Out of’ but not ‘in’? 11.46 Note that an injury can be said to arise ‘out of’ but not ‘in the course of’ employment. In Carr v Donnelly [1937] WCR 294, a worker’s clothes had been soaked in sodium chlorate while at work; at home, standing by the fire, the clothes burst into flames. The causal link with the employment was established, even though at the time of the incident the worker was not ‘in the course of’ employment. More recently, in Central Coast Area Health Service v Evans [2004] NSW WCC PD 10, a nurse had been required to work a strenuous 17-hour shift and then fell after alighting from her car at home. Dr Fleming (Presidential Member of the Workers Compensation Commission) found that her injury, while not ‘in the course of’ employment — she was within the boundary of her property and therefore not within the ‘journey’ [page 528] provisions noted below at 11.61 — was caused by her employment and arose ‘out of’ the employment. However, it seems clear that there will be a point at which a causal connection becomes too remote, because too much time has passed. In Hubbard and Military Rehabilitation and Compensation Commission [2009] AATA 363 at [44], it was held that a worker’s stroke could not be said to have arisen ‘out of’ his employment with the RAAF, where it occurred some 22 years after that employment ended. General principle:temporal link 11.47 The phrase ‘in the course of’, then, establishes what might be called a looser link than ‘out of’; it is described as a ‘temporal’ link with employment. This does not, of course, simply

mean that any injury occurring during a period of time in which there was an employment contract in existence would be covered. But it does extend coverage to many cases where injuries occurred during working hours and at the workplace. Thus, it covers many cases where an employee was on some kind of break, or going to the toilet, or engaged in some other activity that was not necessarily directly required by the employer, but was permitted. In Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30, Windeyer J said (at 40): Anything at all that happens to a man while he is at work happens in the course of his employment.

His Honour was exaggerating slightly in criticising a view of the Act that he did not agree with, but felt bound to follow as it had become well established. The courts found, for example, that the ‘course of employment’ extended at the beginning and end of the working day to cases where someone was on the employer’s premises preparing to start work or finishing off. In one case it was held that a worker who had fallen asleep in the factory toilet during the normal working day was covered when injured after hours: Balmer v Country Producers Selling Co Ltd [1970] WCR 194. In the case noted above, Kortegast v Williamson [2002] NSWSC 1134, Mathews AJ ruled (at 30) that the builder’s injury also arose ‘in the course of’ his employment. … [T]he evidence shows that Mr Kortegast remained at his work place in the presence and with the encouragement of his employer for the whole period between the finishing of his work and the sustaining of his injuries. This being the case I do not think it could be said that the interval between periods of work had yet commenced when he sustained his injuries. It follows that his injuries were sustained during the course of his employment. [emphasis added]

11.48 The following are a few examples of situations covered by the temporal link. Educational leave

11.49 Where a worker was injured while attending an educational institution of some sort, a technical college or a university, were they covered? The cases tended to hold that a worker was in the course of employment while engaged in such training if the employer required attendance, if attendance was during working hours, and if [page 529] the employer paid fees. Whether all these factors needed to be established, or simply one, is not clear. However, the examination of s 10(3) below (at 11.62) will show that a journey from work to such training is regarded as part of employment simply on the basis that the employee is ‘required’ or ‘expected’ to attend. Lunch and other rest breaks at work 11.50 It has been recognised for some time that workers, being human, need food and rest of some sort during the working day. Therefore, as long as the breaks were authorised by the employer, and spent in an authorised way, it was not hard to show that the course of the employment was still persisting. In Rowland v Wright [1909] 1 KB 963, for example, a worker employed to look after the employer’s horses was eating his lunch in the stables — as he was permitted to — when he was bitten by the stable cat. He was held to be in the course of his employment and compensated. 11.51 Other questions that are harder to resolve have arisen in relation to sporting activities engaged in at work during the lunch hour. In 1931, the High Court held that an employee injured by a cricket ball during a lunchtime match could not recover compensation: Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22. However, some 30 years later, the court found

for the worker in a case involving very similar facts: Commonwealth v Oliver (1962) 107 CLR 353. The case illustrates that changing attitudes in society will be reflected in decisions about what is sufficiently closely connected to employment. Other activities of a reasonable nature might have been engaged in during the lunch break without taking the worker outside ‘the course of employment’. For example, in Commissioner for Railways v Collins [1961] NSWR 771, Mr Collins was sleeping during the lunch break. Unfortunately, he chose the railway line as a pillow, and did not hear the approach of a parcel van. Nevertheless, he was found to be ‘in the course of’ his employment. Indeed, the mere fact that the employee is engaging in foolish or even illegal conduct will not automatically mean that they are no longer ‘in the course of employment’. In WorkCover Authority of New South Wales v Walsh [2004] NSWCA 186 (Walsh), a truck driver was taking drugs at a rest stop with the aim of helping him stay awake to drive. The court held that he could still be regarded as being ‘in the course of’ his employment: see, for example, Tobias JA at [56]. (For further comment on this case, see 11.85 below where the exclusionary provisions of s 14 are discussed.) Assaults 11.52 It is clear that an assault by a stranger or a fellow employee could be regarded as being in ‘the course of employment’. In the situation where the assault takes place while the worker is actually doing what they are paid to do, it will usually be regarded as ‘in the course of’ employment: see Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30. Similarly, it will also be regarded as ‘in the course of’ employment where the topic of the argument that leads to the assault essentially concerns workplace business: [page 530]

see Nunan v Cockatoo Docks and Engineering Co Ltd (1941) SR (NSW) 119. (See also JR & DI Dunn Transport Pty Ltd v Wilkinson [2015] NSWWCCPD 38 where for both of these reasons an injury sustained in a fight with a fellow employee over work-related matters was held to be compensable.) In Blacktown City Council v Smith (1996) 14 NSWCCR 132, an employee of the council, having arrived at work, heard a scream from a neighbouring office. When she went to help the receptionist next door who was being attacked, and was herself injured, she was held to have been acting ‘in the course of her employment’. The Court of Appeal was heavily influenced by the fact that she had already started work, and while there was no one present to give her permission to investigate, it was likely that an employer would have given her such permission. However, an assault based on matters outside the workplace altogether was sometimes held not to be ‘in the course of employment’. In Bill Williams Pty Ltd v Williams (1972) 126 CLR 146, the worker was shot by a stranger who claimed that the worker was having an affair with his wife; his workers’ compensation claim failed. 11.53 The whole area of workplace assaults is comprehensively reviewed by Neilson J in Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165. In that case the applicant and another employee traded insults about a matter unconnected with work, whereupon the applicant tipped over a wheelbarrow and started to assault the other worker. In the course of the fight the applicant was injured and claimed compensation. Neilson J said (at [97]): The authorities to which I have referred, and no other authorities have been referred to me by counsel, do not support any contention that a worker who instigates an altercation, either oral or physical for reasons unconnected with his employment and in the course of doing that, sustains injury, suffers injury arising out of or in the course of employment. As I have said, I am satisfied the applicant abandoned his employment by his conduct when he overturned the first wheelbarrow and remained out of his employment when he fell and fractured his right leg.

‘A frolic of his own’ 11.54 Despite the width with which the courts interpreted the phrase ‘in the course of employment’, there are still situations where, despite being on the premises of the employer during working hours, a worker might be held to not be so acting. It is not sufficient to argue that in doing what they were doing the worker was motivated by some interest of their own, so long as they are in fact engaged in doing what they were employed to do. An employee was therefore able to recover compensation when injured while charging the battery of his car at his workplace, where he also used the car as part of his work: see Duffy v Tancred Bros Pty Ltd [1951] WCR 80. In Mayhew v G & S Mayhew Pty Ltd (1995) 12 NSWCCR 398, the worker was installing a water heater on the roof of his home for the purposes of both (i) heating his own swimming pool; and (ii) testing it out, as his business was selling and installing these heaters. The connection with the business was sufficient. However, if the employee has completely moved on to acting for their own purposes, these actions are excluded from the provision of ‘in the course of [page 531] employment’. In Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, the worker extended his lunch break by two hours and was found not to be in the course of employment when injured. 11.55 Even a purely recreational trip, however, may be covered if occurring as part of an overall period of employment and encouraged by the employer: see Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473 (Hatzimanolis). There, Mr H was living away from home while working on a construction project but was injured in the course of a recreational trip on his day off. As his

employer had encouraged him to go on the trip, it was held to be within the course of employment.41 This case was followed in ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257. There it was clearly in the employer’s interest that the worker live ‘on site’, both to be available on call and also because the conditions of life on the property were designed to encourage workers to stay in the job. However, as that case shows, simply because such a situation is ‘in the course of’ employment does not necessarily mean that any accident occurring would be said to ‘arise out of’ the employment. Hatzimanolis was also applied in the Northern Territory decision of Clarke v Waylexson Pty Ltd [2009] NTSC 19, where a worker who was required to live ‘on site’ near the Ranger Uranium Mine, and who had been encouraged by his supervisor to ‘stay awake’ as long as possible in a changeover between day and night shift, was hurt in a car accident while on a fishing trip with colleagues. Southwood J found that he was acting ‘in the course of employment’ when injured ‘in an interval in an overall period of work while engaging in an undertaking that was encouraged by his employer’: at [1]. 11.56 Similarly, in Da Ros v Qantas Airways Ltd [2009] NSWWCCPD 58, it was held that an airline steward was acting ‘in the course of employment’ when, in a ‘lay-over’ in Los Angeles before returning to Sydney, he was injured while riding a bike in the course of sight-seeing. Evidence was accepted that the airline encouraged crewmembers to familiarise themselves with overseas destinations so they could answer questions from passengers, and also encouraged them to maintain a high level of fitness.42 Watson v Qantas Airways Ltd [2009] NSWCA 322 also dealt with the question of whether an employee injured when engaged in private activities during a period of work when required to live away from home was ‘in the course of employment’. Here the court held that the lower tribunal, in denying compensation to an airline pilot injured in a car accident in Los Angeles (where he was

required to be on a lay-over), had applied the wrong test. They said that the tribunal should have more directly applied the reasoning of the High Court in Hatzimanolis. While the court referred the case back to the tribunal for further consideration, it seems quite clear that they thought the pilot ought to have been held to have been ‘in the course of employment’ by applying the High Court’s test. [page 532] However, in Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365 the court held (at [177]–[180]) that Hatzimanolis did not apply to deem a worker to be ‘in the course of’ employment when she had left a work-related party for purposes of her own, even while driving a car provided by her employer. 11.57 The limits of the Hatzimanolis doctrine were tested in the controversial proceedings that led up the High Court’s decision in Comcare v PVYW [2013] HCA 41 (PVYW). The claimant was staying overnight in a motel as part of her work when she invited a friend to visit. They were engaged in vigorous sexual activity when a light fitting fell off the wall and injured her, and she claimed compensation under the federal scheme. By 4:2 the High Court held that she could not recover. While claiming it was not reformulating the Hatzimanolis criteria, the effect of the decision of the majority seems to be that not only must the employee be in a place they were authorised or encouraged to be in, but they must at the time of harm be engaged in an activity that was ‘authorised’ or encouraged: see, for example, [38]–[39]. The majority distinguished between liability based on the ‘place’ and liability based on an ‘activity’. If the injury occurs as a result of the defective condition of the place, then liability can be established (for example, they said that if the light fitting had

fallen off because it was defective, she could have recovered: at [45]). However, where the injury occurs as a result of an ‘activity’, then the employee must show that the activity itself was encouraged or authorised, and here the activity of sex had clearly not been. See (at [60]): … for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place. [emphasis added]

There was a dissent, in two separate judgments, by Bell and Gageler JJ, who argued that the earlier cases could not be read the way the majority wanted to (and the authority of Hatzimanolis had not been formally disputed). In my view, with respect to the majority, the dissent is much to be preferred. Gageler J well points out the complications that may arise in the future if individual activities of workers while staying somewhere for work need to be carefully scrutinised to see if they were ‘encouraged’ or ‘induced.As Bell J put it (at [106]): … The [Hatzimanolis] test [as previously understood] provides clear and workable guidance for the tribunal of fact in the determination of the notoriously difficult question of whether injury is within the course of employment. To superimpose on the test consideration of the connection between the circumstances of the injury and the employment relation would be to add complexity at the cost of certainty and consistency.

For an analysis of the decision, see the article by Windholz. He mentions as an example of a case applying the decision Lee v Transpacific Industries Pty Ltd (2013) 62 AAR 63, where a worker who was based in the outback was required as part of medical treatment relating to an earlier work-related injury to drive some distance to a doctor’s appointment. When he slipped over on some oil on the forecourt of a garage

[page 533] while making a toilet break on the trip, the court found that the injury was occasioned both by the ‘place’ (the condition of the garage forecourt) and the ‘activity’ (the toilet break). The toilet break was impliedly induced or encouraged as an expected event in a long car trip. The place was somewhere he was induced or encouraged to be in, as it was part of stopping to refresh on a long road trip. Hence the injury was compensable. A difficult case where PVYW was applied is Oaks Hotels and Resorts (Qld) Pty Ltd v Blackwood [2014] ICQ 23. A female worker who had been provided with accommodation was sexually assaulted by a person who shared the accommodation. The court ruled that the injury could be said to relate to the ‘place’ as she had been given the room only because of her work, and it involved sharing the premises with the assailant as part of the conditions of staying there. PVYW was also considered in Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222 (Pioneer No 2, further proceedings in litigation the first stage of which was noted above at 11.44). In these proceedings the question was whether an injury, which arose while the worker was leaving a party which was being held after hours at the work premises, arose ‘in the course of’ employment. The majority of the court (Basten JA, with whom McColl JA agreed) held that it did not. A mere inquiry by a fellow worker as to whether she was intending to come to the party was not sufficient ‘encouragement or inducement’ to extend the course of employment to the event: see [29]. Basten JA also noted that both PVYW and Hatzimanolis dealt with cases where there was an ‘overall period of work’ within which an activity was encouraged; here the situation was quite different where the worker is engaged for regular hours and goes home after work: at [35]. Even if there were some ‘encouragement or inducement’ to join the activity,

the principles in those ‘work away from home’ cases would not necessarily be applicable to this sort of case. Support for the view that PVYW is not applicable in ‘ordinary’ workplace cases (as opposed to the ‘work away from home’ cases) can be found in O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 where Bromberg J held that the ‘encouraged or induced’ question is not relevant where an injury happens in the course of normal working hours. There a truck driver had been injured in an altercation which arose at a service station while he was in the act of carrying out his duties. In Westrupp v BIS Industries Ltd [2015] FCAFC 173 the Full Court of the Federal Court held that a worker who was living in a camp while undertaking work (a ‘fly-in, fly-out’ arrangement), who was assaulted by a stranger after having dinner at a tavern one evening, was ‘in the course of’ their employment under the Haztimanolis principle. The decision in PVYW did not exclude recovery, as the general activity of having a meal after work was broadly ‘endorsed by the employer’ in this ‘work away from home’ context: see [89]. Unlike PVYW, no action of the worker themselves had contributed to their injury: see [55]. Statutory extensions of ‘in the course of’ 11.58 As well as the general application of the phrase ‘in the course of’, the Act also provides for a number of specific situations where a worker will be deemed to be acting ‘in the course of’ employment. These provisions are contained in WCA 1987 ss 10– 12. [page 534] These sections have been specifically exempted from the s 9A ‘substantial connection’ test by s 9A(4), which provides:

9A(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.

The interaction of this provision with those sections is a little unclear. Sections 10, 11 or 12, however, all deem an injury arising in a certain situation to be an injury ‘arising out of or in the course of employment’, and then proceed to specifically state that in such a situation ‘compensation is payable accordingly’. Presumably it will not be necessary to further prove that the employment was a ‘substantial contributing factor’ to the injury. (See 11.86 below for a discussion of s 9A.) 11.59 That this is the correct approach was confirmed by the decision of Armitage J in McGraw v Commonwealth Bank of Australia Ltd [2002] NSWCC 56. The worker slipped while walking to work and aggravated a pre-existing condition in her leg. The court was satisfied that the journey ‘contributed’ to the injury (for the purposes of s 10(1D), noted below at 11.64) in the sense that a step taken in the course of the journey was what led to the aggravation. Armitage J commented that, if he had been obliged to find that there was a ‘substantial’ contribution of the journey, he could not have done so. However, his Honour took the view that the structure of the amendments was designed to preserve a separate scheme for journey claims, with a more generous entitlement regime. His Honour commented (at [45]–[46]): It is notable that when the legislature inserted s 9A of the Act … it did not, as it did in s 9A(1), amend s 10(1D) to add the word ‘substantially’ before ‘contribute’ where that word appears in subs (1D), and that in s 9A(4) it specifically provided that s 9A does not apply in respect of an injury to which s 10 (inter alia) applies. The obvious intention was to preserve the separate regime of entitlement for compensation which exists in s 10. In my view, the applicant in this case may well have failed had ‘substantially’ been inserted before ‘contribute’ in s 10(1D) to bring it into line with s 9A(1) which requires employment to be ‘a substantial contributing factor’ to an injury. This is because the contribution of the worker’s activity in this case immediately before she experienced pain in her knee by way of an aggravation of pre-existing degenerative changes was indeed relatively minor. After all, at the highest all she did was walk up a steep embankment, and then having done that, walk on the level between a footpath and a grass verge. It is true that I have accepted that this activity was an

aggravation of pre-existing degenerative changes, but it was a relatively minor one. It would not qualify as a ‘substantial’ one, were s 9A to apply, in all probability, and had ‘substantially’ in s 10(1D) appeared before ‘contribute’, the subsection, as I have said, would probably have applied to exclude recovery. The fact that the word ‘substantially’ does not so appear seems to me decisive in this case.

11.60 See also in this respect Musumeci v GEM Engines Pty Ltd [2002] NSWCC 8. The court in that case examined in some detail the question whether the worker, who had driven into the yard of the factory and parked his car, was or was not still on a ‘journey’ when he was stabbed. On the basis of some brief comments in previous cases, and by [page 535] analogy with the rule that applies at the worker’s home, it was held that just as the journey to work starts at the property boundary of the employee’s residence, it concludes at the property boundary to the workplace. As a result the worker was no longer on a journey, and hence the stricter provisions of s 9A applied (see 11.86 below) and he could not receive compensation. This seems a bizarre result, as he may well have been able to recover if the stabbing had occurred on the street outside the workplace. However, the strange result stems from the decision not to subject the s 10 provisions to s 9A. 11.61

WCA 1987 s 10, dealing with journey claims, provides:

10(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

The effect of the section, then, is to automatically extend the coverage of the Act to certain journeys, subject to the specific exempting provisions in the section. Note that the section extends to ‘personal injuries’; as noted above (see 11.26), since the

decision in Zickar, this phrase in the Act does not extend to ‘pure’ disease cases, but may cover occurrences such as the rupture of an aneurism (although now see s 9B, which would exclude such an event from being compensable). The reason that the section is necessary is that the courts have often held that the journey to and from work is not covered simply by the phrase ‘in the course of employment’. As a result this special provision is needed. 11.62 Which journeys are covered? Section 10(3) spells these out. Without going into detail, they include: s 10(3)(a) daily or periodic journeys between home and work; s 10(3)(b) periodic journeys between work or home and an educational institution the worker is required or expected to attend; s 10(3)(c), (d) journeys between home or work and places where medical consultation or treatment are taking place in relation to a compensable injury; s 10(3)(e) journey between a temporary place of residence required for the employment and the worker’s usual home; s 10(3)(f) journey to a pick-up place; s 10(3)(g) journey to work to pick up wages. 11.63 Note, however, that since 27 June 201243 there is a further limitation on the operation of s 10: (3A)

A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose. [emphasis added]

[page 536] This seems to be intended to be a further serious restriction on the right to recover compensation — a ‘real and substantial’ connection needs to be shown between the employment and the actual incident (on the road, usually).

Some other jurisdictions have had similar restrictive limits placed on journey claims in recent years, and decisions from those jurisdictions may provide some guidance for courts in New South Wales: for one example, see the discussion of the issues by the Full Court of the Supreme Court of South Australia in Wheeler v South Australia [2012] SASCFC 111. For New South Wales consideration of the meaning of the phrase ‘real and substantial connection’ and the way that s 10(3A) operates, see Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 where the worker was simply injured while driving home from her cleaning job at a local school, and it was held that it could not be said that merely driving home from work was sufficiently ‘causally’ related to work to satisfy the ‘arising from’ criterion. Section 10(3A) was not satisfied simply by a standard journey to or from work. President Judge Keating said (at [112]): The Arbitrator’s essential conclusions, with which I agree, may be summarised as follows: (a) that a substantial connection is one “of substance” (Badawi at [82]–[83], [107]); (b) that “employment” in s 10(3A) is the same as in s 9A, that is, it is the activities of, or incidental to the employment, as opposed to the (mere) fact of being employed (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [11]); (c) the mere fact that a worker must travel to and from work is insufficient to establish a real and substantial connection between the employment and the accident — there must be some real relationship (connection) between the activities of the employment and the accident out of which the personal injury arose, and (d) if merely travelling to and from work was sufficient to establish the relevant connection, s 10(3A) would be otiose.

However, later in Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 DP Roche accepted a ruling of an arbitrator that where a worker was involved in a collision at dusk, and the reason she was riding her motorbike at that time was because she had to work late, there was a ‘real and substantial connection’. This can be contrasted, however, with the decision of DP

O’Grady in Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 that, where the worker was walking back to her car after dark and tripped over some roots of a fig tree, the connection with the employment was ‘tenuous’: see [56]. In Field v Department of Education and Communities [2014] NSWWCCPD 16 a casual teacher who had been called at late notice to work at a school, tripped and injured himself due to hurrying to reach the school on time. He gave evidence that he had worked there before and they were very ‘strict’ on starting time. DP Roche overturned an arbitrator’s refusal to find that the journey fell within s 10, ruling that where no other evidence had been presented, the worker’s view about why he needed to hurry was a sufficient ‘connection’ with the employment for the injury to satisfy the test in s 10(3A). [page 537] In Michael Alexander and Sandra Alexander as legal personal representatives of the Estate of Hugh Alexander v Secretary, Department of Education and Communities [2015] NSWWCCPD 41 the worker, who had just commenced employment as a teacher, was given a day’s leave to drive to attend his university graduation ceremony, and was sadly killed on the way. The Commission found that the journey did not fall within s 10. Insofar as it was a journey that included his temporary place of abode (he was going to be staying with parents overnight), it could not satisfy the requirement of s 10(3A) as having a ‘real and substantial’ connection with his employment. He had not been instructed to attend, merely permitted, and of course it was not essential that he attend in order to receive his degree to teach. Interestingly, the Commission noted that the s 10(3A) requirement did not apply to a journey mentioned in s 10(1)(b), a ‘periodic’ journey to an educational institution; but the alternative claim on that ground also failed as this was a ‘one-off’ trip (he had completed his degree prior to

commencing work, so there was no sense in which he had regularly been travelling to the university previously while working). In Namoi Cotton Co-Operative Ltd v Easterman (as administrator of the estate of Zara Lee Easterman) [2015] NSWWCCPD 29, another road death case, the worker’s car had collided with a truck while she was driving to her parent’s house after concluding a week of five 12-hour night shifts. The Commission upheld an arbitrator’s decision that fatigue caused by the lengthy period of night work was the likely cause of the accident, and this was a ‘real and substantial’ connection with the work. While many of the cases in future will no doubt hinge on s 10(3A), because it is the most restrictive part of the section, the other provisions should also still be kept in mind. Section 10(5) specifically provides that where a journey takes place between one employer’s premises and another employer’s premises, then the first employer’s premises will be deemed to be the worker’s ‘place of abode’. The second employer will then be the one liable to pay compensation. 11.64 There are a number of other specific exceptions to the entitlement under s 10 (apart from s 10(3A)). These apply: if the personal injury is attributable to the ‘serious and wilful misconduct’ of the worker: s 10(1A);44 s 10(1B) specifically says that if the worker was under the influence of alcohol or a drug then the injury is taken to be attributable to the serious and wilful misconduct of the worker, unless it can be shown that this did not contribute to the accident; if the injury resulted from a medical or other condition which itself was not contributed to by the journey: s 10(1D), inserted after the decision in O’Neill v Lumbey (1987) 11 NSWLR 640;45 and [page 538]

if the injury was received during a ‘substantial deviation’ from the journey which was made for a reason unconnected with employment and which contributed to the risk of the injury: s 10(2). The previous ‘at fault’ exception was the broadest general exemption from coverage. Even so, the courts held that the onus was on the employer to show that the subsection was applicable. The present s 10(1A), requiring proof of ‘serious and wilful misconduct’, will be even harder to prove. 11.65 Section 10(1C) previously provided that if the risk of injury on the journey was materially increased by the employment itself — for example, if a truck driver was obliged to drive too fast and too long without sleep — then the worker’s fault would not disentitle them. This was repealed as part of the amendments previously noted,46 presumably because there could be no doubt that if the risk was increased by a factor related to the job, then this would not amount to ‘serious and wilful misconduct’. An example of the application of the former s 10(1C) and the ‘fault’ disqualification is found in Boral SGB Pty Ltd v White (SC(NSW) Court of Appeal, Clarke JA, Cole JA, Hunter AJA, 11 March 1996, unreported) where the worker, in the course of travelling home from collecting his wages, was hit by a car while crossing a busy road. It was conceded that he was to some extent ‘at fault’, but the court upheld the finding of the trial judge that the fact it was necessary for him to travel in order to collect his wages had ‘materially increased’ the risk of injury; therefore, his fault did not disqualify him. Under the current provisions, of course, it would be unlikely that a simple lapse of attention while crossing the road could be regarded as ‘serious and wilful misconduct’.47 11.66 Alcatel Australia Ltd v Griffiths (1998) 1 Aust Workers Comp Rev 233 illustrates some of the difficult issues involved in journey cases. The worker was injured while travelling home

drunk after a work-sponsored Melbourne Cup party. The worker had attended a restaurant until 5 pm, by which time the employer had left. He stayed drinking until 8 pm, and then in the course of finding a taxi had a dispute with a fellow worker, was knocked to the ground senseless and suffered brain damage. The majority of the Court of Appeal said that there was a significant issue as to whether there had been a ‘deviation’ from the trip by virtue of the worker remaining in the restaurant after 5 pm. The court returned the case to the Compensation Court for further investigation. Subsequently the judge in the Compensation Court found that the deviation of itself had not substantially increased the risk of injury. However, she found that the [page 539] injury that occurred was due to the fault of the worker, applying s 10(1B), as the worker was at the time under the influence of alcohol, and could not show that his alcohol intake had not contributed to his injury. Another appeal to the New South Wales Court of Appeal in Griffiths v Alcatel Australia Ltd [1999] NSWCA 206 failed. 11.67 The High Court was required to consider the ‘journey’ provisions in Vetter v Lake Macquarie City Council [2001] HCA 12. The worker there detoured from the most direct route between her workplace and her home once a fortnight in order to visit her grandmother. After one such visit, on the way home she was involved in a severe car accident that left her with no memory of the details of the incident. The accident occurred when the previous and stricter form of s 10(1A) was in force,48 which excluded recovery where the worker was ‘at fault’. While the trial judge had ruled in favour of the worker, the New South Wales Court of Appeal had overturned that verdict, the majority taking

the view that as a matter of law the worker had been involved in two journeys, not one, and that the journey she was involved in at the time of the accident was not covered by s 10. The High Court found on this point in favour of the worker. Gleeson CJ, Gummow and Callinan JJ commented (at [29]): There is no obligation upon a worker to take the shortest and most direct route from the worker’s place of work to the worker’s abode so long as the journey can be said to be a journey between the worker’s place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker’s residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in risk during or after any deviation or interruption. That is what the Act requires. Any question whether that requirement has been satisfied is not to be answered by posing and answering a different question altogether and of the kind posed by the Court of Appeal, was the appellant engaged in one or more journeys.

11.68 The Court of Appeal, their Honours held, should not have overruled the trial judge’s decision, because as a matter of law the description of the worker’s activities as one journey was open, and did not amount to a legal error. The High Court also accepted, as the Court of Appeal had, that the circumstances of the deviation had not — in terms of s 10(2) — increased the risk of injury. However, the question remained whether under s 10(1A) the accident could be attributed to the ‘fault’ of the worker. On this point there was very little evidence, but the acknowledged facts were that it was raining and that the worker’s car had slammed into a parked truck. The trial judge had held that in these circumstances there was not enough evidence to do anything other than ‘speculate’. The High [page 540]

Court, however, agreed with the Court of Appeal that facts such as these did raise at least an inference of fault on the worker’s part, and remitted the matter back to the trial judge for further consideration of the question in accordance with their judgment. 11.69 In Mechanical Advantage Group Pty Ltd v George [2003] NSWCA 121, the question of a ‘deviation’ from a journey and its effect under s 10(2) was again raised. The injured worker and his brother were returning to Brisbane from a job in Young when they decided to visit their sister in Coogee, in the eastern suburbs of Sydney (a clear ‘deviation’). On their resumed trip north the next day the worker was injured at a motel at Bellingen on the North Coast; it was conceded that this Bellingen trip was not a ‘deviation’. However, the wording of s 10(2) would have disqualified the worker from compensation if the interruption to their trip in Sydney had ‘materially increased’ ‘the risk of injury’, even though nothing that happened in Sydney had any relation to the injury that actually occurred. The Court of Appeal held (2:1) that the trial judge was entitled to have found that the stay in Sydney did not materially increase any risk of injury. The process of driving through suburban Sydney was addressed by evidence and it was accepted that even though taking this route — as opposed to bypassing Sydney — may have increased the risk slightly the increase was not ‘material’. The difficult issue in the case was that neither party presented evidence as to what happened during the course of the overnight stay in Sydney. Young CJ in Eq, who dissented on appeal, thought that this was a fatal error in the worker’s case, as in his Honour’s view the worker bore the onus of proving that there was ‘no material increase’. The majority, however, (Handley JA with whom Spigelman CJ agreed) held that the trial judge was entitled to draw the inference that where the evidence was that the brothers simply shared a meal with their sister and then returned to her house, that no risky activities took place. Once this initial prima facie inference

had been drawn, the trial judge was then legitimately able to view the contradiction of this inference as the responsibility of the employer. However, as the employer did not cross-examine on the matter, there was no evidence available to disturb the prima facie inference: at [25]. The fact that the decision was so close highlights what Young CJ himself (at [66]) called the ‘Draconian’ provisions of the subsection, which would remove a right to recovery where a deviation gave rise to any risk, however unrelated to the actual injury. 11.70 Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365 illustrates a situation where s 10 did not apply. The worker was driving home in a company car after a Christmas party where she had been drinking, and was injured in a car accident. The main issues in the case concerned s 14 (discussed below at 11.75), but in regards to the s 10 point it was quite clear that this section could not apply, as s 10(1A) and (1B) exclude recovery in alcohol-based road accidents. 11.71 Section 11 of the WCA 1987 presents another statutory extension of the ‘course of employment’ provision, allowing claims in relation to an authorised recess. The section provides: [page 541]

11 If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service … (a) is temporarily absent from that place on that day during any ordinary recess or authorized absence; (b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury; and (c) receives a personal injury during that absence, the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

The section is necessary because, while there are many cases establishing that a lunch break or tea break on the premises is normally regarded as ‘in the course of employment’, there is more doubt in cases where the worker has actually left the premises. 11.72 Tooth & Co Ltd t/as Mona Vale Hotel v Injac (1994) 10 NSWCCR 437 involved a hotel restaurant cook who worked from 9 am to 3 pm and then from 5 pm to 9 pm on the same day. The Court of Appeal had to decide whether he was on an ‘ordinary recess’ from work when injured while crossing the road to the bank between 3 pm and 5 pm. Mahoney and Powell JJA, after examining earlier authority on the meaning of ‘recess’, concluded that on the facts of this particular case the cook worked two ‘shifts’. Factors leading to this decision included the fact that the word ‘shift’ was used to describe the arrangement and that the cook lived so close to work that he often went home during this time; as a result he was not on a ‘recess’ but had in fact left work at 3 pm. The result is probably in accord with a common-sense understanding of the words. For example, if while he was home cooking a snack at 4 pm he burned himself, it would be unusual that that could be regarded as being ‘in the course of employment’. On the other hand, if there had only been an hour’s break between shifts the court might have found differently. Priestley JA, the dissenting judge, pointed out that if the worker had lived in Bondi, an hour’s journey away, then most people would have said that the two hours was simply an extended lunch break, given that his working day extended from 9 am to 9 pm. 11.73 Priestley JA also considered the meaning of the exception in s 11(b), referring to a situation where the worker has ‘voluntarily subjected himself to any abnormal risk of injury’. The majority did not need to consider this paragraph, of course, since in their view the cook was not on an ‘ordinary recess’. Priestley JA was dealing with a claim that, because the cook was negligent in the way he was crossing the road, this paragraph applied. His

Honour said that even if there was some contributory negligence, it was clearly not at a high enough level to bring the worker within the exception. He said (at [14]): … the words ‘voluntarily subject himself’ taken together convey the idea of a degree of deliberation in the worker getting into the position of risk which in my opinion is altogether absent in the present case.

[page 542] Presumably the paragraph would apply if, for example, the worker decided to go bungy-jumping off the Harbour Bridge in his lunch hour. 11.74 In Hawkins v M W & K F Hawkins Hotel Pty Ltd [2002] NSWCC 37, Mr Hawkins was the managing director of a company which owned a hotel, and was also employed in the bar of the hotel. One day, after having worked at the bar since early morning, he was informed of a problem with a house he was having built. He left the bar to go and attend to the problem, intending to return after half an hour. In the course of inspecting some paintwork he stood on a plank, which broke, and he sustained injuries. The court held that he was entitled to compensation from the company (that is, through the company’s insurer) on the basis that his absence was ‘authorised’. As there was no one else who supervised his work, he was entitled to ‘authorise’ his own absence. The court also held that the action of inspecting the paintwork was not one that led to an ‘abnormal’ risk of injury. The fact that s 11 — as is the case with s 10 — is not governed by the provisions of s 9A led to the argument being mounted in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 that the worker, a helicopter pilot on 24-hour standby, was on a ‘recess’ when he sustained a back injury while getting up from the lounge in his quarters after watching television. The Court of Appeal agreed that

he was on a recess, in the sense of an approved period of rest during the overall working day —the ‘working day’ being accepted as lasting 24 hours: at [54]. However, s 11 was not applicable for geographical reasons: he was not ‘absent’ from his place of work, as he had been provided with a computer for work-based activities in his quarters, and conducted work (such as the preparation of reports) in those quarters: at [58]. 11.75 In Parsons Brinckerhoff Australia Pty Ltd v Vanceva [2011] NSWWCCPD 72, the worker, on temporary placement with a firm whose offices were on the fourth floor of a building, went out of that building and into an adjacent building where there was a café. This was an ‘authorised’ trip as employees often visited the café. While there she had a seizure, and her head was seriously injured when it hit the floor. DP Roche upheld her claim for compensation on appeal from a decision of an arbitrator. The Deputy President considered the question of how to determine when an employee was absent from their ‘place of employment’, and held that the specific rules under s 10 relating to journey claims (that is, that the journey commences at the boundary of the property) could not automatically be applied to s 11. He commented (at [46]): The café was not a place where Ms Vanceva performed any part of her work and was not a place where her employer (or Glenfield) conducted any of its business or over which it (or Glenfield) had any control or right of control. The evidence is therefore clear that, at the time of her seizure, Ms Vanceva was temporarily absent from her place of employment. This conclusion is not unreasonable or unnatural, but follows from the ordinary meaning of the words used in beneficial legislation and a purposive construction of those words.

Since s 11 is not subject to s 9A, it was not necessary to consider whether or not there was a ‘substantial contribution’ made by the employment. Following Zickar (discussed above at 11.23 ff), the injury concerned was clearly a ‘physiological [page 543]

change’ and it was irrelevant that it may have been triggered by an underlying condition. It should be noted that the 2012 New South Wales Parliamentary Report (referred to above at 11.6) recommended that ‘recess’ claims under s 11 should be restricted to those where the employment is ‘the’ significant factor in causing the injury.49 This recommendation, however, was not adopted. The connection required for ‘recess’ claims, then, is currently more generous that that required for ‘journey’ claims. 11.76 WCA 1987 s 11A, discussed above at 11.36, excludes claims for psychological injury as a result of management employment decisions. This section is not relevant to the general issue of ‘course of employment’ and seems curiously situated in the Act; a more appropriate place would seem to have been near s 4, which defines ‘injury’. 11.77 Section 12, the final section in this group, extends the definition of ‘course of employment’ to cover trade union officers on trade union business with the permission of their employers.50 Overriding exception for serious and wilful misconduct 11.78 Section 14 provides an overriding exception to the other principles governing ‘the course of employment’, where the conduct of the worker is blameworthy. However, the three subsections of s 14 are each different and it is necessary to consider them separately. The decision of the Court of Appeal in Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365 (Scharrer) considers the legislative history of the provision in some detail, and illustrates a number of its complexities. 11.79 Section 14(1) appears to be a clarification rather than an exception. It clarifies that as long as a worker is doing something ‘for the purposes of and in connection with the employer’s trade or business’, then they may still be regarded as in the course of

employment. This will be so even if the worker is disobeying a direct order of the employer, or is breaching some Act or regulation. In this area the test is very similar, if not identical, to the test in the area of negligence when the question of the employer’s vicarious liability for the employee’s actions arises.51 In Scharrer, the employee had chosen to drive home from a Christmas party while intoxicated, contrary to an explicit direction from her employer. There was also an unexplained portion of time between when she left the party and when she reached the place where the accident took place, which suggested that she may not have been driving directly home. In the circumstances the majority of the Court of Appeal [page 544] (Basten and Handley JJA) ruled that the employee had not been able to show that she was doing something closely connected to her employer’s business. Hence she was not entitled to rely on s 14(1) to receive compensation: at [183].52 11.80

Section 14(2) provides:

14(2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.

The policy of the provision is to disentitle a worker whose injury is a result of blatant misconduct of some kind; however, note that even in such a case compensation for the most serious injuries will be payable. Perhaps parliament considered that in the case of death or serious disablement the worker’s family would suffer unnecessarily if compensation were excluded. 11.81

Cases in which this provision has been applied often

relate to drunkenness and driving.53 In the Tasmanian case of Hill v Brambles Holdings Ltd (1987) AWCCD ¶73-833, the worker had been attending a barbecue, which had been arranged by the employer, at the employer’s premises. He was thus probably to be regarded as ‘in the course of his employment’. However, during the course of the afternoon the worker consumed a tremendous quantity of alcohol and when he was about to drive home the employer advised him not to drive. He persisted and was injured in an accident on the way home. The Supreme Court of Tasmania held that this amounted to ‘serious and wilful misconduct’ under the equivalent Tasmanian provision. However, not every case involving drinking and driving will fall within the exception. For example, in Smiggins (Koscuisko) Ltd v Hume (SC(NSW) CA, 19 May 1983, unreported) there was clear evidence that the worker had been drinking before driving but the trial judge said that it had not been established to his satisfaction that the injury was ‘solely attributable’ to the consumption of alcohol. This is, then, a very high standard of proof. A similar result can be seen in Coles Myer Logistics Pty Ltd v Lee [2007] NSWWCCPD 141, where, even though it was conceded that after his accident the employee in question had a blood alcohol reading above the legal limit, it had not been proved by the employer that this intoxication was ‘wilful’, nor that the bike accident that occurred was ‘solely attributable’ to the intoxication. In Cubic Interiors Pty Ltd v Basic [2006] NSWWCCPD 293, the court had to wrestle with the questions of whether or not the worker was ‘seriously and permanently disabled’, whether or not he was intoxicated, and, if not, whether his action of drinking [page 545] five stubbies of beer during his shift on a construction site was in any case ‘serious and wilful misconduct’. After considering these

matters the court then had to decide whether or not this was the ‘sole’ cause of his injury. 11.82 The exception for ‘serious and permanent disablement’ was considered in Higgins v Galibal Pty Ltd (t/as Hotel Nikko Darling Harbour) (1998) 45 NSWLR 45 (Higgins). In that case, at the end of his shift on the fifth floor of a hotel, the employee decided to travel to the ground floor to clock off by riding down the laundry chute. In the course of doing so he was seriously and permanently disabled. The trial judge found, and the Court of Appeal agreed, that the employee’s behaviour was ‘serious and wilful misconduct’, clearly in breach of his employer’s instructions and a stupid risk. Such behaviour did not amount to an activity ‘in the course of employment’. However, by a 2:1 majority (Priestley and Stein JJA; Powell JA dissenting) the Court of Appeal held that s 14(2) had the result that where death or serious and permanent disablement has occurred then if, apart from the misconduct, the behaviour would have been in the course of employment, compensation was payable. As Priestley JA put it (at 59): There seems to be no doubt that in the absence of s 14(2), the case law authority might well have required the conclusion that the appellant’s conduct in choosing the laundry chute route to the mezzanine floor took him outside the course of his employment. However, the existence of s 14(2) seems to me to require a different result. The injury to the worker was solely attributable to his serious and wilful misconduct. It was accepted that the injury resulted in serious and permanent disablement. Subsection 2 seems to me to be intended to make compensation payable to the worker in exactly those circumstances. The serious and wilful misconduct is a qualification for compensation in such circumstances, not a disqualification from it. [emphasis in original]

11.83 In Scharrer, the majority seems to have followed a slightly different approach. Both Basten and Handley JJA took the view that a worker could only fall within the provisions of s 14(2) if they otherwise satisfy the requirements of the Act to be in the ‘course of employment’. Here they accepted the decision of the lower court that the worker, since she could not explain the

additional delay in her journey, had not been able to show that she was still in the course of employment. Hence, s 14(2) did not assist in this situation. Basten JA commented (at 175): The critical finding was that the appellant had ‘failed to establish she was in the course of employment during the one hour period between leaving the party and the occurrence of injury’: at [101]. Because s 14(2) operated as a qualification in respect of serious and wilful misconduct which occurred only where the course of employment test was otherwise satisfied, that provision was held to be of no assistance to the appellant.

Handley JA agreed with this conclusion: at [200]–[201]. This decision is consistent with Higgins, noted above at 11.82, because in determining whether or not the employee was in the course of employment, the particular ‘serious and wilful misconduct’ which the subsection deals with is excluded. However, in Scharrer, the delay in the journey, not the intoxication and dangerous [page 546] driving, was the factor that took the worker outside the course of employment. Still, the two cases do sit together somewhat oddly, and it may be that more needs to be said about this provision in the future. 11.84 In Vinidex Pty Ltd v Campbell [2012] NSWWCCPD 6, the worker received brain damage after being involved in a foolish activity during a slow night shift at a factory: he, a fellow worker and their supervisor made a plastic ‘sled’ and were riding on it as it was towed at speed around the premises by a forklift. Applying the principles articulated by the majority in Scharrer, DP O’Grady ruled that he needed to be satisfied that the worker was otherwise qualified for compensation before applying s 14(2). He found that the worker was in the ‘course of employment’ — he was working where he was meant to be, and significantly his immediate

supervisor had sanctioned the activity. For similar reasons there was a s 9A ‘substantial contribution’. The Deputy President concluded that the worker had indeed suffered ‘serious and permanent disablement’, and hence, despite his serious and wilful misconduct, was not disentitled to compensation under s 14(2). 11.85

Section 14(3) quite clearly provides:

14(3) Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.

The provision is obviously designed to exclude suicide and other injuries that the worker deliberately and knowingly inflicts on themselves. Blundell and Mills point out54 that the wording is a little odd given that the word ‘injury’ occurs twice and is defined extensively in s 4. The best view is simply to regard ‘injury’ as a general word for ‘harm short of death’ where it first occurs. Holdlen Pty Ltd v Walsh (2000) 2 AWCR 400 (Holdlen) discusses the issues that arise when a worker commits suicide as a result of a workplace injury. In Smith v Commissioner of Police (No 2) [2000] NSWCC 35; (2000) 20 NSWCCR 27, a policeman’s widow was denied compensation under this section because he had committed suicide. In Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342, the court upheld the decision of the trial judge that the suicide of a worker following depression was not ‘intentional’ in the sense required under s 14(3). In WorkCover Authority of New South Wales v Walsh [2004] NSWCA 186, a truck driver had died while at a truck stop due to an overdose of methamphetamine. He believed that taking the drug helped to keep him awake and able to drive. The court held that s 14(3) was not applicable, as the word ‘intentional’ meant that there must be an intention to cause self-harm, not simply an intention to do the action that led to harm. The worker had not intended to cause himself harm: per Hodgson JA at [3], per Tobias JA at [85]. (In addition, even though his actions were ‘serious and wilful

[page 547] misconduct’, since they had led to his death then s 14(2) did not operate to preclude compensation being payable to his dependants.) In Fire & Rescue NSW v Hayman [2012] NSWWCCPD 66 the Commission accepted medical evidence that, even though the fireman concerned had taken his own life following serious injuries, as in Holdlen his choice was not a ‘free’ choice. DP Roche commented (at [69]): As decided in Holdlen, if s 14(3) applies, what is necessary is evidence that the deceased’s will was so ‘overborne or influenced by [his] circumstances’ (that is, ‘seriously compromised’) that, though the act (of suicide) is deliberate, ‘it should not be regarded as an intentional act’ (Holdlen at [38]). Dr Klug’s unchallenged evidence comfortably satisfies that test.

In Bluescope Steel Ltd v Pitaroska [2014] NSWWCCPD 21 the deceased worker had fallen into a vat of molten metal, and the employer suggested that this was an act of suicide. However, the Commission upheld the decision of an arbitrator that insufficient evidence had been produced to demonstrate that the death was self-inflicted. Connection with employment after January 1997 11.86 The commencement on 12 January 1997 of the WorkCover Legislation Amendment Act 1996 (NSW) Sch 1.2 brought about a major change in workers’ compensation in New South Wales. That Act inserted a new s 9A into the WCA 1987, the operative part of which is s 9A(1), which (now) states: 9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury. Note: In the case of a disease injury, the worker’s employment must be the

main contributing factor. See section 4.

Section 9A(2) sets out matters that may be taken into account in determining the connection with employment, and s 9A(3) sets out the matters that may not be taken into account. Of major interest is s 9A(3)(a): (3) A workers’ employment is not to be regarded as a substantial contributing factor to a workers’ injury merely because of … the following: (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment.

[page 548] Given that this was precisely the wording previously adopted (see 11.40), parliament seemingly could not have made it clearer that it intended to significantly change the pre-existing law on connection with employment. Important exceptions to this change in approach, as noted at 11.58, are the provisions of ss 10, 11 and 12, dealing with journey claims, recess claims, and claims arising out of the performance of trade union duties. Note that since the 2012 amendments, s 9A no longer applies to ‘disease injuries’, since the connecting factor for such injuries, as noted above, is now even stricter (‘main contributing factor’ is a harder test to satisfy that ‘a substantial contributing factor’).55 11.87 There is no doubt that parliament intended to make it harder to receive workers’ compensation benefits. However, the courts have experienced some difficulty in deciding exactly how s 9A should be interpreted. The decision of the New South Wales Court of Appeal in Mercer v ANZ Banking Group Ltd (2000) 2 AWCR 544; [2000] NSWCA 138

(Mercer) has been particularly crucial, although it has recently been qualified in its operation: see the discussion below at 11.99. It is worth referring in some detail to Mercer and the judgment appealed from, to put in context the comments of the Court of Appeal. A bank employee who had twisted her leg in reaching for some tape while at work was held by the trial court not to be entitled to compensation. She had a pre-existing weakness in her leg. The act of reaching for the tape was something that could have happened at any time, and was not particularly related to her duties in the bank. A detailed analysis was given by Bishop J in the Compensation Court in Mercer v ANZ Banking Group Ltd [1998] NSWCC 55; (1998) 17 NSWCCR 264. His Honour commented on the meaning of the word ‘substantial’ in s 9A (at [29]): … I consider that the meaning that should be adopted of the word ‘substantial’ is that it means more than minimal, large or great. But it is a relative concept. I would respectfully agree with the remarks of Neilson J in Stewart v NSW Police Service (1998) 17 NSWCCR 202, in which his Honour cited with approval the remarks of Wright J in University of Tasmania v Cain (1994) Tas R 156 where he said: ‘In my opinion the word “substantial” as is used in the Act, s 25(1)(b) is used in a relative sense. There is a recognition that there may be other causes for the disease. Indeed, it may be possible to say that in any given circumstances that there a number of “substantial factors” causing a particular condition. The accent is on contribution. The Act does not require that employment must be “the” substantial cause of the disease.’ [emphasis added]

However, in Bishop J’s view the practical effect of this requirement was said to be fairly strict. His Honour said (at [32]): However, the precise activity she was carrying out, viz. picking something up from a table, was a type of activity that could have occurred elsewhere, for example at home,

[page 549] in a department store or while out at dinner with friends. It was not an activity with any employment characteristics about it. The constitutional state of the patella was a substantial contributing factor requiring as it did very little provocation for the

dislocation to occur. The mere fact that the applicant did what she did when she did it is not sufficient of itself to make the employment a substantial contributing factor to the injury. In the relativities of things it was more a coincidence than a contribution. [emphasis added]

11.88 If the trial decision in Mercer stood, the case would have established very clearly that the requirement of ‘substantial contribution’ was much stricter than the previous requirements. However, the Court of Appeal overruled Bishop J’s decision. Mason P delivered the judgment in the case, with Meagher and Beazley JJA concurring. In the end his Honour rejected the reasoning that suggested that the activity of the worker had to bear ‘employment characteristics’. Unfortunately, his Honour did not spell out in any detail precisely what characteristics an activity must have in order to constitute a ‘substantial connection’. However, the following propositions could be supported: An activity will not have the relevant connection under s 9A simply because it involves some work as opposed to no work. There must be a connection with ‘what the worker in fact does in the employment’. There may be more than one ‘substantial contributing factor’ in relation to a single injury. It is not necessary that the employment be the most important, so long as it can be described as ‘substantial’. An injury may be substantially connected to the employment even if there is some predisposition of the worker. It is not necessary to show that the employment exposed the worker to any ‘special danger’. Importantly, his Honour held that the requirement that employment be a ‘substantial contributing factor’ is not as stringent a requirement as the old requirement that the injury arise ‘out of’ the employment. In this area he followed the decision of Ashley J of the Supreme Court of Victoria in Popovski v Ericsson Australia Pty Ltd [1998] VSC 61, on a similar Victorian requirement.56 This last finding was significant because previously, when both

‘out of’ and ‘in the course of’ employment were required to establish the relevant connection, the courts gave a fairly expansive meaning to the ‘out of’ limb: see the discussion at 11.42. It was possible to argue that simply being present in the workplace and doing an activity that is a part of one’s duties would ordinarily amount to a ‘substantial connection’ with the employment. This interpretation was probably more generous than Parliament intended, but for some time it seemed to indicate the direction in which the courts were moving. 11.89 The High Court refused special leave to appeal the Mercer decision on 16 February 2001: see [2001] HCATrans 26. However, the transcript of the special leave [page 550] application makes fascinating reading. McHugh J commented on the apparent difficulty of discerning from Mason P’s judgment the exact nature of the appropriate test. In refusing special leave Gaudron J (on behalf of herself and McHugh J) said (at 554–62): We are not convinced the Court of Appeal correctly analysed the decision of Compensation Court Judge Bishop at first instance. This, notwithstanding, we do not consider that this is an appropriate case for the grant of special leave. It is not clear that the Court of Appeal has given any particular construction to the relevant legislative provisions. In a case where some precise construction were given to those provisions, it might be appropriate for this Court to consider the meaning placed upon them. Accordingly, in this case, special leave is refused.

These comments constituted something of a warning to the Court of Appeal that the next time s 9A was under consideration the court should think very carefully about it. At the same time there was a hint that if an appeal on the issue was made in the future, the High Court might be inclined to grant special leave. 11.90

To return to the discussion regarding the situation in New

South Wales, there is no doubt that the Court of Appeal decision in Mercer led to a more generous interpretation of s 9A. In Muscat v Woolworths Ltd [2000] NSWCC 16, Neilson J, following Mercer, found that where an employee had been injured by spilling on herself a cup of hot tea that she was drinking in the employer’s tearoom before work, there was a ‘substantial connection’ with the employment.57 Healey v Delta Electricity [2000] NSWCC 21 found a substantial connection where a worker was injured in overnight accommodation prior to starting work away from home the following morning. Dominguez v Sanchez Constructions Pty Ltd [2000] NSWCC 40; (2000) 20 NSWCCR 295 held that the connection was established where the worker suffered a stroke as a result of a heated argument about work issues. Shroder v Matheny Management Services Pty Ltd [2001] NSWCC 114 held that a connection was established where a housekeeper slipped on water on the floor while walking to her bedroom. Thatcher v Commissioner of Police [2002] NSWCC 26 ruled that a policeman’s psychological condition was partly caused by attendance at a scene where another officer had committed suicide: ‘appellant’s attendance at the suicide scene was very likely the precipitating event in, and certainly a major and therefore substantial contributing factor’ to the illness: at [93]. Edwards v Dumbain Pty Ltd [2002] NSWCC 18 found a connection established where a bar attendant had finished work, but was having a drink in the hotel prior to going home, and slipped on the steps of the hotel while taking a mobile phone call. [page 551] 11.91 There were still some limits, however. In Worrell v Longworth [2000] NSWCC 42; (2000) 20 NSWCCR 400, the worker

was injured while on a picnic on the weekend and no substantial connection was found, despite the fact that he was theoretically ‘on call’ over the weekend and the invitation to the picnic came from his employer. In Fadkhreddine v Neffati [2002] NSWCC 57, a taxi driver’s heart attack, which occurred while he was driving, was found to be related primarily to his general state of health and the connection with employment for the purposes of s 9A was not established. In Musumeci v GEM Engines Pty Ltd [2002] NSWCC 8 (Musumeci), the worker was stabbed by someone who had come into the workplace in pursuit of money he claimed to be owed by the worker. The worker was on his way to work; he had just parked in the work car park when he was stabbed. Nevertheless, the court held that since the incident arose out of a ‘private dispute’ in no way connected to the job, the employment was not a ‘substantial contributing factor’ to the injury, and hence that compensation would be denied. The odd nature of the current legislation is illustrated by the fact that the main point of Musumeci, however, was whether the worker was still on his ‘journey’ between home and work. If he had been, then, as noted at 11.58, s 9A would not have been applicable; s 10 would have been applied and he would have received compensation. However, the court held that the journey to work ceased once the worker entered the car park. 11.92 Some further guidance on the meaning of ‘substantial’ was found in the Court of Appeal decision of Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153. In that case the employee suffered from a severe psychological condition. He alleged that it stemmed from an accusation of sexual harassment made by a fellow employee. The trial judge found that the condition was effectively caused by pre-existing psychological problems, exacerbated by extensive use of marijuana, and was triggered by an incident following the allegation of harassment when the employee broke into a locked desk and stole confidential

documents. As a result, the trial judge found that there was no ‘substantial connection’ with the employment. On appeal it was argued, in accordance with Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 — a High Court decision on the word ‘substantial’ in the Trade Practices Act 1974 (Cth) — that something could be ‘substantial’ so long as it was not ‘insubstantial or nominal’. In other words, it was suggested that something could have a substantial connection with employment even if the contribution the employment made was ‘minor’. 11.93 This interpretation was rejected by all the judges in the Court of Appeal. However each judge offered a slightly different approach to the question of ‘substantiality’. Meagher JA said (at 15–16): This argument should be rejected. Logically, it would mean that all causative happenings would have to be treated as ‘substantial’ however insignificant they were, or (in other words) that the word ‘substantial’ has no meaning. Many judges have spent a great deal of time and difficulty analysing and pondering the meaning of the word ‘substantial’. But this word is a plain English word which is understood by anyone who is not a judge. Nor have the endless judicial lucubrations

[page 552] on the word contributed to anyone’s understanding of it. And nobody in their senses would regard a cause which could be correctly categorised as very ‘minor’ as ‘substantial’.

Giles JA, who did not take part in the earlier decision of Mercer, referred to it but respectfully noted that there was some difficulty in reconciling all the comments in the case: at [24]. He resolved this case on the basis that where there were clearly two other ‘main’ contributing factors, the employment could not be a ‘substantial’ factor, stating (at [29]): …Whether or not ‘substantial’ in s 9A(1) calls for something more, in my opinion

his Honour was correct in regarding the stresses, as a contributing factor which was minor in comparison with two other factors each of which is found to be substantial, as not substantial. On the findings of fact made by his Honour, his conclusion was correct.

Davies AJA primarily based his decision on the fact that an appellate court should not lightly overturn the trial judge’s decision on a question of fact. He did clearly indicate, however, that he preferred to regard ‘substantial’ as ‘real’ rather than ‘large’ or ‘weighty’. 11.94 Another aspect of s 9A was illuminated by the Court of Appeal decision in Supair Pty Ltd v Sweeney [2000] NSWCA 319. There a worker who had a pre-existing wrist weakness injured his wrist at work. The trial judge found that s 9A was satisfied, and that there was a ‘substantial connection’. The appeal was based primarily on the fact that the trial judge had not specifically made a finding in terms of s 9A(2)(d), as to the probability of the injury happening outside work. However, the Court of Appeal (Mason P, Meagher JA and Foster AJA) ruled that there was no error in the judge not specifically referring to that paragraph, as the employer had not led any evidence to raise it as an issue. The tenor of the court’s remarks are that if an employer wishes to raise any of the issues in s 9A(2), then it must do very specifically and lead evidence directed to those points. 11.95 That the proper interpretation of s 9A in light of current judicial authority was still a matter of great doubt is well illustrated by the Court of Appeal decision in ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257. In that case, the worker was living on a rural property in a hut provided by his employer, who needed him to be on call in case certain irrigation equipment failed during the night. After attending a Christmas party the worker was sleeping in his hut when a fire broke out and he was injured. There was no finding at the trial concerning the cause of the fire, but there was a suggestion that it might have occurred because the worker was smoking in bed.

The trial judge found, and the Court of Appeal agreed, that there was ample evidence to support a finding that the injury arose ‘out of or in the course of’ the employment. As noted at 11.55, there are a number of cases where workers in this situation have been found to be acting ‘in the course of’ employment when staying in employer-provided accommodation. However, the trial judge then ruled that the Court of Appeal decision in Mercer meant that he was obliged to find that the s 9A connection was satisfied. [page 553] 11.96 The Court of Appeal disagreed without, however, going into more detail. Mason P, who delivered the main judgment, commented (at 17): The parties agree that the last sentence [of the trial judge’s decision] misapplies the reasoning in Healey and Muscat. Nothing in those cases suggested that s 9A is satisfied merely because the injury arose out of or in the course of employment. Nor does Mercer. Section 9A(3)(a) explicitly states that a finding that the injury arose out of or in the course of employment is not, in itself, a basis for a finding of substantial contributing factor.

Unfortunately, his Honour did not specify further the tests the judge should have applied. There is a hint in a later paragraph that what the judge found amounted to a decision that the injury arose ‘in the course of’ employment, but that he had not addressed the question of ‘arising out of’. It may be that this was the error, and that the case could have been resolved by a simple finding that the injury arose ‘out of’ the employment in the sense of having some causal connection. The matter was remitted back to the trial judge for further findings. There is no doubt that further clarification of this area was needed in a carefully reasoned decision of the Court of Appeal. 11.97 Chubb Security Aust Pty Ltd v Trevarrow [2004] NSWCA 344 was a much more straightforward case. Ms Trevarrow was a part-

time security guard who was injured when visiting the premises of her employer on a rostered day off to discuss the behaviour of a fellow employee and to submit some medical certificates. Clearly, the activity she was engaged in was ‘work-related’, even if not occurring within working hours, and the Court of Appeal upheld the finding of the trial judge that the employment was a ‘substantial contributing factor’ to the injury. Santow JA commented (at [33]–[34]): The actual work activity in which Ms Trevarrow was engaged was attending the headquarters of her employer in order to discuss the terms and conditions of her employment, and in particular make a complaint about the behaviour of her coworker. To my mind that falls squarely within the test as set out in Mercer. The activity of making a complaint about a co-worker was, if not directly part of her usual employment activities, certainly part of it in an incidental or ancillary sense. Ms Trevarrow’s employment was an instigating factor (being a characteristic of the conditions in which her work was performed) in her attendance at the Ashfield premises, where she sustained the injury. It is misconceived to attempt to interpret employment as confined essentially to Ms Trevarrow walking her beat around the IBM premises at Baulkham Hills to which she was assigned to guard. The respondent’s written submissions correctly criticise this as an attempt to resurrect a narrow interpretation which was rejected by the High Court in respect of s 4 in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (at 632–3, 642). The respondent correctly states that there is nothing in Mercer or any other authority to suggest that the same approach is inapplicable to s 9A.

11.98 In Walsh (see 11.85), the court accepted that the activity of the truck driver in taking drugs which he thought would help to keep him awake while driving, meant that the driver’s employment (in the sense of what he was actually paid to do) was a substantial contributing factor to his death by overdose. [page 554] In a Workers Compensation Commission decision (see 11.46 above), Central Coast Area Health Service v Evans [2004] NSW WCC PD 10 (where a nurse had been required to work a strenuous 17hour shift and then fell after alighting from her car at home), the Presidential Member made a finding that the injury not only arose

‘out of’ the employment, but also that the employment was a ‘substantial contributing factor’. The finding was assisted by the identification of a number of features of the employment that contributed to the incident: the long hours worked, the fact that the applicant had been forced to work those hours without a meal break, and the stressful nature of the work. In addition, there were no ‘extraneous’ factors contributing to the fall: the place where the car was parked was not particularly dangerous. In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, the Court of Appeal ruled that the trial judge’s finding — that the worker’s employment as a helicopter pilot was a substantial cause of his back injury — was not able to be supported by the evidence that had been produced in the trial. The mere statement of a connection by two doctors, with no further information as to the reasons for the statements, could not be accepted. This was especially so where there was evidence of a pre-existing back condition, and s 9A(2)(e) specifically required the worker’s previous state of health to be taken into account. 11.99 In 2009, the Court of Appeal handed down an important judgment, which seems clearly designed to provide some definitive guidance on the issue. Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 (Badawi) was a decision of an unusually large five-member Bench of the Court of Appeal, which was convened because the authority of the decision in Mercer was in question. The key points of the main judgment given by Allsop P, Beazley and McColl JJA are: The word ‘substantial’ has to be read in light of the parliamentary second reading speech as meaning that it does not cover a situation where the injury has only a ‘remote or tenuous’ connection with the work. The causal connection required must be ‘real and of substance’: at [82]. In so far as the Mercer decision suggests that the causal requirement in s 9A is ‘less stringent’ than that imposed by s 4

(‘out of’ employment), then Mercer is wrong and should be overruled: at [83]. In the circumstances of this case, the employee had gone on a snowfields visit during which she was meant to be improving relations with a customer company. On one occasion she had arranged to go skiing with one of the customer’s managers; however, at the last minute he decided not to go, so she was on the slopes with her partner. She then received a call from her supervisor asking her to return early to discuss some work-related issues. On her journey back from the slopes to answer this request, she was injured. 11.100 Was the employment a ‘substantial contributing factor’ to the injury? The Court of Appeal (by 4:1) said that it was. They stressed that the overall trip had been made for work purposes; it was conceded that she was in ‘the course of employment’; and at the time of the incident she was doing something at the request of her supervisor: see [93]. [page 555] Basten JA offered a slightly different take on s 9A, but nevertheless he agreed with the overall result. In particular, his following comment (at [128]) is likely to be very important in future interpretations of s 9A: [I]f the conduct out of which the injury arose occurred in the course of employment and was the effective cause of the injury (there being no pre-existing condition or involvement of another person) the only conclusion reasonably open is that the employment was a substantial contributing factor to the injury.58

There was a dissent by Handley AJA, who felt that the lower court had made no ‘error of law’. However, the 4:1 majority judgment is clearly the ratio of the case, and is an indication that questions concerning s 9A may be resolved slightly more clearly in future.

11.101 In a subsequent decision, Da Ros v Qantas Airways Ltd [2010] NSWCA 89, the Court of Appeal (Basten JA giving the main judgment) applied the principles established in Badawi to overturn another decision involving a ‘recreational’ activity. The worker, a Qantas air steward on a layover in Los Angeles, was riding a bike after a day of sightseeing and was injured in a collision with another bike rider. It was shown that Qantas encouraged its flight staff to familiarise themselves with Qantas destinations in order to provide advice to passengers, and also have encouraged staff to remain fit — and provided the bike for this purpose. Hence, it was not difficult to find that the accident occurred ‘in the course of’ employment. On the issue of whether the employment was a ‘substantial cause’ of the incident, Basten JA, applying Badawi, held that it was. He said that there was a connection with the employment that was ‘real and of substance’: at [20], citing the Badawi majority at [82]. Applying his own test from Badawi, once it was established that the employee was ‘in the course of employment’, and that there were no other extraneous factors (such as a congential precondition of some sort), then the employment concerned was a ‘substantial’ factor: at [21]. In particular, it was an error of law for the lower tribunal to have tried to distinguish between elements of the activity to determine whether they were ‘ordered’ or simply ‘permitted’. Basten JA said (at [22] and [24]): The activity in which a claimant may be involved when he or she suffers injury is either within the course of employment or it is not; if it is, it is usually neither necessary nor appropriate to ask whether it constitutes an essential incident or core element of the employment. Similarly, it is usually neither necessary nor appropriate to inquire whether the particular activity was the subject of a specific direction by the employer or was simply a permissible activity, chosen by the employee. The ‘employment concerned’ as referred to in s 9A(1) is the same concept as the ‘employment’ referred to in s 4(a) when determining whether the injury arose ‘in the course of employment’. In Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 632–633, Kitto J rejected the proposition that the word ‘employment’ in

[page 556]

the definition of injury was confined to ‘the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work’. In rejecting that approach, and in dealing with the concept of a factor contributing to the aggravation of a disease, his Honour concluded: Where it is possible to identify as a contributing factor to the aggravation … of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation … In the present case, the collision with the courier was an incident or state of affairs to which the appellant was exposed in the course of his employment and to which he would not otherwise have been exposed. Because it was one of two contributing factors (the other being the presence of the courier at the same place at the same time) it is difficult to understand why it would not be a substantial contributing factor. No satisfactory alternative having been proffered on behalf of Qantas, and in accordance with the reasoning in Badawi, there was only one conclusion reasonably open on the findings of primary fact. [emphasis added]

The High Court refused to grant special leave to appeal from this decision: see Qantas Airways Ltd v Da Ros [2010] HCATrans 257, apparently signalling that it accepts that the Court of Appeal decision in Badawi was correct and was applied correctly. 11.102 In Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214, the injured worker, who was a ‘self-employed’ mortgage broker, was killed while cycling in a national park with a friend. His wife’s application for death benefits was refused, because there was no ‘substantial contribution’ to the injury from the employment. While he was ‘on call’ and regularly took calls from clients while out of the office, his job did not require him to engage in cycling. He was not engaged in any activity directly related to his work when the accident occurred. The principles of Badawi were applied in this case. In the course of the judgment the Court of Appeal did, however, express some concerns with the comments of Basten JA in that case: see 11.100. Giles JA noted (at [44]–[45]): In Badawi v Nexon Asia Pacific Pty Limited Basten JA, who dissented in the result, referred at [121] and [128]–[129] to the finding of injury in the course of

employment in some circumstances leaving a substantial contributing factor as the only conclusion reasonably open. Handley AJA, who also dissented in the result, relevantly agreed with the plurality and expressed some disagreement, at [153], with what Basten JA had said at [121]. Basten JA’s observation in Da Ros v Qantas Airways Limited [at [24], noted at 11.101] may have held good on the facts of that case. It does not support normally moving from injury in the course of employment to the employment concerned being a substantial contributing factor to the injury. Causation is a quite different concept from temporal occurrence.

In Kelly v Secretary, Dept of Family and Community Services [2014] NSWCA 102 the worker had suffered a psychological condition after a serious incident when confronted [page 557] by a co-worker, while both were on duty. Because the confrontation arose out of a dispute involving the relationship between the co-worker and the worker’s daughter, it was argued that there was not a ‘substantial contribution’ under s 9A based on the employment. Basten JA held that, where the argument arose because both workers were engaged in a common employment, in the circumstances it did not matter that the topic of the argument was unrelated to work; his Honour held (and other members of the court agreed) that there was a ‘substantial contribution’. In NSW Police Force v Hain [2015] NSWWCCPD 11 a police officer was injured while playing in a rugby league match organised to benefit a police charity and involvement in which was encouraged by his superior officers. The Commission found that his accident arose ‘out of’ his employment (the causal connections were clear), and in the circumstances of this case the facts that led to the causal connection also supported the view that the employment was a ‘substantial’ contributing factor to the injury.

Type of benefit

11.103 It should also be noted that in addition to the presence of an injury, the injury must have the effect of producing some sort of compensable result, such as death (ss 25–27), total or partial incapacity (ss 33, 38), medical treatment or rehabilitation expenses (s 60), or loss of function of a limb, or pain and suffering (ss 66, 67).

Incapacity for work: WCA 1987 Pt 3 Div 2 11.104 In each case considering these issues there is a threshold question that first needs to be answered: what amounts to incapacity for work? The basic propositions that have been accepted by the courts are that a worker is in some way incapacitated for work if: prevented from actually doing work in the labour market in which the employee works or may be reasonably expected to work (Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229); or prevented from seeking and obtaining work. This means that if an injury prevents someone from entering a field of employment that might have otherwise been open to them, they will be to that extent incapacitated. In Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222, for example, the worker had been a forklift driver when injured. The injury he received prevented him from doing heavy lifting and bending. The Court of Appeal held that, although his job as a forklift driver did not require him to perform lifting and bending, he was incapacitated for work in an area of the labour market where he might in future wish to work. Ball v William Hunt & Sons Ltd [1912] AC 496 also establishes that there may be incapacity if by reason of disfigurement rather than physical injury the employee has become to some extent unemployable. Following is a brief review of the different heads of

compensation. Note that as this is merely an overview it is not possible to exhaustively detail each area. [page 558] Total incapacity: s 33 11.105 Compensation for a worker regarded as totally incapacitated is provided in the form of a weekly payment. Section 36 sets out the rate during the first 13 weeks as related to the worker’s normal weekly wage rate.Where the incapacity extends beyond 13 weeks, s 37 and the subsequent sections specify lower rates. The compensation authority, now known as ‘Insurance and Care NSW’ (iCare) sets out the arrangements for the first period as follows: For the first 13 weeks where you have no current work capacity, your weekly payment is based on whichever is less: 95 per cent of your pre injury average weekly earnings minus the value of any deductible amount, or the maximum weekly compensation amount … minus the value of any deductible amount. The ‘maximum weekly compensation amount’ is set at $2,042.80 per week for the period 1 April 2016 to 30 September 2016. The amount is indexed in October and April. There are different rates for the periods from 14–130 weeks, and then from 131–260 weeks. Cessation of benefits after five years 11.106 There is a statutory five-year limit beyond which benefits will not be paid, unless the level of impairment is greater than 20%, and the worker has been assessed by their insurer as having no work capacity, which is likely to continue indefinitely.

11.107 The 2012 amending provisions, and regulations made under the new provisions, had retrospective effect in some cases. This was challenged in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18, but the High Court ruled that they were still valid, and within the regulation-making power given by parliament.59 Following a number of complaints about the transition arrangements following from the 2012 amendments, in 2014 some benefits were restored. The Benefits Guide says: September 2014 workers compensation changes The Workers Compensation Amendment (Existing Claims) Regulation 2014 introduced a number of changes to workers compensation benefits. These changes apply to workers who sustained a workplace injury and who had made a claim for compensation for that injury before 1 October 2012. These changes do not apply to workers who made a claim after that date.

The changes allow: workers to continue to receive certain medical and related expenses until retiring age [page 559] workers with whole person impairment of 21% to 30% to have access to medical and related expenses up until retiring age for the insurer to meet the cost of any secondary surgery that workers may receive weekly payments while a work capacity decision is being reviewed entitlement to weekly payments for up to one year after retiring age.

Non-economic loss: WCA 1987 Pt 3 Div 4 Entitlement to compensation for permanent impairment: s 66

11.108 Traditionally, an element of the compensation scheme was that regardless of the economic impact of the loss, a loss of some part of the body, or some permanent loss of function, should receive compensation. This section of the legislation used to be known by the gruesome title of the ‘Table of Maims’. Since 1 January 2002, this method of calculating compensation has been changed, by amendments introduced by the Workers Compensation Legislation Amendment Act 2001 (NSW). Further changes were made in 2012 and 2015. The 2012 amendments, applicable to injuries incurred on or after 19 June 2012, mean that no s 66 permanent impairment amount can be awarded unless the worker has an assessed degree of permanent impairment greater than 10%: s 66(1). The arrangements for injuries incurred after August 2015 are: the maximum compensation payable for permanent impairment was increased to a maximum of $577,050 for workers with a permanent impairment of 75% or more; the compensation amounts payable for each percentage of permanent impairment of more than 10% permanent impairment were increased; and from 1 July 2016 permanent impairment compensation payments will be indexed annually. Pain and suffering: former s 67 11.109 A statutory payment used to be made for ‘pain and suffering’, a more intangible item which has long been provided for in common law damages but was first introduced into the New South Wales legislation in 1987.60 In order to be entitled to a payment in relation to this item, the worker had to satisfy a threshold of permanent loss under s 66 of not less than 10% for a physical injury (s 66(1)), and 15% for a psychological injury: see s 65A(3). Once this was shown then the worker was entitled to a percentage of the maximum payment for pain and suffering, which was most recently $50,000.

For injuries incurred on or after 19 June 2012, however, s 67 has now been repealed61 and there is now no provision for a pain and suffering component at all. [page 560]

Death: WCA 1987 s 25 11.110 Where the worker has died their dependents are entitled to payment of a lump sum under s 25. The relevant lump sum (as from 5 August 2015) was $750,000, and $136.10 weekly for each dependent child (from 1 April 2016 to 30 September 2016). The payments for children continue until the child turns 16 or, if a full-time student, 21: s 25(2). ‘Dependents’ are defined in WIMWCA 1998 s 4(1) as including members of the worker’s family dependent on them for support. This definition includes parents, grandparents, grandchildren, stepchildren, siblings, those who are ‘in place of a parent’ such as guardians, a divorced spouse, a de facto spouse (which includes, as from 1 December 1998, the other partner in a same-sex couple). Once it is shown that there is one such dependent who is in fact dependent, then the lump sum is payable. The only exception is that, under s 29(7), if there is a sole eligible dependent who dies before making a claim, then there is no right in their estate to make a claim; the claim dies with them. An interesting question which has arisen is: where a worker was injured so as to be entitled to a lump sum payment under s 66, but died before making a claim, did the right to receive the lump sum accrue to their estate? In TNT Australia Pty Ltd v Horne (1995) 38 NSWLR 630, a majority of the Court of Appeal (Kirby P and Priestley JA; Rolfe JA dissenting) decided that it did. Where a worker is entitled to a lump sum payment as a result of an accident, but dies shortly after

the accident, then the worker’s estate can sue for such a lump sum in the worker’s place. This will be awarded on top of any lump sum death benefit that may have been paid to a dependant. The worker in that case had been made a quadriplegic, and died just five weeks after the accident. His widow recovered $120,000 death benefit, and his estate was awarded $92,450 by the Compensation Court for the worker’s loss of the use of arms and legs, under s 66 of WCA 1987 as it then stood.

Medical, hospital and rehabilitation expenses: WCA 1987 Pt 3 Div 3 s 60 11.111 The qualification under WCA 1987 s 60 is that medical, hospital and rehabilitation expenses must be ‘reasonably necessary’. Section 61 allows maximum amounts to be prescribed. Section 60A, however, provides that the hospital may not charge an employee any amount greater than the statutory maximum. Several items are included in the definition of ‘medical or related treatment’ in s 59 that might not otherwise be regarded as such. For example, domestic services by way of housework where someone is disabled are included (s 59(f)); as well as modification of the worker’s house or vehicle, such as, for example, installation of an in-ground swimming pool for therapeutic purposes: s 59(g).

Property damage: WCA 1987 Pt 3 Div 5 11.112 While WCA 1987 is primarily concerned with compensation for personal injury, ss 74–78 provide some payments in relation to property damage. The property [page 561] concerned must be artificial limbs, hearing aids or spectacles,

which in a sense can be regarded as almost a part of the worker’s body (s 74), or clothing (s 75). Statutory limits — which are not very generous — apply: $2000 for artificial limbs and $600 for clothing. In each case the damage must result from an ‘accident’ but it does not seem to be necessary that personal injury is also involved.

Commutation of compensation by lump sum: WCA 1987 Pt 3 Div 9 11.113 WCA 1987 s 51 previously allowed a worker to commute weekly payments into a lump sum only in certain circumstances, with approval of the Compensation Court. Commutation is now easier, although still regulated, under Pt 3 Div 9 of the Act, inserted in 2001. There may often be adverse social security implications from commutation, and so the relevant provisions of the Social Security Act 1991 (Cth) need to be kept in mind.

Automatic variation in amount of benefit 11.114 One feature of the WCA 1987 is that the amount of benefit that a worker, or the dependents of a deceased worker, is entitled to varies on a regular basis. This can be quite confusing, because the variation occurs by virtue of Pt 3 Div 6 without in any way altering the text of the Act. So, for example, s 25 provides that the maximum death benefit payable is $750,000, but recognises in s 25(4)(a) that this amount may be varied in the future by the operation of Div 6. This happens because s 79 defines certain ‘adjustable amounts’, which include amounts fixed under s 25 (death benefits), and weekly payments for incapacity under ss 35, 37 and 40. Section 80 then provides that a reference in the Act to any amount that is an

adjustable amount is calculated by multiplying the amount by an index figure for the relevant six-month period.

Insurance: WCA 1987 Pt 7 11.115 The Act, while notionally imposing liability for compensation payments on the employer, also sets up detailed provisions requiring employers to take out insurance.62 Section 155(1) is the primary provision, which imposes an obligation on every employer who is not a ‘self-insurer’ to obtain and maintain in force a policy of insurance for its liability under the Act and also for common law liability. The penalty for contravention is 200 penalty units ($22,000 now) or six months’ imprisonment. [page 562] In addition to this criminal penalty, the employer is liable to pay WorkCover up to a maximum of double the applicable premium for any periods during which it was not insured: s 156. The calculation of premiums is complicated. The current system is that premiums are calculated according to an ‘Insurance Premiums Order’ made by the Governor pursuant to WCA 1987 s 168. An Insurance Premium Order is published in the Gazette. The calculation on premiums takes into account the wages paid to employees, the type of industry in which the employer is involved, and an ‘experience factor’ which takes into account the number of workers’ compensation claims made by the particular employer in the last two years. Table A to the Order sets out the different categories of industry and the ‘basic tariff rates’ applicable to those industries. 11.116

What happens if an employer is uninsured? WCA 1987

Pt 4 Div 6 sets up the Uninsured Liability and Indemnity Scheme. The basic provision is s 140, which allows the worker to make a claim under the scheme if the worker’s employer is: uninsured, either wholly or to the extent necessary to meet the worker’s claim: s 140(1)(a); or missing and unable to be located: s 140(1)(b). Note that whereas previously the scheme only applied to the statutory compensation payments (as opposed to common law compensation), the 2001 amendments extended it to cover the situation where a common law claim for ‘work injury damages’ is made.63 Under s 140(1): ‘A claim under the Scheme may be made as provided by this section by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages.’ The WorkCover Authority is, of course, entitled to take action against such an employer if identifiable. Suppose the employer is a corporation? In Richardson v Pitt-Stanley [1995] ICR 303, the English Court of Appeal dismissed a claim for recovery of money from one of the directors of an uninsured company that was insolvent. The court did so on the basis that the duty imposed on the director to ensure that the company remained insured was not intended to give a right to civil action.64 11.117 In New South Wales there is now no need to test this case in relation to statutory compensation, because the legislation provides very clearly for a right of recovery against individual officers. Section 145A provides that where an amount paid out under s 140 is unable to be recovered from a corporation, it may be recovered from a person who is a ‘culpable director’ of the corporation. Under s 145A(4), a person is a culpable director if the corporation was uninsured under s 155. Section 145A(5) allows the director to defend themselves against the claim on the basis that either:

[page 563] they had no knowledge of the uninsured status of the company; they were not in a position to influence the company; or they used all ‘due diligence’ to prevent the company being uninsured. See Workers Compensation Nominal Insurer v Brasnovic [2013] NSWDC 131 for discussion of ‘due diligence’ and ‘knowledge’ in this context. Amendments have been made to the Act to allow iCare to recover ‘double premiums’ (that is, double the amount of the premium that should have been paid initially) against individual directors where a company has been uninsured,65 and to recover the balance of a premium where there has been ‘premium evasion’ by providing false information about the company.66 11.118 This emphasis on the personal liability of company directors is complemented by another provision of WCA 1987: s 4A. That section provides that where a director of an uninsured corporation is also a worker employed by the corporation, then any injury received by that director must not be compensated under the Act. Obviously, the section provides yet another incentive for directors to ensure that companies are properly insured for workers’ compensation liability. For an example of a case decided on the law as it was prior to the new s 4A, see Sinanian v EKS Carpentry Pty Ltd (1998) 1 Aust Workers Comp Rev 125. In that case the director of a ‘one-man’ company failed to obtain insurance, but was subsequently severely injured. After much debate the Court of Appeal held that, while normally a person would not be allowed to benefit from a criminal act, the disproportion between the severity of the consequences of disentitlement (that is, no compensation) and the size of the penalty for failure to insure ($20,000) meant that the legislation should not be read so as to exclude the worker from

compensation. Of course, under current s 4A he would clearly be excluded. A principal contractor is liable to pay the insurance premiums owed by a subcontractor, unless they have received a written statement from the subcontractor in the appropriate form, certifying that premiums have been paid and accompanied by a certificate of currency.67

Dispute resolution 11.119 Dispute resolution is an area that was changed greatly by the 2001 amendments. Essentially, where claims are made the current process involves the following:68 In most cases, weekly payments will commence within seven days of an injury being notified to an employer’s insurance company, without accepting liability. [page 564] These ‘provisional payments’ are designed to reduce the impact of injury and illness, but do not mean an admission of liability by either the insurance company or the employer. A ‘Claims Assistance Service’ has been designed to help people make claims. Where disputes arise they are dealt with by the Workers Compensation Commission, which has replaced the former Compensation Court. The Commission attempts a ‘conciliation’ process to resolve disputes, but if this does not succeed then it may conduct a hearing.

Workers’ compensation and common law rights

11.120 The intersection between the statutory workers’ compensation scheme and common law rights to receive compensation for injury is an important area dealt with in WCA 1987 Pt 5. When the Act was first introduced it was intended to abolish completely the right to recover common law damages for workplace injury. As discussed, this is the reason that s 67 introduced the idea of a lump sum payment for ‘pain and suffering,’ which was previously not a part of the workers’ compensation scheme: see 11.109. However, public pressure led to the reintroduction of common law rights from 1989. Initially there was some differential treatment of claims that had arisen between 1987 and 1989, but since 1991 those claims have been treated in the same way as others. The present limits on common law claims were discussed in Chapter 5.

Rehabilitation 11.121 One of the features of WCA 1987 was intended to be a renewed emphasis on rehabilitation; that is, getting injured workers back to work. Part 6 of the Act initially established the framework of the scheme, which is now contained in WIMWCA 1998 Ch 3. That Act now requires that insurers under the Act develop what are called ‘injury management programs’; that is, an overall policy on assisting workers to return to work: s 43. In relation to individual workers, for each worker who has a ‘significant injury’ — that is, requiring seven days or more off work — insurers are required to develop an ‘injury management plan’: s 45. WIMWCA 1998 also requires employers to develop or to otherwise adopt a ‘return to work’ program: s 52(1). The section allows regulations to be made prescribing the details: see Workers Compensation Regulation 2010 (NSW) (WCR) Pt 6.

Large employers and small employers are treated differently. Small employers may adopt a standard rehabilitation program approved by the WorkCover Authority. The WCR also provides in Pt 7 for the accreditation of bodies as approved ‘rehabilitation providers’. Certain employers are exempt from the requirement to establish such a program under WCR cl 26. They include employers who engage domestic workers other than for the purposes of their business (presumably such people as tradesmen or gardeners [page 565] doing short-term jobs), and employers whose only employees are members of their family. 11.122 The Act provides a number of incentives for employers to assist in the rehabilitation of injured workers. For example, WIMWCA 1998 s 54 provides that an employer who employs a previously injured worker may receive benefits in terms of a reduction in workers’ compensation insurance premiums. Section 58 makes it clear that anything done for the purposes of rehabilitation does not amount to an admission of liability for the purposes of either workers’ compensation liability or common law liability. 11.123 In addition, WIMWCA 1998 s 48 now makes it very clear that it is an injured worker’s duty to return to work as soon as possible: 48 Return to work obligations of worker (1) A worker who has current work capacity must, in co-operation with the employer or insurer, make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker’s place of employment or at another place of employment.

The Act also provides in s 48A that a worker may be penalised for failing to cooperate with a return-to-work or injury management program: 48A Failure to comply with return to work obligations of worker (1) If a worker does not comply with an obligation of the worker imposed under section 48, the insurer may in accordance with this section: (a) suspend the payment of compensation in the form of weekly payments to the worker, or (b) terminate the payment of compensation in the form of weekly payments to the worker, or (c) cease and determine the entitlement of the worker to compensation in the form of weekly payments in respect of the injury under this Act.

Brooks criticises provisions of this kind on the basis that they assume the worker needs to be coerced into rehabilitation.69 You may make your own judgment whether they are necessary or are an over-reaction to a small number of problem cases. However, they clearly point to the need for a worker in receipt of benefits to be available to become involved in return-to-work programs. [page 566]

Further Reading On workers’ compensation generally T A Blundell (ed), Workers Compensation New South Wales, LexisNexis Butterworths, Sydney, 2004 (formerly edited by C P Mills). A Clayton, R Johnstone and S Sceats, ‘The Legal Concept of Work-Related Injury and Disease in Australian OHS and Workers’ Compensation Systems’ (2002) 15 Australian Journal of Labour Law 105. N Foster, ‘Deemed to be Workers for Common Law Action’

(2008) 46(1) Law Society Journal 68–9. F Marks and B McLean, Workers Compensation Law and Practice in NSW, 3rd ed, CCH, North Ryde, 1992. M Peters, ‘The Impact of the Changes to the NSW Workers Compensation Law: A Betrayal of the Compensation Bargain?’ (2014) 22 Tort Law Review 75–90. K Robinson, ‘The Hits Just Keep on Comin’ for the Workers’ (2012) 113 Precedent 42–45. E Windholz, ‘Comcare v PVYW: Are Injuries Sustained While Having Sex on a Business Trip Compensable?’ (2014) 36 Sydney Law Review 345–367. Australian Workers Compensation Guide, looseleaf service; CCH, North Ryde (ongoing). On the dust diseases jurisdiction T Doubleday, ‘Development of Dust Disease Jurisdiction’ (1993) 4(3) Australian Product Liability Reporter 25–7, 35. On interaction with other compensation/income support systems A Anforth, ‘Common Law & Workers Compensation: Interactions’ (1996) 34/4 Law Society Journal 66–71. J Gumbert, ‘Judicial Review in the NSW Motor Accidents and Workers’ compensation schemes’ (March/April 2008) 85 Precedent 20–4. L Hastwell and J Richardson, ‘Compensation Awards: Social Security Implications’ (1995) 33/9 Law Society Journal 67–9. A Macaulay, ‘Psychological Injuries Claims’ (2009) 29(8) Proctor 25–26, 28. (on the Queensland scheme but may have implications for the New South Wales Act) A Monaghan, ‘Fault and Journey Claims’ (1996) 34(3) Law Society Journal 57. K Purse, ‘Common Law and Workers’ Compensation in Australia’ (2000) 13 Australian Journal of Labour Law 260–77.

On rehabilitation A Brooks, OHS Law in Australia, 4th ed, CCH, North Ryde, 1993. (Chapter 24 offers some commentary on the interaction between workers’ compensation legislation and occupational health and safety.) D Kenny, ‘The Relationship between Workers’ Compensation and Occupational Rehabilitation: An Historical Perspective’ (1994) 10(2) Journal Occupational Health & Safety — Australia & New Zealand 157–64.

1.

R Johnstone, E Bluff and A Clayton, Work Health and Safety Law and Policy, 3rd ed, Lawbook Co, Pyrmont, 2012, at [10.30]. (Note that Table 11.1 below gives a slightly more up-to-date list of legislation, but the Johnstone et al material is generally still relevant.)

2.

It is not possible here to cover specialised schemes that have occasionally been set up to deal with particular industries or diseases. In New South Wales, for example, ‘dust diseases’ are dealt with under separate legislation mentioned below: see 11.18. The Commonwealth has two additional schemes: for certain seafarers (under the Seafarers Rehabilitation and Compensation Act 1992 (Cth)), and for Australian Defence Force personnel with service on or after 1 July 2004 (under the Military Rehabilitation and Compensation Act 2004 (Cth)). For details on these and all the other Australian schemes see Comparison of Workers’ Compensation Arrangements in Australia and New Zealand 2015, SafeWork Australia, July 2015, available at . Commenced operation on 1 October 2015.

3. 4.

5. 6.

7. 8.

As we will see, changes to legislation have altered this principle to now require the employment to also be a ‘substantial contributing factor’ to the injury. The impact on the type of connection required is discussed below. The Uninsured Liability and Indemnity Scheme contained in WCA 1987 Pt 4 Div 6. Proposals to harmonise workers’ compensation laws are being considered by a working group convened by Safe Work Australia, but at the moment do not seem to include any proposal for uniform legislation: for more details see , search for ‘National Workers’ Compensation Action Plan’. A 2010–13 plan does not seem to have been updated on an ongoing basis. See also N Foster, ‘Deemed to Be Workers for Common Law Action’ (2008) 46(1) Law Society Journal 68–9. See for a link to the Report.

9.

See for details.

10.

The Clayton et al article noted in the Further Reading list at the end of this chapter provides a useful discussion of the definition of ‘worker’ in workers’ compensation statutes around Australia. Certain police officers; casual workers employed for less than five days, not employed for the purpose of the employer’s business; certain officers of voluntary organisations; and professional sport players.

11.

12.

13.

14. 15.

16.

17.

There is a very extensive discussion of the issues in the context of workers’ compensation in F Marks and B McLean (at [302]–[316]): see the Further Reading list at the end of this chapter. Although at the time of writing this extension was still ineffective as no regulations had been made specifying which training programs were approved. Note, however, that since 1 January 2004 many trainees are included in the primary definition of ‘worker’ in s 4: see Workers Compensation Legislation Amendment (Trainees) Act 2003 (NSW). These amendments were made by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (NSW) Sch 2. Note that due to the uncertainty surrounding the definition of ‘worker’ and hence the difficulty for some employers in properly calculating insurance premiums, a procedure was introduced whereby WorkCover (now the State Insurance Regulatory Authority) may give a ‘private ruling’ on the employment status of workers. These provisions are contained in WCA 1987 s 175C. The ruling is only able to be used for insurance premium calculation purposes, and is not binding on the worker or anyone else who has to determine for other purposes whether or not the worker is an employee. See in particular the comments of Handley JA: at [4]. Note, however, that it was not entirely necessary to resolve the issue for determination of the case, as the plaintiff had in any event been injured due to the negligence of an employee of the defendant, for which the defendant was vicariously liable. As noted above at 11.6, there is a slightly more detailed discussion of Ebb in N Foster, ‘Deemed to be Workers for Common Law Action’ (2008) 46(1) Law Society Journal 68–9.

18. 19.

Note that the definition of ‘dependant’ is now contained in WIMWCA 1998 s 4. For a helpful discussion of this area as it relates to churches, for example, see P MacFarlane and S Fisher, Churches, Clergy and the Law, Federation Press, Sydney, 1996, pp 48–51. See also Peckham v Moore [1975] 1 NSWLR 353.

20.

See the 2012 Amending Act Sch 7 item [1], which in accordance with cl 20 of Sch 6 Pt 19H of the WCA 1987 applies to injuries received on or after 19 June 2012. A very helpful article by T Doubleday giving an overview of this jurisdiction is noted in the Further Reading list at the end of this chapter.

21. 22.

23.

Personal injuries are also subject to the requirement in WCA 1987 s 9A that the employment concerned was a ‘substantial’ contributing factor: see the discussion below at 11.86. See also New South Wales v Rattenbury [2015] NSWWCCPD 46 (12 August 2015),

holding that the particular employment was the ‘main contributing factor’ to a worker’s psychological condition; but compare Sirikci v Hewlett Packard Australia Pty Ltd [2015] NSWWCCPD 45 (10 August 2015), where a short two-week period of employment was not found to have been the ‘main contributing factor’ to a serious psychological condition. 24. 25. 26.

27. 28. 29.

Quoted in Kirby J’s judgment in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 340. As noted in Chapter 1, until 1974 the High Court was bound to follow the authority of the Privy Council, as it was the final court of appeal for Australia. The legislature showed its agreement with Kirby P by amending the relevant part of the Act in 1989. Section 10 deals with injuries on journeys, and s 10(1D) of the Act now specifically provides: ‘Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.’ At the earlier stage, see MGH Plastic Industries Pty Ltd v Zickar (1994) 34 NSWLR 617. For further discussion of this point, see the comments below at 11.45 on ‘arising … in the course of employment’. See note 27 above.

30. 31.

Noted above at 11.23. See the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 which in Sch 2 Pt 1 amended the Safety, Rehabilitation and Compensation Act 1988 by adding new definitions of ‘injury’ and ‘disease’ in new ss 5A, 5B and 5C.

32.

Inserted by the 2012 Amending Act Sch 6, applying to injuries suffered on or after 19 June 2012: see cl 19 of Sch 6 Pt 19H of the WCA 1987. ‘Heart attack injury’ and ‘stroke injury’ are defined in s 9B(2).

33. 34. 35.

See esp at [19]–[25]. Section 11A was amended by Sch 1.2 items [2]–[7] of the WorkCover Legislation Amendment Act 1996.

36.

There was very brief consideration given to s 11A in Reeves v New South Wales [2010] NSWSC 611 where the court held that actions taken in relation to a police officer were not ‘reasonable’. See now s 4, definition of ‘injury’, paras (b)(i) and (ii), as amended.

37. 38. 39.

A good overview of the cases can be found in F Marks and B McLean, Ch 8, noted in the Further Reading list at the end of this chapter. It is perhaps worth noting that it is unusual to find a single judge of the Supreme Court ruling on this issue, as jurisdiction over the award of compensation has been exercised for some years by other bodies (for example, the New South Wales Compensation Court). This was an unusual case as it involved a dispute between the owner/builder’s insurance companies as to who should be responsible for the damages if liability was proved. The terms of the relevant policies meant that if the injury arose ‘out of or in the course of’ employment the workers’ compensation insurer was liable, but if not then the public liability insurer was liable.

40.

41.

42.

43. 44.

45.

46. 47. 48.

So that it is not at all surprising that, as in Davis, in the post-Mercer decision of Dominguez v Sanchez Constructions Pty Ltd [2000] NSWCC 40; (2000) 20 NSWCCR 295 the s 9A connection was established where a worker suffered a stroke as a result of a heated argument about work issues. But compare the decision noted below, Worrell v Longworth [2000] NSWCC 42; (2000) 20 NSWCCR 400 at 11.91, for a case where a Hatzimanolis type claim did not succeed. The later appeal in that matter, in Da Ros v Qantas Airways Ltd [2010] NSWCA 89, is discussed below at 11.101; it related to the interpretation of s 9A rather than the ‘course of employment’ point. See the 2012 Amending Act Sch 5, which applies to injuries occurring on or after 19 June 2012 — cl 18 of Sch 6 Pt 19H of the WCA 1987. Prior to 12 January 1997 this exception simply referred to the worker being ‘at fault’, with a similar reference to ‘fault’ in s 10(1B) and a definition of ‘fault’ in s 10(6). But WorkCover Legislation Amendment Act 1996 (NSW) Sch 1.3 amended the provisions to their present form: perhaps a concession to workers to ‘sweeten’ the changes introduced by s 9A. In Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342, the court held that the words ‘other condition’ meant something similar to a medical condition, and where the worker was shot on a journey to work because he was a member of a motorcycle gang this was not an ‘other condition’ within s 10(1D) such as to preclude him from recovering compensation. In Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle v Barrett [2010] NSWWCCPD 62 it was held that ‘being tired’ (which was the cause of a road accident) was also not a ‘condition’ analogous to a medical condition. See note 44 above. For another case dealing with former s 10(1A) and (1C), see Raines v Bayebb Pty Ltd [2002] NSWCA 197. See note 44 above.

49. 50.

Recommendation 21, p 114. See note 8 above. For a case on this provision, see Civil & Civic Pty Ltd v Hughes (1996) 39 NSWLR 505, where a trade union official was shot while travelling from his home on union business. See also Coles Myer Logistics Pty Ltd v Lee [2007] NSWWCCPD 141, where s 12 was held to apply to a union officer who had attended a union meeting in the morning, and was riding his motorbike to attend to union business at his place of employment in the afternoon.

51. 52.

See Chapter 3. The dissent of McColl JA offers a different reading and would have allowed the employee to recover. It may be recalled that the employee could not rely on s 10 due to the exclusion of alcohol-related incidents under s 10(1B).

53.

Note that the provisions of s 10(1B) discussed above at 11.64, relating specifically to journey claims, now also refer to ‘serious and wilful misconduct’. T A Blundell (ed), Workers Compensation New South Wales, LexisNexis Butterworths, Sydney, 2004, at [2065.48] (formerly edited by C P Mills).

54.

55.

Additional words added (and an explanatory note) by the 2012 Amending Act Sch 7 items [2] and [3], applying to injuries suffered after 19 June 2012: see cl 20 of Sch 6 Pt 19H of the WCA 1987.

56.

See also the summary of Mercer in the judgment of Einstein J in Murray v Shillingsworth [2006] NSWCA 367 at [54]–[58]. Interestingly, his Honour noted counsel’s arguments that Mercer may have been wrongly decided, but of course held that he was bound to follow the Court of Appeal’s decision: see [12]–[17].

57.

58.

59.

60. 61. 62.

63. 64.

65.

The paragraphs following this comment in his Honour’s judgment consider whether or not there is a ‘qualification’ to this in cases of ‘intervals’ of down-time in an overall period of work. But in general the comment (at [128]) seems to represent a rule that is intended to operate in most cases. For another case on the complex transitional arrangements under the 2012 amendments, see Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250, holding that a worker who had made an initial claim for lump sum compensation under s 66 which was settled in 2010, was precluded by the amendments from making a ‘further claim’ after 2012. Probably by way of ‘compensation’ for the fact that the WCA 1987 initially excluded common law damages completely. See 2012 Amendment Act Sch 2 item [13]; applied to injuries occurring on or after 19 June 2012 by cl 15 of Pt 19H of Sch 6 to the WCA 1987. Initially the WIMWCA 1998 contained provisions allowing the ‘privatisation’ of insurance arrangements. But these were never proclaimed to commence, and were repealed as from 1 January 2002. This change was made by the Workers Compensation Legislation Further Amendment Act 2001 (NSW) Sch 9. This was a (perhaps debatable) application of the rule noted in Chapter 6 when discussing the tort action for breach of statutory duty, that the legislation must be designed to protect the interests of the plaintiff who is suing: see 6.21 ff. For a similar decision in Scotland, see Campbell v Peter Gordon Joiners Ltd and Derek Forsyth [2015] ScotCS CSIH 11. See WCA 1987 s 156B.

66. 67.

See WCA 1987 s 175A. See s 175B, inserted by the Workers Compensation Legislation Amendment Act 2002 (NSW) Sch 2[10].

68.

The following summary is largely taken from the WorkCover New South Wales website, . A Brooks, OHS Law in Australia, 4th ed, CCH, North Ryde, 1993, at ¶2404–2406.

69.

[page 567]

12 WORKPLACE HEALTH AND SAFETY AND ANTIDISCRIMINATION LAW

Aims The aims of this chapter are: to discuss the impact of anti-discrimination legislation on workplace safety laws; and to consider appropriate ways of resolving possible conflicts between the two sets of laws.

Objectives After completing this chapter, you should be able to: identify areas where there may be potential conflict between obligations under anti-discrimination legislation and workplace health and safety requirements, and suggest ways of avoiding and resolving such conflicts; and consider the impact of workplace health and safety laws on the area of sexual harassment.

12.1 In the last two chapters of this book we will be considering two topics at the intersection of workplace health and safety (WHS) law with other areas of the law. This chapter will discuss the interaction of the legislation relating to WHS that has been examined in the previous chapters, with laws concerning discrimination. Chapter 13 will deal with the procedures that govern court hearings in Australia, and, with particular relevance to workplace safety, the role of the expert witness. 12.2 Legislation in all Australian jurisdictions, and in particular at the New South Wales and Commonwealth levels, makes it unlawful to discriminate in — among other areas — employment decisions, against someone on the basis of their gender, race or disability, as well as other grounds. The laws are designed to target arbitrary decision-making and workplace decisions based on irrelevant criteria. The aim of the legislation is that decisions in the workplace, and elsewhere, should be based on merit, not on stereotypes. [page 568] One issue that is raised in relation to WHS law is this: suppose that the very ground on which discrimination is prohibited is also a factor which may lead to a breach of the business operator’s duty to maintain a safe workplace. How is this conflict to be resolved?1 The following discussion will consider the overall framework of discrimination law in Australia, before turning more specifically to the impact of that law on WHS law in general. We will conclude by noting that an area covered by the sex discrimination legislation — the area of sexual harassment — might also be covered by the WHS legislation.

Anti-discrimination law in Australia Commonwealth 12.3 The Federal Parliament has legislated to prevent discrimination in a number of areas on the basis of characteristics that belong to different groups of people in Australia. This has occurred largely as a consequence of entry into a number of international treaties and covenants, which has, through the ‘external affairs’ power,2 provided the Federal Parliament with the constitutional power it needed to enact this legislation. There are four major pieces of Commonwealth law in this area: 1.

2.

3.

4.

Racial Discrimination Act 1975 (Cth) (RDA), which as its name suggests prohibits discriminatory treatment on the basis of a person’s ‘race, colour, descent or national or ethnic origin’; Sex Discrimination Act 1984 (Cth) (SDA), banning discrimination on the basis of a person’s sex, marital status, pregnancy, family responsibilities or sexual orientation; Disability Discrimination Act 1992 (Cth) (DDA), prohibiting discrimination on the basis of a person’s disability, defined to include physical and intellectual disabilities as well as ‘the presence in the body of organisms causing disease or illness’; and Age Discrimination Act 2004 (Cth) (AgeDA), which prohibits discrimination on the basis of age.

In general, these laws apply across a wide range of behaviour. For the purposes of this chapter the most significant thing to note is that these laws all operate to make discrimination in the workplace unlawful, covering, for example, offers of employment, terms and conditions of employment, and dismissal: see RDA s 15; SDA s 14; DDA s 15; AgeDA s 18. Under the former Labor government the Commonwealth, in

2012, undertook a consultation aimed at consolidating its various pieces of anti-discrimination legislation into one Act: see ‘Consolidation of Commonwealth anti-discrimination laws’ at . There were a number of serious concerns expressed in the community which meant that the proposed amendments mostly did not go ahead, [page 569] with the exception of amendments to the Sex Discrimination Act 1984 adding grounds related to ‘sexual orientation’ as prohibited bases for discrimination.3 State laws 12.4 In addition to the Commonwealth legislation, there are also laws in each of the states reflecting similar principles. In New South Wales, for example, the relevant legislation is the AntiDiscrimination Act 1977 (NSW) (ADA). While each piece of Commonwealth legislation is usually supported by a separate international treaty or agreement, the New South Wales Parliament is not so confined in its powers, and as a result has chosen to gradually extend the one Act so that it covers a wide range of grounds of discrimination. The ADA prohibits discrimination on the basis of: race (Pt 2); sex (Pt 3); ‘transgender’ identity (Pt 3A); marital status (Pt 4); disability (Pt 4A); a person’s responsibilities to care for someone else (Pt 4B); homosexuality (Pt 4C); and age (Pt 4G).4

In each of these areas discrimination in the sphere of employment is specifically prohibited: see ADA ss 8, 25, 38C, 40, 49D, 49V, 49ZH, 49ZYB. 12.5 The importance of reading the precise terms in which these various pieces of legislation are expressed, however, was emphasised in the High Court decision of IW v City of Perth (1997) 191 CLR 1. That case concerned an allegation of discrimination in the provision of ‘services’ based on the applicant’s HIV-positive status, as a result of the local council’s decision to deny approval for use of a property as a ‘drop-in centre’. The majority of the High Court (Brennan CJ, with McHugh, Dawson and Gaudron JJ) held that the action was not unlawful as the council’s decision not to grant planning approval was not ‘the provision of a service’ within the Western Australian legislation. Brennan CJ and McHugh J remarked (at 12) that: … it must be kept in mind that the Act, like many anti-discrimination statutes, defines discrimination and the activities which cannot be the subject of discrimination in a rigid and often highly complex and artificial manner. As a result, conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the Act. The object referred to in s 3(a) of the Act must, therefore, be understood by reference to the definitions of discrimination which occur in various parts of the Act.

[page 570] Interaction between federal and state laws 12.6 Given that both federal and state laws prohibit discrimination in similar areas, can both sets of laws be valid? It was noted in Chapter 2 that the Commonwealth Constitution s 109 means that federal laws override state laws in the case of any inconsistency. In addition, the doctrine of ‘covering the field’ means that if the Commonwealth is found to have intended to occupy a field of legislation, and has legitimately done so, a state

law on that topic will be invalid whether or not it is possible to obey both laws simultaneously. The problem of conflicting state and federal laws is a very real one in this area. See, for example, Viskauskas v Niland (1983) 153 CLR 280 where the High Court held that the racial discrimination provisions of the ADA could not co-exist with the RDA due to a clear Commonwealth intention to ‘cover the field’. Since that decision, however, a provision has been inserted in each of the Commonwealth Acts specifically providing that the Commonwealth has no intention to ‘cover the field’;5 therefore, there will only be a clash where two provisions are directly inconsistent.6 So, for example, SDA s 11(3) provides:7 11 Operation of State and Territory laws that further objects of relevant international instruments … (3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that furthers the objects of a relevant international instrument and is capable of operating concurrently with this Act.7 …

General scheme of legislation 12.7 The general scheme of the legislation is fairly consistent. It defines what amounts to ‘discrimination’, and then specifies areas of activity where discrimination is unlawful. We will look at the ADA provisions relating to disability discrimination by [page 571] way of example, but a similar scheme is followed in the Commonwealth Acts and in legislation covering other types of discrimination.8

Definition of ‘discrimination’ 12.8

The ADA s 49B provides:

49B What constitutes discrimination on the ground of disability (1) A person (‘the perpetrator’) discriminates against another person (‘the aggrieved person’) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability; or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

While this section is complex at first reading, it provides a good example of the two types of discrimination that are made unlawful by these kinds of Acts. These two types of discrimination are usually called ‘direct’ and ‘indirect’ discrimination. Direct discrimination 12.9 Direct discrimination (under ADA s 49B(1)(a)) occurs where the ‘prohibited ground’ is a direct ground of the decision to take some action relating to a person. This occurs where a person is given less favourable treatment than another person, in [page 572]

comparative circumstances, on the basis of a prohibited ground, such as disability. For example, in Willis v State Rail Authority (NSW) (No 2) (1992) EOC ¶92-455, Mr Willis was refused employment on the grounds of his disability. His standard of hearing was shown to be less than that required by the relevant Public Service Regulations for the job for which he had applied — an apprentice motor mechanic. Another example of direct discrimination would be a refusal to employ a person as a police officer simply on the ground that they suffered from diabetes: see Commissioner of Police v Burrows (SC(NSW), James J, No 30002 of 1995, 25 August 1995, unreported). Direct discrimination was also relevant in X v Commonwealth of Australia (1999) 167 ALR 529 (HIV Soldier case). There, a member of the Australian Defence Forces had been dismissed because he was found to be HIV-positive. In another Defence Force case, Williams v Commonwealth [2002] FMCA 89, the RAAF dismissed a member on the basis of his insulin dependent diabetes.9 In Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217, a worker had been demoted due to his poor English language skills which made it difficult for him to read and write safety reports. The Appeal Tribunal ruled that there had been no direct race discrimination because it was not established that the ground of dismissal had been Mr Tanevski’s Macedonian origin; rather, it was his low level of literacy. The court said (at 50): If the other two supervisors, or a hypothetical non-Macedonian supervisor whose first language was English, had the same literacy level as Mr Tanevski, Fluor would have treated them in the same way that it treated Mr Tanevski. Consequently, the differential treatment requirement is not satisfied and the complaint of direct race discrimination fails.

Interestingly, however, in this case a finding of indirect discrimination was made out. This case is discussed further at 12.62. 12.10

An example where ‘direct discrimination’ was clearly

found is Police Association of New South Wales v Commissioner of Police, New South Wales Police Force [2010] NSWADT 56. A police officer, Mr Vary, applied for transfer from his existing unit to a special unit. He was required to show that he could survive being forced to breathe tear gas. The doctor in charge of the area had a policy that no one with a history of asthma was allowed to undergo the relevant test. As Mr Vary had admitted to a history of asthma, he could not even attempt the qualifying test. Mr Vary conceded that when he was five a doctor had diagnosed him with ‘suspected asthma’; however, he had never experienced any recurrences and was able to produce recent specialist medical advice confirming that he did not suffer from asthma. [page 573] This was a clear case of direct discrimination: Mr Vary was being denied the opportunity for promotion because he was thought to have a disability — the asthma. In the end the tribunal ruled that this was unlawful employment discrimination, contrary to ADA s 49D, to be discussed below at 12.15. The Police Force agreed to allow him to undertake the test, and the tribunal awarded some $10,000 damages (half of which was for the annoyance and humiliation he had to endure due to the inflexible policy). One final point to make about ‘direct’ discrimination is that both the New South Wales and Commonwealth laws governing, say, disability discrimination, contain provisions to the effect that if an act is done for a number of different reasons, and only one of those reasons is discriminatory on a protected ground, then the act will still be subject to the prohibition on unlawful discrimination.10 Indirect discrimination

12.11 Indirect discrimination (under ADA s 49B(1)(b)) occurs, however, where the apparent basis of the action is not a ‘prohibited ground’, but the decision will impact much more severely on people with a certain characteristic than it will on others in the community. The notion of ‘indirect discrimination’ was first clearly spelled out by the United States Supreme Court in Griggs v Duke Power Co (1971) 401 US 424. In that case, it was held that acts or decisions made by reference to criteria or standards which are apparently non-discriminatory, but which have a discriminatory effect, would be treated as prima facie proof of discrimination because of sex, race or other identified characteristics. In Griggs a general antidiscrimination provision, which was directed to the elimination of racial discrimination, was interpreted as prohibiting the use of a selection test that, although not overtly differentiating on the basis of race, had a ‘disparate impact’ on persons from different racial backgrounds. Mason CJ and Gaudron J therefore stated in Waters v Public Transport Corp (1991) 103 ALR 513 at 519 (Waters) that indirect discrimination occurs where: … some criterion has been used or some matter has been taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if differential treatment had been accorded precisely for a reason of that kind.

In that case it was claimed that the introduction of a new system of fare-collection on Melbourne trams, which involved the removal of conductors from trams, was indirectly discriminatory against certain groups of disabled people who, as a result [page 574] of their disabilities, would be prevented from using the new

system. Under the New South Wales legislation, s 49B(1)(b) would have been relevant. Examples of ‘indirect’ discrimination 12.12 A good example of indirect discrimination in the workplace which was partly related to WHS can be seen in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, a case which eventually reached the High Court of Australia. The case began as a complaint of unlawful (direct) sex discrimination. It was claimed that Australian Iron & Steel (AI&S) had adopted a policy over many years of refusing to employ women in certain positions. The previous hiring practice was directly discriminatory, but had been justified by the company on the basis of supposed compliance with a WHS requirement — Factories Shops and Industries Act 1962 (NSW) s 36 — which forbade women workers from lifting weights above a certain limit.11 It was questioned whether this requirement was the real reason for the practice or not. When it became clear that the company’s practice was likely to be found unlawful, it began to hire men and women on a more non-discriminatory basis. After the new practice had been in place for a short time, however, economic pressures led to the need for workers to be retrenched. The retrenchment policy adopted was ‘last on, first off’. In effect, because women had been denied employment for such a long time, a greater proportion of women were being retrenched than men. Thus an apparently non-discriminatory redundancy practice was shown to be in fact discriminatory, due to the past discriminatory hiring practice. As Covell and Refshauge put it: When retrenchments were made, the apparent neutrality of gate seniority, the ‘last on, first off’ principle, reinforced earlier discrimination. The company’s delay in hiring women meant that as women were among the last hired, they were also among the first retrenched.12

The New South Wales Equal Opportunity Tribunal found that the selection of gate seniority as a criterion for dismissal was, in the circumstances, indirectly discriminatory in Najdovska v Australian Iron & Steel Pty Ltd (1985) EOC ¶92-140, a decision ultimately upheld by the High Court: see Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165. ‘Characteristics’ discrimination 12.13 Note that the legislation makes it unlawful to discriminate against someone, not just on the basis of their disability, but also on the basis of ‘a characteristic that appertains generally to persons who have that disability’: s 49B(2). The New South Wales Administrative Decisions Tribunal Appeal Panel (NSW ADTAP) noted in Commissioner of Police v Mooney (No 2) [EOD] [2003] NSWADTAP 67 at 56 (Mooney (No 2)): [page 575] McHugh and Kirby JJ considered the purpose of the ‘characteristics extension’ provisions in anti-discrimination legislation in Purvis v NSW [2003] HCA 62. While these two justices formed the minority in that case, there is nothing in their comments about these provisions that is at odds with the majority judgments. They stated at [130]: Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that antidiscrimination legislation is not evaded by using such characteristics as ‘proxies’ for discriminating on the basic grounds covered by the legislation.

In Mooney (No 2), the NSW ADTAP found that a dismissal of an employee, who had multiple disabilities, on the basis of a tendency to take a large amount of sick leave, was relevantly discriminatory because it was based on a ‘characteristic’ that appertained generally to people with the employee’s conditions. ‘Failure to make adjustments’ as discrimination

12.14 It should also be noted that the Disability Discrimination Act 1992 (Cth) has recently been amended13 by the addition of another type of provision to the ‘traditional’ ground of ‘direct discrimination’. Section 5(2) and (3) now provide: 5 Direct disability discrimination … (2) For the purposes of this Act a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator does not make or proposes not to make reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has or would have the effect that the aggrieved person is because of the disability treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section circumstances are not materially different because of the fact that because of the disability the aggrieved person requires adjustments.

Section 4 defines a ‘reasonable adjustment’ as follows: “reasonable adjustment”: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.

[page 576] Section 11 provides a definition of ‘unjustifiable hardship’, which requires the balancing of a number of factors. It is not entirely clear yet whether this form of discrimination will have an impact on the range of matters we are concerned with in this chapter.14 There are some decisions dealing with the question of ‘reasonable adjustment’ in the situation of the workplace. Weber v Deakin University (Human Rights) [2014] VCAT 1440 dealt with the

question whether a reasonable accommodation had been made in the case of a university lecturer dismissed due to depression — the tribunal concluded that it had. See also Watts v Australian Postal Corporation [2014] FCA 370 where Mortimer J in the Federal Court gave a detailed and close analysis of the ‘reasonable adjustment’ provisions in the case of a worker who had suffered a psychological injury and was then attempting to come back to work. The judge found that Australia Post had not made ‘reasonable adjustments’ to the circumstances of the worker and should have done more. Some points that were made in the lengthy decision included: the obligation to make ‘reasonable adjustments’ is partly based on an international convention to which Australia is a party, the Convention on the Rights of Persons with Disabilities, and hence interpretation may be enlightened by reference to the convention if there is doubt — see [19]–[20]; the somewhat odd definition of ‘reasonable adjustment’, which is that any adjustment made is reasonable unless it would impose an ‘unjustifiable hardship’ on the employer — see [22]; and the obligation is a very wide one which would cover both technology and also working systems — see [23]. Another case involving the question of ‘reasonable adjustments’ was Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056, where it was held that allowing an employee not to work full-time in a ‘call centre’, but to rotate to other duties regularly, would have been a reasonable adjustment in circumstances where she suffered a disability. Areas where discrimination is unlawful 12.15 We now return to the discussion of the general approach of the legislation, once discrimination has been defined. The relevant Acts proceed to outline areas of life

[page 577] in which such discrimination is unlawful. To continue with the example of disability discrimination, ADA s 49D provides: 49D Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of disability: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment; or (b) in determining who should be offered employment; or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) in the terms or conditions of employment which the employer affords the employee; or (b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment: (a) for the purposes of a private household; or (b) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5; or (c) by a private educational authority. (4) Nothing in subsection (1)(b) or (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment; or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

The section prohibits discrimination in the area of the decision to employ (s 49D(1)) and in decisions about conditions of employment and dismissal: s 49D(2). It then allows for defences related to the type of employer (s 49D(3)) or the type of work involved: s 49D(4). As will be discussed below (see 12.27), the issue of whether a particular requirement is an ‘inherent requirement’ of the specific job can be difficult to determine. [page 578] General exemptions 12.16 The Acts in all jurisdictions contain a number of general exemptions from the application of the anti-discrimination provisions. The list of exemptions is not long, however, and is gradually becoming getting shorter and shorter with the passage of time. For example, SDA s 44 contains a power to grant exemptions to certain employers from compliance with the Act for certain periods of time. SDA s 40(1) was also used initially to exempt employers from compliance with the Commonwealth law while some state laws were still discriminatory. However, gradually these, and other, exemptions have been reduced or phased out. 12.17 The most relevant exemption for the purposes of this chapter is that contained in ADA s 54, which provides: 54 Acts done under statutory authority (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: (a) any other Act, whether passed before or after this Act; (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act; (c) an order of the Tribunal; (d) an order of any court, not including an order or award of a court or

tribunal having power to fix minimum wages and other terms and conditions of employment.

As will be discussed below at 12.23, this directly raises the issue of whether something has been done ‘in order to comply with’ a provision of another law, and if so whether it was ‘necessary’. Another general exemption has been added to the discrimination legislation in the disability area. In New South Wales, ADA s 49PA now provides that it is not unlawful to discriminate against a person in employment on the basis of their disability, if the disability relates to addiction to a prohibited drug.15 Note, however, that an addiction to another type of drug — such as methadone, which is not on the relevant list — may still amount to a disability against which it is unlawful to discriminate: see Carr v Botany Bay Council [2003] NSWADT 209. Enforcement 12.18 What remedies does a person alleging a complaint of unlawful discrimination have? [page 579] Effectively the legislation envisages that a person who has been affected by an act of unlawful discrimination may make a complaint to the appropriate body, which will be followed by an attempt at conciliation or mediation. If that process does not achieve a satisfactory result, there may then be a hearing before a tribunal of some nature. 12.19 In New South Wales, for example, the procedures are set out in ADA Pt 9. A complaint may be lodged with the President of the Anti-Discrimination Board (s 89A);16 there is then an attempt to conciliate: s 91A. If this is unsuccessful, then the Civil and Administrative Tribunal17 (s 95) may hold an inquiry into the

complaint. There is power under s 108, if the complaint is substantiated, to order payment of damages up to $100,000, to issue an injunction or order redress to be provided in some other way.18 It should be noted that, while the limit of $100,000 for an award of damages may seem to provide little deterrent to a large employer, in situations where a number of individuals are involved — and possibly multiple acts of discrimination relating to those individuals — the amounts awarded may build up. In the Banovic case referred to previously (see 12.12)19 some 38 complainants were separately awarded damages, some of which were for both failure to hire initially (the direct discrimination claim) and for early retrenchment (the indirect claim), taking the total damages award against the company to over one million dollars.20 12.20 Procedures in other jurisdictions are similar to those in New South Wales. The main exception to this is the problem raised for the federal body, the Australian Human Rights Commission (AHRC),21 by the decision of the High Court in Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245. That decision held that the enforcement procedure initially provided by the RDA was unconstitutional, as it breached the principle of the ‘separation of powers’.22 All the Commonwealth Acts were amended by the Human Rights Legislation Amendment Act 1995 (Cth). Orders of the AHRC may not now be directly enforced, but a separate application may be made [page 580] to the Federal Court for a remedy based on a breach of one of the Acts, and the Federal Court may take into account previous findings of the AHRC.23

Discrimination and WHS law 12.21 After the consideration above of the framework of Australian law on the subject, it is now possible to approach the basic issue for WHS purposes: what if the ground on which discrimination is prohibited is somehow relevant to workplace safety? Or what if measures to ensure safety in practice impact onerously on one group as opposed to another? The research on the factual question — as to whether people with a disability are inherently more ‘unsafe’ than others at work — tends to suggest this popular view is a myth: see Are People with Disability at Risk at Work? A Review of the Evidence.24 This means that it is very important that judgments about the impact of a worker’s disability on their safety — or on that of others — are made on the basis of a specific, evidence-based inquiry rather than on a generalised stereotype.

Older, directly discriminatory, legislation 12.22 The question of how to resolve a clash between safety and discrimination provisions was very directly raised by older legislation that was framed as ‘protective’ legislation, designed to prevent women being forced to carry out certain types of work. An example of this type of legislation, and which was in force until relatively recently, was the Factories Shops and Industries Act 1962 (NSW) s 36 (repealed), which provided: No person employed in a factory shall be allowed or required to lift or carry by hand a greater mass than — … in the case of females over eighteen years of age — 16 kilograms

Brooks discusses this provision extensively.25 This provision of the Act was later replaced by other rules under the Occupational Health and Safety (Manual Handling) Regulation 1991 (NSW), the application of which did not specifically refer to gender.

Matters to do with manual handling were then dealt with under the Occupational Health and Safety Regulation 2001 (NSW) Pt 4.4 cll 79–81, again on a ‘gender-neutral’ basis. [page 581] Under the Work Health and Safety Regulation 2011 (NSW), cl 60 now requires a business operator to ‘manage risks’ created by ‘hazardous manual tasks’, defined in cl 5(1) to include tasks such as lifting loads which require ‘high or sudden force’, among other things. It is interesting to note that under cl 60(2)(g) it is relevant to take into account the ‘nature, size, weight or number of persons, animals or things involved in carrying out the hazardous manual task’. Would the gender of a person be described as part of the ‘nature’ of a person? Presumably it may be one, but only one, of a number of factors that would need to be considered.

Clash between WHS and discrimination laws 12.23 Today, the question of a possible clash between safety and discrimination laws is usually raised, not in relation to a direct clash of legislative requirements, but in situations where an employer considers it necessary to make a decision in order to comply with the relevant WHS legislation, but that decision may possibly involve unlawful discrimination. Possible legislative approaches to the clash between antidiscrimination provisions and WHS laws include the following: 1.

2.

to specifically exempt WHS laws, or decisions which are justified by safety requirements, from the application of the discrimination legislation; to provide a more general exemption under the discrimination legislation for anything done in compliance with another law; or

3.

to override all WHS laws by discrimination legislation.

These are not choices that can be made by individual courts; they are decisions that would have to be made by a parliament framing the structure of its legislation. No jurisdiction has as yet chosen to follow the third option although, as noted above at 12.16, the range of permissible exceptions to anti-discrimination legislation is narrowing. Option 1: Exempting WHS decisions from discrimination laws 12.24 Some jurisdictions have followed the first option noted in the previous paragraph. The Anti-Discrimination Act 1991 (Qld) s 108, for example, provides a general exemption from its provisions for actions taken that are ‘reasonably necessary’ to protect the health and safety of people at a place of work. In M v Dental Board of Queensland [2011] QCAT 373, the tribunal found that it was reasonable for the Dental Board to apply its policy of excluding someone who was HIV-positive from practising as a dentist, as this was reasonably necessary to protect safety — presumably of both patients and dental nurses. 12.25 The approach may be more specifically related to certain areas of discrimination. In relation to disability (and other ‘physical features’) discrimination the Equal Opportunity Act 2010 (Vic) s 86 provides: [page 582]

86 Protection of health, safety and property (1) A person may discriminate against another person on the basis of disability or physical features if the discrimination is reasonably necessary — (a) to protect the health or safety of any person (including the person discriminated against) or of the public generally; or (b) to protect the property of any person (including the person

discriminated against) or any public property. (2) A person may discriminate against another person on the basis of pregnancy if the discrimination is reasonably necessary to protect the health or safety of any person (including the person discriminated against).

A related provision concerning safety can be found in the Equal Opportunity Act 1984 (SA) s 71(2)(a). For cases on some Victorian26 and South Australian provisions, see O’Neill v Burton Cables Pty Ltd (1986) EOC ¶92-159; Urie v Cadbury Schweppes Pty Ltd (1986) EOC ¶92-180; Smith v St John Ambulance Australia, South Australia Inc (1991) EOC ¶92-383; Hall v Victorian Amateur Football Association [1999] VCAT 627 and Cercone v Bull’s Transport Pty Ltd [2002] SADC 123. The decision in Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056 also involved some discussion of s 86 of the 2010 Victorian Act; see, for example, at [292]. Option 2: WHS decisions justified by general exemptions 12.26 However, the approach outlined above in 12.24 is not the approach taken in New South Wales or under the federal legislation. In each of those jurisdictions, option 2 mentioned in 12.23 is used: a decision to discriminate on safety grounds needs to be justified by a more general exemption provision, rather than through an explicit safety ‘defence’. ‘Inherent requirements’ of position 12.27 In New South Wales an employer could in some circumstances rely on the exception set out in ADA s 49D(4) (see 12.15 above) if safety was viewed as an ‘inherent requirement’ of the position. That this is indeed the case is made clear by the High Court’s decision in the HIV Soldier case (discussed above at 12.9), where McHugh J commented (at [32]–[33]):

Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely ‘so obvious that it goes without saying’1 — which is one of the tests for implying a term in a contract to

[page 583] give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment.2 It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties.3 It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment. [emphasis added] 1. 2.

3.

Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 346–347. Liverpool City Council v Irwin [1977] AC 239 at 254–255 per Lord Wilberforce, 257–258 per Lord Cross of Chelsea; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420 per Brennan CJ, Dawson and Toohey JJ, 447–453 per McHugh and Gummow JJ. Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 at 572–573 per Viscount Simonds, 586 per Lord Radcliffe, 597 per Lord Somervell of Harrow; Kashemije Stud Pty Ltd v Hawkes [1978] 1 NSWLR 143.

Other members of the High Court also supported the proposition that the ability to work without endangering others was an ‘inherent requirement’ of employment.27 12.28 In a very helpful analysis, McHugh J goes on to point out (at [41]–[42])) that: In determining whether the employee poses a risk to the health or safety of other employees (or other persons or property), ordinarily it will be relevant to have regard both to the degree of the risk (in the sense of the chance of it being realised), and the consequences of it being realised (in the sense of the seriousness of the harm that will ensue if it is realised).1 In School Board of Nassau County v Arline,2 the United States Supreme Court held that regard should be had to, inter alia, the nature and duration of the risk of transmission of tuberculosis, the probability of transmission,

and the severity of the consequence of transmission. Similarly, in Canada (Human Rights Commission) v Canada (Armed Forces), Robertson JA said:3 There is a substantial difference between serious risk of harm (a broken arm) and a risk of serious harm (death). In determining whether the employee poses a risk to the health or safety of others because of his or her disability, the risk must be specifically referable to those persons or things affected by the particular employment. Any risk flowing from a disability cannot affect the employee’s capacity to carry out the inherent requirements of the particular employment unless the degree of the risk arising from the disability is increased, or the consequences of the risk being realised are made more serious, by reference to some essential feature or defining characteristic of the particular employment. 1.

Cf Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–48 per Mason J.

2. 3.

480 US 273 at 288 (1987). [1994] 3 FC 188 at 225.

[page 584] These comments also suggest that the supposed risk must be a real risk, not a fanciful one, and must be one of sufficient seriousness to justify the employer’s action. It should not be relevant that the employer (or some group of employees) holds an untested view that ‘people of this sort’ are dangerous in the workplace. 12.29 Note that to establish a defence where s 49D(4) is relevant, it is not sufficient merely to establish that safety is an ‘inherent requirement’ of the position, or that the employee would be unable to perform those requirements safely unaided. In addition, in accordance with s 49D(4)(b), it will also be necessary to show that the employee would not be able to perform those requirements safely without provision of ‘services or facilities’ which would ‘impose an unjustifiable hardship’ on the employer. Section 49C sets out matters to be considered in determining ‘unjustifiable hardship’, including the nature of the benefits or detriments flowing from the measures concerned, and also the

cost to the person expected to provide them, and their financial circumstances. In X v Commonwealth (at 39–40) McHugh J commented on this feature of the Commonwealth legislation, which at the time was relevantly identical (as noted by the New South Wales Administrative Decisions Tribunal (NSW ADT) in Zraika v Commissioner of Police, NSW Police [2004] NSWADT 67 at [30]) to the New South Wales legislation: Section 15(4) must be read as a whole.28 When it is so read, it is clear enough that the object of the sub-section is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination falling within s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was: (a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also (b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide. If s 15(4)(a) provided a defence independently of s 15(4)(b), the employer could lawfully discriminate against an employee even though the employee could carry out the inherent requirements of the particular employment once he or she was provided with services or facilities the provision of which imposed no undue hardship on the employer. [emphasis added]

Hence, it would not be enough for an employer to refuse to employ someone on the grounds that they required the use of some inexpensive equipment in order to work safely; the employer would be obliged to provide such equipment. [page 585] 12.30 In Zraika v Commissioner of Police, NSW Police [2004] NSWADT 67, the NSW ADT was dealing with a claim of discrimination based on a refusal to employ Mr Zraika as a

member of the police force as a result of his failing a standardised eye test. The tribunal found that the commissioner had discriminated unlawfully, and that the s 49D(4) ‘inherent requirements’ defence was not established because: 1.

2.

3.

the commissioner had not made an ‘individualised’ assessment of Mr Zraika, who was able to provide evidence of employment — which had not been affected by his weakness of vision — in other areas: at [72]–[73]; the commissioner was not able to show that the particular eye test used accurately addressed the issues which needed to be considered in determining whether or not Mr Zraika could perform his duties safely: at [74]–[80]; and the commissioner had not addressed the issue of whether, even if Mr Zraika could not perform safely, he could have done so with the provision of ‘services or facilities’ which would not have imposed unjustified hardship: at [81]–[86].29

12.31 In Green v Dept of Family and Community Services [2013] NSWADT 193 Ms Green had applied for a job as a part-time mental health nurse, but had been declined when a medical report revealed that she had a pre-existing psychological condition which meant that she would need to be supervised for at least six months after starting work, and the job required the nurse to be able to work on her own for substantial periods of time. The tribunal concluded (at [137]–[138]) that as a result of her condition, Ms Green was not able to carry out the ‘inherent requirements’ of the position: As we have held above, being able at all times to exercise reasonable care and skill in carrying out the duties of the position and, in particular, being at all times able to carry out those duties without endangering the safety of those in her care were part of the inherent requirements of the casual DSW position which she had to be able to perform unsupervised on a substantial number of shifts. For the reasons given above there was a risk that Ms Green would not be able to do this and the extent of risk can be ascertained from the fact that Dr Field would not recommend that Ms Green be employed except on shifts where a supervisor was present, “for the first six to twelve months at least, depending on her performance”.

In these circumstances, the Tribunal is satisfied that the evidence of Dr Field and Dr Greenway establishes that in Ms Green’s case as at late 2010 she could not meet the inherent requirements of the casual DSW position because of her disability. [emphasis added]

[page 586] The tribunal then went on to consider (at [152]–[153]) whether the provision of services or facilities to allow Ms Green to do the work would create ‘unjustifiable hardship’ and concluded that it would create more costs, which could not readily be met: On these bases, the Tribunal accepts that providing the supervision services recommended by Dr Field in relation to Ms Green was not possible from the budget within which Ms Dunworth had to work … Having regard to all of the matters dealt with above, the Tribunal is satisfied that the respondent has established that the provision of the supervision services recommended by Dr Field in relation to Ms Green’s employment as a casual DSW would have imposed an unjustifiable hardship on the respondent. [emphasis added]

12.32 An important point to note about the ‘inherent requirements’ defence in NSW ADA s 49D(4), however, is that it is not applicable in all potentially discriminatory employment decisions. It is only relevant, as stated in its introductory clause, to decisions described in s 49D(1)(b) or s 49D(2)(c) — in other words, ‘hiring’ and ‘firing’ decisions — and not to decisions such as whether to offer a promotion or to reduce shifts. A New South Wales Court of Appeal case involving ADA s 49D illustrates the anomaly in the legislation. In French v Sydney Turf Club [1999] NSWCA 195, the applicant worked behind a bar at a racecourse. Due to a work-related injury she became incapable of working a full eight-hour shift, and her employers reduced her work by giving her four-hour shifts. She complained that this was unjustified discrimination. The anomaly that the case reveals is the fact that the exemption in s 49D(4), where a disability makes a person unable to fulfil the

‘inherent requirements’ of the work, is not applicable in this sort of case. This flows from the fact that the introductory words of s 49D(4) make it only applicable where s 49D(1)(b) or s 49D(2)(c) would otherwise apply. Those subsections refer to a refusal to employ someone, and a decision to fire someone. But they do not cover a decision to alter the terms and conditions of employment, such as the decision in this case to reduce hours of work. As Giles JA commented in French (at [75]–[76]): Section 49B(1) describes two kinds of discrimination. That in para (a) has come to be known as direct discrimination, and that in para (b) has come to be known as indirect discrimination (see Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 175, 182–3; Waters v Public Transport Corporation (1991) 173 CLR 349 at 357, 392–3, 400; I W v City of Perth (1997) 146 ALR 696 at 699, 709, 723). Before the Tribunal, Mrs French relied on both kinds of discrimination, and on the proscriptions in s 49D(2)(a), (b) and (d). She was already employed by the Club, and the Club did not dismiss her, so the proscriptions in s 49D(1) and (2)(c) did not arise. It followed that the exculpation in s 49D(4) also did not arise, and hence the agreement before the Tribunal that the Club could not rely on what was called the ‘unjustifiable hardship’ section (see s 49D(4)(b)); hence also, the Club could not rely for exculpation on inability in Mrs French to ‘carry out the inherent requirements of the particular employment’

[page 587] (see s 49D(4)(a)). The only available exculpation suggested in the course of the inquiry was to do with occupational health and safety. [emphasis added]

12.33 The situation appears to be that in these circumstances either the club was obliged to continue to employ the applicant at the full eight-hour rate — despite the fact that she conceded she was unable to do what was required at the beginning and end of each shift, due to her injury — or else they should have simply fired her! Meagher J (who would have declined leave to appeal) commented (at [8]): Mrs French’s complaint is that, under New South Wales’ quaint anti-discrimination legislation, an employer may not take an employee’s medical condition into account in fixing his or her terms of employment. Such a proposition, on the face of it

bizarre, may indeed be correct, but, if it be correct one cannot help wondering if that is what Parliament intended.

The majority of the court referred the case back to the Equal Opportunity Tribunal (EOT) for further findings. In the subsequent proceedings the ADT (successor to the EOT), after carefully examining the relevant medical evidence, concluded that Mrs French was unable to safely work a full shift, and that pursuant to the exemption in ADA s 54 (applying Occupational Health and Safety Act 1983 (NSW) s 15; discussed below at 12.39) the Turf Club had been justified in its decision: see French v Sydney Turf Club Ltd (No 2) [2002] NSWADT 98. 12.34 In Coleman v Commissioner of Police, New South Wales Police Service [2001] NSWADT 34, the tribunal affirmed its view that the defence in s 49D(4) did not apply where the decision that was made was a decision to refuse promotion: at [35].30 The same view was taken in Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93 at [74]–[76]. The tribunal pointed out that this operation of the legislation had been described in a 1999 Report of the New South Wales Law Reform Commission as ‘illogical’, but that parliament had so far not taken any action to amend it. 12.35 This point has been emphasised in a number of decisions under the ADA, including in Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261. In that case the complainant, a member of the New South Wales Police Force, had been injured at work and was later denied promotion to a position which required him to be fit enough to engage in the active pursuit of offenders. The ADT noted that the question of ‘inherent requirements’ did not arise, as the complaint was not about hiring or firing but about the question of promotion; see, for example, at [39]. The case contains a careful review of the area, and repays detailed study, which is not possible here. In the course of coming to their conclusion, however (which did

not in the end involve the ‘inherent requirements’ defence) the tribunal also made some very [page 588] helpful comments about cases in which this defence is relevant. They noted that because of the provisions of s 49D(4), in a ‘hiring or firing’ case an employer is actually obliged to treat a disabled person differently to an able-bodied person, because the employer is obliged to consider whether or not appropriate accommodation can be made to allow the disabled person to do, or to continue to do, the job. Again, this does not require an alteration to be made to the ordinary description of the job. But it does require consideration of whether some arrangements can be put in place without undue hardship to allow the applicant to do the job. The tribunal commented (at [57]–[59]): [I]n those cases when the so-called ‘inherent requirements’ defence in s 49D(4) of the Act is in issue — when an employer may be contemplating refusing to hire or dismissing an employee — the employer is under no obligation to alter the duties of the job in order to cater for an employee with a disability. What s 49D(4) requires an employer to do before failing to hire a person, or dismissing an employee, with a disability who may be unable to perform the job in question because of that disability is to: (1) properly identify the inherent requirements of the job (being the actual requirements as opposed to the imagined or theoretical requirements), (2) determine whether the employee with a disability could perform those inherent requirements of the job with the aid of services or facilities which are not required by people without the employee’s disability, and (3) determine whether it would impose an unjustifiable hardship on the employer to provide the employee with those services or facilities which would enable him or her to perform the job in question. The first part of this process — identifying the inherent requirements of the job — does not require the employer to alter the duties of the job in question in order to render the job suitable for a person with a disability. What it does require the employer to do is to focus upon what the occupant of the job actually does in the workplace rather than to proceed with assumptions about what the occupant might theoretically do but never in fact does as part of the job. The second and third parts of this process oblige employers to treat some people with a disability differently from others in the community. When dealing with job applicants with a disability, or existing employees with a disability who are facing dismissal, the employer must

consider whether the applicant or employee could perform the inherent requirements of the job with the aid of services or facilities which are not required by people without that person’s disability and then determine whether it would impose an unjustifiable hardship on the employer to provide that person with those services or facilities. So described, s 49D(4) of the Act is more than a defence or exception to liability. In certain limited circumstances (hiring and firing) it places a positive obligation on an employer to identify whether a person with a disability could perform the job in question with the aid of services or facilities and then to provide the person with those services or facilities if it would not impose an unjustifiable hardship on the employer to do so. It is a legislative stipulation that there be different treatment of people with a disability in those limited circumstances. An employer may invoke the defence or exception to liability set out in s 49D(4) only when the employer has done the positive things dictated by that sub-section.

[page 589] 12.36 The Commonwealth Productivity Commission in its Review of the Disability Discrimination Act 1992 (Report No 30, April, 2004) recommended that for the Commonwealth DDA a defence relating to an inability to carry out the ‘inherent requirements’ of a position should be extended to demotion and all employment decisions (not just hiring and firing): see Rec 8.4. The commission considered the possibility of including a specific exemption in the DDA relating to health and safety issues, but in the end recommended against this on the basis that existing exemptions were adequate (if their other recommendations were accepted): see the discussion in s 12.5 of the Report. The Commonwealth Government response to the Productivity Commission report, released on 25 January 2005, indicated that the then government had accepted the recommendation that ‘inherent requirements’ cover all employment decisions. These amendments have now been made. DDA s 21A now provides: 21A Exception — inherent requirements (1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discrimination relates to particular work (including promotion or transfer to particular work); and (b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.

This provides a general defence of ‘inherent requirements’ to most employment decisions. This defence, while it does apply to promotion or transfer, will not be applicable to certain other decisions, such as providing training or benefits, if they are already employed: see s 21A(4)(a) for details. The amendment does, however, appear to deal with most situations that have been previously identified as causing problems. 12.37 However, the New South Wales legislation has not been amended to date, so a defence against an action brought under the ADA cannot use the ‘inherent requirements’ defence outside the hiring and firing area. Since the Commonwealth and New South Wales legislation are apparently both intended to operate together, there is a tricky question as to whether the Commonwealth DDA defence will override the provisions of the ADA. At the very least one can say that if a claimant brings an action under the DDA, as opposed to the ADA, then the defence of ‘inherent requirements’ will apply even outside the ‘hiring and firing’ area. There was a discussion of the interaction between the ‘reasonable adjustments’ provisions under the Commonwealth DDA and the new ‘inherent requirements’ defence in Watts v Australian Postal Corporation [2014] FCA 370. It was held that under the phrase ‘other benefits’ in s 15(2)(b) (where denial of such was to be unlawful discrimination) things such as ‘attendance at the workplace’ and satisfaction gained [page 590]

from work could be included, so that where these things were denied by Australia Post to Ms Watts on the basis of her medical condition, there had been discrimination under s 15: see, for example, at [271]. Where a claim under s 15(2)(a) as to ‘terms and conditions’ had not been made, then due to the specific terms of s 21A(4), exempting s 15(2)(b) and (d) from the operation of the provision, the ‘inherent requirements’ defence was not available: see [88]. Clash with other legislation 12.38 Another way in which a decision adverse to a disabled employee could be justified on safety grounds would be if it could be shown, in reliance on ADA s 54, that compliance with the ADA was not possible because it was ‘necessary’ to discriminate to fulfil the employer’s obligations under another law. If, for example, the general duty under Work Health and Safety Act 2011 (NSW) s 19 is regarded as the relevant legislation that must be complied with, the question will be: what will amount to something being ‘necessary’ for the purposes of complying? In Waters v Public Transport Corp (1991) 103 ALR 513, McHugh J said (at 561), approving the decision of the NSW EOT in Clinch v Commissioner of Police (1984) EOC ¶92-115 (Clinch): … in order to fall within the exception in s 54, the Commissioner had to demonstrate that his conduct occurred pursuant to an actual requirement of an Act and that it was necessary for him to pursue such a course of conduct … the requirement of the ‘other Act’ must be mandatory and specific.

Thus it is probably necessary to prove with a high degree of certainty that there was no other way of ensuring safety than by adopting a discriminatory practice. 12.39 In Willis v State Rail Authority (NSW) (No 2) (1992) EOC ¶92-455, for example, the applicant was excluded from employment as a motor mechanic due to an inflexible rule excluding those with hearing loss greater than 75%. The State Rail Authority (SRA) alleged that they were justified in doing so on the

basis of compliance with the former Occupational Health and Safety Act 1983 (NSW) (OHSA 1983) s 15 and the former Factories (Health and Safety Hearing Conservation) Regulation 1979 (NSW) cl 5. The claim based on the OHSA 1983 related to an allegation that, with his hearing unassisted by a hearing aid, the applicant would be unable to hear warning shouts when some situation of danger arose in the workshop. On the other hand, if he did wear a hearing aid, the SRA alleged that the hearing aid would be technically incapable of preventing him from being exposed to an unacceptable ‘daily noise dose’ under the Hearing Conservation Regulation cl 5. The tribunal held that it was not proven on the facts that the applicant was in greater danger than others, or a source of greater danger to others. They commented that a number of the so-called dangers to which the applicant would be exposed were shared with others in a noisy workshop. They were also struck by the fact that an existing employee had similar hearing loss problems to the applicant but had performed satisfactorily over a number of years. They also took into account technical [page 591] evidence that with certain types of hearing aids the noise exposure problem could be solved. In general, the approach they took was to be critical of the ‘blanket’ application of exclusionary criteria when the individual circumstances of the applicant had not been properly assessed. 12.40 The appropriate approach to be taken is well summarised in Australian & New Zealand Equal Opportunity Law and Practice:31 … if employers have any concerns about any particular element of risk attaching to a job in light of an employee’s disability, that risk must be assessed realistically. It should not be assessed on the basis of speculation as to remote or trivial possibilities.

In general, any determination of health and safety requirements in the workplace must be based on an individualised assessment of objective and specific evidence about a particular individual’s present ability to perform essential job functions, not on general assumptions or speculations about disability … The risks in hiring a person with a disability must be specific rather than generalised, significant rather than minute and current rather than former, speculative or remote, before a person with a disability can be lawfully refused a job. [emphasis added]

The comments of the Victorian Equal Opportunity Board in Cooper v Ford Motor Co of Australia Ltd (1987) EOC ¶92-191 at 76,285 are a helpful summary of the appropriate approach in cases of this kind: … an employer must investigate each case and cannot apply a general rule which would exclude a whole class of persons from employment because some members of that class may not be suitable employees.

In David Jones (Aust) Pty Ltd v P (SC(NSW), Abadee J, 29 August 1997, unreported) (David Jones) the court suggested that it may sometimes be difficult to rely simply on the general provisions of WHS legislation (in that case OHSA 1983 s 15 was still in force): … in order to fall within s 54 the alleged discriminat[or] has to demonstrate that its conduct has occurred pursuant to an actual requirement of an Act and that it was necessary for it to pursue such course of conduct. It may be difficult for a plaintiff such as the present one, to establish these matters where there are but general provisions of legislation such as s 15 of the Occupational Health & Safety Act, (a provision dealing with an employer’s responsibility to ensure health safety and welfare of their employees). [emphasis added]

12.41 A decision that seems to depart somewhat from the desired approach, however, is HJ Heinz Co Aust Ltd v Turner (1998) 81 IR 421. In that case Mr Turner had been working for some time on ‘restricted duties’ due to previous workplace injuries. Heinz had a general policy that it would not offer overtime work to anyone on restricted duties, in part because such work could impair the rehabilitation process. [page 592]

There was also evidence that those performing overtime work were required to be available to undertake a wide range of duties. Mr Turner complained of discrimination contrary to a former Victorian Act, the Equal Opportunity Act 1984 (Vic). He said that he was denied a benefit open to others in the workplace — the opportunity to work overtime — and that this denial was on the basis of his ‘impairment’, and thus unlawful. The company responded that its decision not to offer overtime work to Mr Turner was based on safety concerns. It was concerned that a resumption of overtime work would be detrimental to his rehabilitation from previous injuries. They claimed the benefit of the general exemption32 under s 21(4)(d) of the Act: This section does not apply to … (d) discrimination by an employer … which is authorized or required by or under any law of the Commonwealth or the State of Victoria. …

The company claimed that due to both its common law duty of care, and the specific statutory duty it had under the former Occupational Health and Safety Act 1985 (Vic), it was ‘authorised’ to discriminate. The Court of Appeal agreed that the company’s actions had been lawful. It accepted that a policy formulated in response to common law duties of care and statutory obligation under a WHS Act will amount to a justifiable exception under the Act. It rejected a narrower view adopted by the tribunal at an earlier stage of proceedings — that legitimate action under s 21(4)(d) had to be specifically mandated by a provision of safety legislation: at 428. 12.42 However, with respect, it may be queried whether the width of the remarks made by the court in coming to its decision was entirely justified. Winneke P, for example, commented (at 430) that: Where an employer has introduced, pursuant to obligations imposed upon it by the law of Victoria, a regime of work practices appropriately designed to secure, inter alia, the health and safety of a category of employee, it must, in my view, be

authorized by that law to implement that regime without concern as to whether such implementation is operating discriminatorily or not. [emphasis added]

In an even more broadly framed comment, Callaway J said (at 435): If a policy in relation to a class is so authorized, it matters not that it may operate in a discriminatory fashion against an individual who is a member of the class. [emphasis added]

[page 593] Perhaps the better view would be that an ‘appropriate’ policy would cover the general case, but contain some exceptions where it could be shown that the policy was discriminatory for no valid reason. In this case, for example, Mr Turner was given an opportunity by the WHS officer to provide evidence that his working overtime would not impair his rehabilitation process, but neither the doctor nor the ‘rehabilitation provider’ could provide evidence to this effect: at [2]–[3]. There was evidence, then, that the company had attempted to consider Mr Turner’s situation on an individual basis, and that if an expression of principle which allowed for individual exceptions had been in place the company would still have been not found liable.33 12.43 Other decisions raise questions as to where the appropriate balance lies in this area. The majority of the High Court in the HIV Soldier case agreed with the Federal Court findings that the commissioner at the lower level had adopted far too restrictive a view of the DDA s 15. Section 15(4) made discrimination on the basis of a disability lawful if founded on the ‘inherent requirements of the particular employment’. The majority of the court effectively held that the inherent requirements of the position of a soldier meant that it was

reasonable for the Commonwealth to dismiss a soldier found to be HIV-positive. The case repays close reading, however, particularly the judgment of McHugh J. He would have remitted the case back to the commission because he did not think the commissioner had made sufficiently clear findings about the precise requirements of the position that the complainant was being appointed to. In addition, his Honour would have required further evidence concerning whether any danger to safety could have been overcome by the provision of appropriate ‘services and facilities’ by the Commonwealth which did not impose unjustifiable hardship. 12.44 The decision of the High Court in Qantas Airways Ltd v Christie (1998) 152 ALR 365 further illustrates the difficulty of decisions in this area. Mr Christie was dismissed from his employment as a pilot with Qantas upon his reaching the age of 60. The then Industrial Relations Act 1988 (Cth) s 170DF(1) prohibited discrimination on the basis of age, but contained an exception relating to the ‘inherent requirements of the particular position’: s 170DF(2). Qantas claimed that one of the inherent requirements of the position of international pilot was being under the age of 60, as the majority of countries in which Qantas operated prohibited pilots over the age of 60 from entering their airspace. The Full Court of the Federal Court had distinguished between ‘inherent’ and ‘operational’ requirements and found that it was not an ‘inherent’ requirement of the position of pilot to be able to fly to the countries that barred 60-year-old pilots. The High Court by majority (Brennan CJ, McHugh and Gummow JJ) disagreed, finding that the [page 594]

age requirement was an ‘inherent requirement’ of the position. Mr Christie could not participate in the rostering process common to other pilots in his situation, because he could not be rostered to fly to particular destinations. The decision effectively supports the approach of the High Court in the later HIV Soldier case, by allowing the words ‘inherent requirements’ to cover a wide range of circumstances which are encountered in carrying out a particular job. 12.45 In J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022, the Fair Work Australia Full Bench ruled that the ‘inherent requirements’ of a position were those which applied to the position before any adjustments for an employee’s disability were made. Mr Button, they held, was unable to carry out the ‘inherent requirements’ of a position that involved lifting heavy weights. In Lavery v Commissioner of NSW Fire Brigades (see 12.34), the applicant, a firefighter who was blind in one eye, had been refused promotion to higher positions on the basis of the Fire Service’s view that people in those positions had to be able to operate fire trucks, which it claimed Mr Lavery could not safely do. The Fire Service had to rely on the ‘general’ exemption in s 54, claiming that this exemption required it to deny Mr Lavery promotion in order that it could comply with OHS legislation. The tribunal pointed out the difficulties involved in invoking general safety requirements using s 54, previously noted at 12.38 and 12.40. They said, for example (at [80]–[81]): [I]n order for the respondent to successfully rely upon the ‘protective cloak’ provided by s 54 it seems necessary to establish that the requirements of the other Act are mandatory and specific, and permitted no means of compliance except acting in a manner that would otherwise constitute unlawful discrimination. Whether particular conduct attracts the ‘protective cloak’ of s 54 appears to be a mixed question of fact and law; the construction of the ‘requirements of the other Act’ is a question of law, and whether the respondent was obliged to act as he/she did in order to comply with the requirements of the other Act is a question of fact. In this case the legislative provisions upon which the respondent seeks to rely in order to attract the ‘protective cloak’ of section 54(1)(a) are mandatory, but not specific. This lack of specificity does not, of itself, render it legally impossible for the

respondent to rely upon the ‘protective cloak’, because s 54(1(a) simply refers to it being ‘necessary’ to comply with a requirement of another Act. It appears that the need for specificity was highlighted by McHugh J [in Waters] when describing the operation of the former Victorian equivalent to s 54 because it will usually be practically impossible for a respondent to argue that his/her conduct, which would otherwise constitute unlawful discrimination, was rendered lawful because it was ‘a requirement’ for him/her to act as he/she did in order to comply with a general, as opposed to a specific, obligation cast upon him/her by another statute. The comments by Dawson and Toohey JJ in Waters amplify the observations made by McHugh J in that case. If a respondent has a discretion or choice concerning the manner in which he/she complies with a statutory obligation then it cannot be said that the particular obligation is both mandatory and specific.

[page 595] The tribunal also pointed out (at [87]) the conceptual problems involved in determining in civil proceedings whether a person in some hypothetical circumstances might commit a breach of a criminal provision, especially where the criminal provision is very broadly worded. In the circumstances it found that the Fire Service had not satisfied the onus that it bore to demonstrate that allowing Mr Lavery equal access to opportunities for training and promotion would have led to a breach of the Occupational Health and Safety Act 2000 (NSW) (OHSA 2000).34 12.46 The Appeal Panel of the Equal Opportunity Division (EOD) of the ADT dealt with this issue in Cargill Australia Ltd v Higginson [2002] NSWADTAP 20. Mr Higginson was disabled due to a weakness in his knee that prevented him from carrying out the full range of duties in his work. His employer refused to allow him to return to work between September 1998 and May 1999. After being reinstated he sued under the ADA for lost wages, on the basis of disability discrimination. There was no doubt the decision had been made on the basis of his disability. The employer, however, claimed that it was justifiable under s 54, relying on OHSA 1983 s 15. In particular, the company claimed that even though there was only a small chance that Mr

Higginson would suffer a further injury if he returned to work — in his situation this would only occur if he slipped, which he had never previously done — nevertheless the strict duty of care under the Act meant that it had to avoid even this slight chance. The Appeal Panel referred to the decisions in Clinch and David Jones (see 12.40): at [41]–[42]. It commented that the OHS Act clearly did not oblige an employer to refuse to employ someone who is more susceptible to injury than others: at [44]. Employers will not be liable for injuries that are ‘speculative’ or the chances of which are ‘remote’: at [46]. It referred to a number of cases which indicate that any assessment of risk must be made by taking into account the specific circumstances of the particular employee, not by following a general blanket policy: at [55]. The panel concluded (at [59]–[62]): Based on the analysis set out above, we have come to the following conclusions. Section 15 of the OH&S Act imposes a mandatory requirement on Cargill to ensure the health, safety and welfare at work of all their employees. The fact that s 15 is expressed in general terms makes it difficult to determine exactly what Cargill is required to do to comply with this provision. While the focus of s 15 is on an employer’s obligations in terms of the system and method of work, the way in which work is undertaken, and the training provided, there may be situations where an employer is justified in refusing to allow a person to work, either in a particular job or at all, because to do so would be likely to constitute a breach of s 15 of the OH&S Act.

[page 596] In these cases all the relevant circumstances must be taken into account including: whether the person is able to perform the genuine physical requirements inherent in a particular position (this factor is sometimes expressed as being currently fit for work); whether the person is at any greater risk of injury or deterioration than other employees without the same or similar disability as the person (when considering this matter the person’s medical and work history is relevant, including whether the person has suffered work-related injuries in the past); whether the employer has any options, other than refusing to allow the person to work, which would minimise or eliminate the risk of injury or deterioration; and the consequences for the person and/or other employees if the person is injured or

if his or her health deteriorates. In this case Mr Higginson was fit for work and able to perform the inherent requirements of the job despite the restrictions imposed by Dr Richardson. Mr Higginson had not slipped over in 20 years of working with Cargill. There was no more likelihood of Mr Higginson re-injuring himself by slipping over, than for any of Cargill’s other employees. [emphasis added]

12.47 The fact that the consequences of a fall would be graver for Mr Higginson than for other employees, was regarded by the tribunal as not sufficient to disentitle him from continuing to work. Presumably, in a prosecution under, for example, current WHSA 2011 s 19, Cargill could claim in its defence that it was not ‘reasonably practicable’ to take any other precautions in Mr Higginson’s case than the precautions they took generally to avoid slipping by other employees. The result in a civil negligence suit would be more difficult to predict. Perhaps if Cargill strongly advised Mr Higginson not to work but he continued to do so, it could claim that any injury subsequently suffered was partly a result of his own contributory negligence. In any event it seems doubtful whether the fact that a certain obligation may arise in a civil suit is sufficient to raise the defence under s 54, which refers not to the requirements of the ‘common law’ but specifically to requirements imposed by statute.35 12.48 In Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217, a defence offered for demoting a worker who did not have sufficient English literacy skills was that under ADA s 54, it was ‘necessary’ to do so in order to comply with the former OHSA 2000. The tribunal rejected the argument, as the ‘necessity’ of the demotion had not been established; other options were available to deal with the problem, stating (at [78]): Conclusion. We have not accepted Mr Coates’ evidence that if Mr Tanevski remained in his position he could put himself and others at risk. Although we agree that, in general, a high level of literacy is likely to decrease risks to safety, it was not

[page 597] necessary to remove Mr Tanevski from his position in order to comply with s 8(1) of the Occupational Health and Safety Act 2000. Fluor had another practical, low cost option, namely training Mr Tanevski and accommodating his literacy level for approximately 12 to 15 months until he retired. Given that finding, the defence under s 54 has not been made out.

12.49 Courts do not look very kindly on cases where an employer attempts to use ‘safety’ concerns to justify discriminatory treatment of a disabled employee, in situations where the real reasons are not related to safety. In Daghlian v Australian Postal Corporation [2003] FCA 759, the decision to refuse to allow an Australia Post employee to use a stool, while alleged to have been made partly on safety grounds, was actually made because of a management decision concerning the ‘aesthetics’ of the counter area. Because the particular employee, due to a disability, required a stool, there had been unjustified discrimination by refusing to provide one. Butcher v Commissioner of Police, New South Wales [2010] NSWADT 169 also illustrates many of the above principles. Mr Butcher suffered from diabetes and had been appointed as a probationary police constable. It was shown that at one stage he had not been managing his condition properly. However, he later satisfied the requirements set out by a medical officer, yet was still denied confirmation. He succeeded in a claim that he had been the subject of unlawful direct discrimination. The tribunal found that one of the police senior medical officers had effectively been taking a fixed view that a person with diabetes was not suitable for appointment. Mr Butcher had, however, demonstrated that he was capable of meeting the ‘inherent requirements’ of the position if his disease was managed, and had proven that he was able to manage it well. Hence, the defences under ss 49D(4) and 54 were not made out. In Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176 at [102] an applicant for a community relations job was refused

appointment (after having initially been given a preliminary offer) when a medical examination revealed a prior knee injury and obesity which would have made it impossible for her to move freely around rugged ground where customers needed to be visited: The site visits required considerable walking across uneven surfaces such as slopes, construction sites, national parks, bushland and unpaved areas. In considering whether there was a causal relationship between her disabilities and Ms Duncan’s being unable to carry out the inherent requirements of the employment, the Tribunal has taken into account Dr Lee’s report of 1 June 2010 and also notes the comment of Dr Lee to Mr Papworth which was in the following terms: ‘If that is the case [that this field work or on-site work is essential to the position] then I have to say to you that there is a very high risk of injury including an aggravation of her existing conditions. There is high risk of a workers compensation injury. There is a very high risk that she will have problems coping with the physical demands of the site work in my opinion.’

12.50 A situation that has caused some difficulty over the years in this area is the appropriate analysis of anti-social or dangerous behaviour arising from a mental disability. The problem stems from the difficulty in some situations of defining what amounts [page 598] to a mental disability. If, as in some cases, the disability is defined in terms of the behaviour of the person, then the unusual result would be that someone who behaves in a way which is dangerous to themselves and to others — if this behaviour is related to a mental disability — is prima facie discriminated against if there is a refusal to employ them. 12.51 The High Court was confronted with a situation of this nature in Purvis v New South Wales (Dept of Education and Training) [2003] HCA 62 (Purvis). The case concerned discrimination in the area of provision of education, but has substantial implications for the employment area. In brief, the case involved a student who

had been excluded from a state school due to his behaviour; he had suffered brain damage as an infant, which led to him assaulting other students and teachers. He claimed that his removal from the school was direct discrimination under the Commonwealth DDA, as it was on the basis of his behaviour. Therefore, he said, he was being discriminated against on the basis of his disability. One of the complicating factors in the case was that, while DDA s 22(4) allowed a defence of ‘unjustifiable hardship’ to be raised by a school in cases where a pupil had been refused admission, it did not cover cases where a pupil was removed after admission.36 The High Court effectively rejected the claim. The court found that the legislation did not support the interpretation argued for by the plaintiff, and that it was a legitimate decision of the principal of the school to remove the plaintiff on the basis of his behaviour towards others, especially given the duty owed by the school to those people in relation to their health and safety. Gleeson CJ noted (at [14]): Even though functional disorders may constitute a disability, and disturbed behaviour may be an aspect of a disability, it is not contrary to the scheme and objects of the Act to permit a decision-maker to identify a threat to the safety of other persons for whose welfare the decision-maker is responsible, resulting from the conduct of a person suffering from a disorder, as the basis of a decision.

Gummow, Hayne and Heydon JJ agreed that the ‘circumstances’ which were to be compared when considering the alleged discrimination included the fact of the student’s violence towards others: at [225]. The relevant comparison was between a student who did not engage in this behaviour and one who did. When this comparison was made it could be seen that the principal’s decision had not been discriminatory. 12.52 In Y v Human Rights & Equal Opportunity Commission [2004] FCA 184, Purvis was applied in the employment context. Y had been denied employment at Australia

[page 599] Post due to a series of threatening phone calls he had made to employees, which were claimed to result from a mental disability. Finkelstein J in the Federal Court had no hesitation in concluding that, following Purvis, it was not discriminatory for Australia Post to refuse to employ him on the basis of his behaviour. In Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 (Forbes), the Full Court of the Federal Court considered the application of Purvis in an employment situation, and confirmed that before disability discrimination can be found it must be established that the treatment afforded to the worker was different to the treatment that would have been afforded to a worker without a disability. In Forbes, decisions that had been made about the treatment of the officer concerned were not shown to be based on her disability, nor was it shown that she had been treated differently than others in similar circumstances would have been treated. 12.53 In Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664, an employee had been engaged in a range of inappropriate behaviour — ‘poor interpersonal relations, periodic alcohol abuse and periodic absences from the workplace, some serious neglect of duties and declining work performance’: at [100]. However, it had been acknowledged that this behaviour was related to conditions of ADD and depression of which the employer had been made aware. At the time, the employee had been explicitly told that he was ‘on probation’ and was being given a chance to prove that he could change this behaviour. However, he was subsequently fired even though he had not breached the agreed terms of his ‘probation’. The federal magistrate found that this final action amounted to discrimination on the basis of his disability. 12.54 In Varas v Fairfield City Council [2009] FCA 689, Ms Varas was dismissed from a position at the Fairfield Library for

inappropriate behaviour. At one stage in the library’s extended dealings with Ms Varas, it submitted a report to the council which diagnosed her as having a psychological condition of ‘Histrionic Personality Disorder’. She then claimed that she had been discriminated against, because she had been dismissed on the basis of this ‘imputed’ psychological condition. Graham J in the Federal Court disagreed, finding that her dismissal was on the basis of her behaviour, not her condition, and that another staff member who had behaved similarly would also have been dismissed. His Honour stated (at [89]): The circumstance that gave rise to the council’s treatment, by way of dismissal, of the appellant, was her propensity to engage in serious acts of discourtesy, rudeness and intimidating and provocative behaviour towards other staff members and members of the public, including her swearing, in public areas of the libraries in which she worked. In her case, that propensity was thought by the Council to have resulted from a disorder; but such a propensity could also exist in other library staff without any disorder. What, for her, may have been thought to have been disturbed behaviour, might, for other library staff have been bad behaviour. Another library staff member ‘without the disability’ would be another library staff member without disturbed behaviour resulting from a disorder or perceived disorder, not another library staff member who did not misbehave or use inappropriate language in public areas within the relevant library. There are library staff members who are not thought to have any disorder and who are not disturbed, who behave in an

[page 600] inappropriate manner towards other staff members and members of the public and who use inappropriate language to other staff members and in general conversation in public areas in the libraries in which they work. If their conduct persisted they would probably be warned and if it continued they would probably be dismissed in less time than elapsed before the appellant was dismissed in this case, especially if they refused to consult with a medical practitioner to whom they had reasonably been referred for reliable assessment.

In Flanagan v Murdoch Community Services Inc [2010] FCA 647, a claim of disability discrimination was rejected where, once again, the disciplinary process that had been applied to an employee accused of careless driving was found not to have been any

different from that which would have been applied to an employee who was not disabled. 12.55 It is often difficult to make a decision in cases of this nature, especially where the disability is ‘inextricably linked’ with particular behaviour of some kind. In Lynch v Grafton Sawmilling [2009] NSWADT 102, a worker was dismissed from his employment because he had suffered a work-related knee injury and was ‘threatening’ to make a workers’ compensation claim — an action that the firm wanted to resist, as it would lead to an increase in its insurance premiums. The tribunal found that there had been direct disability discrimination, as without the knee injury there would have been no possibility of the claim. The tribunal stated (at 58): The Tribunal is satisfied that the circumstances of the injury to the knee, which occurred at work and permitted a Worker’s Compensation claim are so inextricably linked so as to conclude that the termination of the applicant’s employment was on the ground of his disability. Without first suffering from a disability, the applicant could not have made a Worker’s Compensation claim. The claim would not have been available to him, unless he had first sustained an injury. Thus, the real reason or the true basis of the termination was his disability.

With respect, there may be other ways of viewing this. It could be argued that a person should not be dismissed because of a possible compensation claim; however, it seems odd to say that the dismissal was on the ground of the disability rather than because of the threat to make a claim.37 [page 601] 12.56 Cook v Oberon City Council [2010] FMCA 624 is an example of a case where the disability was found not to be the issue. Mr Cook applied for a plant operator’s position at the council. In his interview he indicated that he had no medical problems that would prevent him doing the job. However, he had in fact filed an application for workers’ compensation in relation

to injury to his knees in a previous position with State Forests (NSW), and documents filed in that claim revealed allegedly serious impairment of his ability to work due to the knee injury. The day after starting work he handed over a number of these documents, in a pile of other papers, to an officer of the council and he was then effectively sacked on the spot. He claimed that he had been dismissed because of his injury, and council’s fear that it would be liable to pay compensation based on his previous injuries. After an extensive review of the evidence, the federal magistrate dismissed the claim of disability discrimination, holding that while proper dismissal procedures may not have been followed, on the discrimination issue the evidence all pointed to the fact that the reason for his dismissal was his dishonesty concerning his medical history, not his disability as such. The magistrate said (at [229]): In light of all the evidence as it ultimately survived cross-examination Mr Cook’s employment was terminated because of what was perceived to be his failure to tell the Council of what was seen to be a serious injury to his knees and how this would impact on his capacity to do the job. The fact that the extent of his injury was exaggerated was not known to the Council officers at the relevant time.

WHS requirements and ‘indirect’ discrimination 12.57 One of the most difficult issues to resolve in this area is that of ‘indirect’ discrimination. That is, if a requirement imposed for the purposes of safety impacts more onerously on one group of people than on another, might that amount to impermissible discrimination? Commonwealth v Human Rights & Equal Opportunity Commission (1993) 119 ALR 133; (1993) 46 FCR 191, Wilcox J’s judgment (at [27]–[28]) contains an illustration of the way that ‘direct’ and ‘indirect’ discrimination operate in this area: [Suppose there was a] hypothetical employer who wished to exclude women employees and gave the reason that they could not lift heavy weights. Could the

employer escape the reach of s 5(1) [SDA — the ‘direct discrimination’ provision] by adopting a policy of employing, not men as such, but people who could lift 40 kilos; the employer knowing that most, but not all, men — and few, if any, women — could pass this test? In order to avoid … ‘fatally frustrat[ing] the purposes of the Act’ should the comparison be, not with males, simpliciter, but with persons having characteristics that generally appertain, or are imputed to, males; that is, persons having greater physical strength?

[page 602] But for the presence of s 5(2), I would answer the last question affirmatively. Otherwise it would be easy for a person to avoid the operation of the section, by discriminating indirectly rather than directly. However, s 5(2) [the ‘indirect discrimination’ provision] does exist and has an important role to play. It would cover my hypothetical case. The employer would be requiring the prospective female employee to comply with a requirement with which she is not able to comply (para (c)), but with which a substantially higher proportion of the opposite sex (men) do comply (para (a)). Whether or not the requirement was discriminatory would depend on whether or not it was reasonable in the circumstances of the case (para (b)); this being an objective matter requiring a balancing of the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced for the requirement on the other: see Secretary, Department of Foreign Affairs and Trade v Styles (1989) 25 FCR 251 at 263. This provides a sensible result. [emphasis added]

12.58 An example of a case involving these issues is Morris v Warman International Ltd (Industrial Relations Court of Aust, Judicial Registrar Tomlinson, No 513/96, 11 October 1996, unreported). A worker who had lost his sight in one eye some 40 years previously was required by his employers to wear safety glasses. He refused on the basis that, due to his disability, the glasses were extremely uncomfortable and possibly dangerous to the sight of his remaining eye. The company threatened to dismiss him unless he complied with the requirement to wear safety glasses, and finally carried out its threat. Mr Morris complained to the New South Wales AntiDiscrimination Board of the company’s alleged breach of ADA ss 49B and 49D. Presumably the complaint would have been, in the terms of s 49B(1)(b), that the company had: … require[d] the aggrieved person to comply with a requirement or condition with

which a substantially higher proportion of persons who do not have that disability … comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

That is, Mr Morris would argue that while people with both eyes intact could comply with the requirement to wear safety glasses, on medical grounds he ‘could not’ comply with the requirement, and that the requirement was not ‘reasonable’ in the circumstances. In effect, it was a claim of ‘indirect’ discrimination. 12.59 In its defence, the company relied on the provisions of ADA s 54, and the requirements of the OHSA 1983. In addition, it relied on the specific provisions of the Foundry Regulations 1954 (NSW) reg 12(3), which stated:38 (3) Suitable goggles shall be provided for the use of all employees whose eyes are exposed to risk of injury by molten metal, flying chips or radiation.

[page 603] In the end, the claim that was heard by the Industrial Court was not an action under ADA, but an action under the Industrial Relations Act 1988 (Cth) for unfair dismissal. However, the approach adopted by the judicial registrar suggests that which would be taken on the issue of discrimination. Effectively, the court found that the company had applied an inflexible rule concerning safety glasses that did not adequately take into account the specific disability of the worker. In particular, the company should have arranged for an expert medical opinion as to whether or not the refusal to wear the safety goggles was reasonable or not.39 12.60 The issue of indirect discrimination has also arisen in countries other than Australia in the context of racial discrimination. One question that has been considered is whether

Sikhs should be required to wear hard hats on construction sites, as, in many cases, Sikhs are required by their religion to wear turbans. In the Canadian case of Bhinder v Canadian National Railway Co [1985] 2 SCR 561; (1985) 23 DLR (4th) 481, such a requirement was upheld as a ‘bona fide occupational requirement’. In the United Kingdom, the courts have upheld a rule, on the basis of health requirements, forbidding persons who work in a chocolate factory to wear beards, even though the rule was indirectly discriminatory against Sikhs, who do not usually shave.40 12.61 In New South Wales, as noted above at 12.57, the question would be whether under ADA s 49B(1)(b), for example, the requirement was ‘reasonable having regard to the circumstances of the case’. In Waters v Public Transport Corp (1991) 173 CLR 349, Dawson and Toohey JJ commented that in a case of indirect discrimination a relevant factor when judging ‘reasonableness’ would be ‘the observance of health and safety requirements’. Similarly, the Human Rights and Equal Opportunity Commission referred to this factor in Finance Sector Union v Commonwealth Bank of Australia [1997] HREOCA 12 when the President, Sir Ronald Wilson, said: … all the relevant factors and circumstances must be weighed including factors favouring the respondent. These may, depending on the context, include financial considerations, alternative approaches, industrial relations, commercial competitors, occupational health and safety requirements, efficiency and the like. [at section 8.3, point (5); emphasis added]

In Francey v Hilton Hotels of Australia Ltd [1997] HREOCA 56 it was held to amount to indirect discrimination to allow environmental tobacco smoke in a nightclub where an asthma sufferer was badly affected and thus denied access. This may have interesting implications for workplaces in which passive smoking is an issue.

[page 604] 12.62 Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217 is an example of a successful claim based on ‘indirect discrimination’. Mr Tanevski was a 60-year-old rail maintenance supervisor from Macedonia with poor English skills. A new supervisor decided that due to Mr Tanevski’s low level of literacy he could not adequately fill in safety reports, and hence should be ‘demoted’; that is, removed from a supervisory role and transferred to another area. The discrimination claim was made on the basis of indirect racial discrimination under ADA s 8. After a lengthy consideration the tribunal found that indirect race discrimination had been established. Four elements that needed to be shown in such a claim were mentioned (at [55]): that (i) there was a requirement to comply with a condition; (ii) the plaintiff was unable to comply with this condition; (iii) a higher proportion of people who were not of his race could comply; and (iv) the requirement was not reasonable. 12.63 In this case Fluor had imposed a literacy requirement — the ability to read and write English in order to compile safety reports — and Mr Tanevski was unable to comply with this condition. It was held that the comparison should be with the ‘dominant’ Anglo-Australian group in society, and here it was established that a much higher proportion of Anglo-Australians would be able to comply than of those people born in Macedonia.41 The question was whether this requirement was ‘reasonable’. The tribunal accepted that this test legitimately obliged an employer to take into account WHS considerations; see, for example, at [69]. However, the tribunal noted (at [72]–[73]) that in Mr Tanevski’s particular circumstances a less drastic response was ‘reasonable’. Since he was due to retire in 12–15 months, he could have been given some basic training in the new procedures, and

provided with someone to help him fill in safety reports during that time. 12.64 The question of what is ‘reasonable’ in accommodating an employee’s circumstances was also addressed by the Supreme Court of Canada in Hydro-Québec v Syndicat des Employées de Techniques Professionelles et de Bureau d’Hydro-Québec, Section Local 2000 (SCFP-FTQ) 2008 SCC 43. While the decision is not of course binding in Australia, it is of interest. The worker had regularly been absent for some years due to illness. A number of options had been tried to allow her to continue work but finally she was dismissed. The Quebec Court of Appeal ordered her to be reinstated because they said it had not been shown to be ‘impossible’ for her to do the job. The Supreme Court of Canada said that this was the wrong test; all that the employer had to show was that continuing to accommodate the worker would create ‘undue hardship’. Deschamps J for the court said (at [17]: Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties — or even authorize staff transfers — to ensure that the employee can do his

[page 605] or her work, it must do so to accommodate the employee. Thus, in McGill University Health Centre (Montreal General Hospital) v Syndicat des Employés de l’Hôpital Général de Montréal, 2007 SCC 4 (CanLII), [2007] 1 SCR 161, 2007 SCC 4, the employer had authorized absences that were not provided for in the collective agreement. Likewise, in the case at bar, Hydro Québec tried for a number of years to adjust the complainant’s working conditions: modification of her workstation, part-time work, assignment to a new position, etc. However, in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.

In Chivers v Queensland [2012] QCAT 166 a trainee nurse was

given extended probation because she was unable to work long night shifts due to experiencing severe headaches. The tribunal found that imposition of a blanket requirement to work night shifts had a detrimental impact on Ms Chivers, and that it was not ‘reasonable’ for the state to impose this requirement, as they could have accommodated her situation. Hence indirect discrimination had been established.

Direct discrimination based on danger to reproductive health 12.65 One of the most difficult issues that have arisen in recent years on the boundary between WHS law and discrimination law is the situation where certain chemicals are present in the workplace that can pose a significant danger to a woman’s reproductive health, but which have a lesser impact on men. A number of chemicals, most prominently lead, are known to pose a danger to the unborn foetus if present in the mother’s bloodstream. Should an employer be able — or be required — to exclude women of childbearing age from jobs in which they will be exposed to these risks and hence endanger their future children? The issue arose in the United Kingdom in Paige v Freight Hire (Tank Haulage) Ltd [1981] 1 All ER 394 (Paige). Ms Paige had been employed by the defendants as a casual truck driver, but had been told that she could not drive loads containing a certain chemical42 as it had been shown to have ‘embryo-toxic’ effects. The court found that there had been prima facie discrimination, as the decision was based on her gender and was thus in contravention of the Sex Discrimination Act 1975 (UK). However, the case was resolved under s 51(1) of the Act, which specifically exempted from the provisions of the Act ‘an act done by a person if it was necessary for him to do it in order to comply with a requirement … of an Act passed before this Act’.43 The

relevant Act was the Health and Safety at Work etc Act 1974 (UK), and [page 606] the general duties provision was seen to be the requirement that had to be complied with.44 The court did not impose a high standard of ‘necessity’. While the complainant argued that other measures could perhaps have been found short of preventing her from driving the truck, the court took the view that, on the information available to the employer, it was a reasonable course of action. They were no doubt influenced by the fact that the firm was willing to allow the complainant to drive other routes but she refused to do so.45 The European Union has issued a specific directive allowing differential treatment where necessary to protect pregnant women and women who are breastfeeding: see the Council Directive (EEC) 92/85.46 12.66 The issue has also been under consideration for some time in the United States.47 A landmark decision of the United States Supreme Court, United Autoworkers v Johnson Controls 499 US 187 (1991), found that a policy of excluding women of childbearing age from work in a battery plant involving lead, was directly discriminatory. Under the relevant United States law the only defence against a charge of ‘direct discrimination’ was that the requirement imposed be a ‘bona fide occupational qualification’ for the job. The Supreme Court ruled that a lack of fertility on the part of employees was not a bona fide qualification for making batteries, and hence Johnson’s policy was unlawful.48 The decision was — and is — a controversial one, of course, all the more so because it is inextricably linked to issues concerning women’s freedom of choice and the abortion debate.

12.67 In Australia similar issues have arisen in relation to the lead processing industry, in particular involving the major employer at Port Pirie, Broken Hill Associated Smelters (BHAS). For a number of years BHAS obtained exemptions under both the Commonwealth SDA and the Equal Opportunity Act 1984 (SA), to enable the continued exclusion of women workers from jobs which involve a high exposure to lead. [page 607] The issues were litigated before the Full Court of the Federal Court in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301.49 The facts in that case were that the National Occupational Health and Safety Commission (NOHSC), also known as WorkSafe Australia at that time, had been preparing a draft standard and code of practice for the lead industry. Mount Isa Mines, a lead producer, had been part of the consultation process specified by the National Occupational Health and Safety Commission Act 1985 (Cth) s 38. Draft guidelines produced by Worksafe specified that ‘pregnancy’ and ‘breastfeeding’ were conditions that should automatically exclude a person from working in a lead-risk job. However, in relation to the employment of women generally, the guidelines said (at 12(d)): We are advised by HREOC that employers wishing to exclude women, other than those pregnant or breastfeeding, from lead-risk jobs will need to seek an exemption from the relevant Sex Discrimination legislation.

12.68 Mount Isa Mines alleged that WorkSafe had unduly abdicated its responsibility to consider WHS issues to the Human Rights and Equal Opportunity Commission (HREOC) in drawing up the guidelines. It had not given any guidance to employers as to whether women who were not pregnant or breastfeeding might

be at risk from lead-risk jobs, and whether those jobs might affect their reproductive health generally. The Full Court ruled that a decision to exclude women from the lead industry on the basis that their reproductive capacity might be affected would be directly (rather than indirectly) discriminatory. As a result, in a way similar to the finding of the United States Supreme Court in the Johnson Controls case referred to above, the discrimination could not be justified even if it was otherwise ‘reasonable’. See the remarks of Lockhart J (at 46 FCR 328): Thus discrimination falling within s 5(1) is prohibited by s 14 notwithstanding that the discrimination may be ‘reasonable’.

Nevertheless, it was the duty of the NOHSC to set out guidelines that it saw as scientifically valid, and then to leave it to individual employers to seek exemptions from the operation of the SDA: see SDA s 44. The effect of the court’s decision appears to be that the NOHSC should have clearly outlined the risks to reproductive health for women of childbearing age, followed by making recommendations. It should then, however, have drawn employers’ attention to the need to apply for exemptions if the recommendations were to be followed. 12.69 In fact, this seems to be the course that has been followed. The NOHSC National Standard for the Control of Inorganic Lead at Work, NOHCS:1012, 1994 (Standard) and National Code of Practice for the Control and Safe Use of Inorganic Lead at Work, [page 608] NOHSC:2015, 1994 (Code of Practice) were released in October 1994. The Preface to the Standard50 refers to the Federal Court decision and comments that following the decision: Members agreed on an approach with differentiation based on the different health

effects and achievable blood lead levels for removal from and return to what are defined as ‘lead-risk jobs’. Members also agreed on an approach for determining whether a person should work in a lead-risk job … Employers who exclude women from lead-risk jobs in accordance with the national standard, may need to seek exemption from relevant sex discrimination legislation.

12.70 The Standard specifically lists ‘pregnancy’ and ‘breastfeeding’ as criteria for exclusion from working in a lead-risk job: s 14(1)(b), (c). Section 14(3) continues by stating that when considering whether a person should work in a lead-risk job, the employer should take into account: (b) relevant factors identified by reference to health effects associated with exposure to lead; (c) the removal level, as set out in subsection 15(24), applicable to the person …

Section 15(24) clearly distinguishes between acceptable blood lead levels for three groups: 1. 2. 3.

males and females not of reproductive capacity, and males generally : 2.41 µmol/L; females of reproductive capacity: 0.97 µmol/L; and females who are pregnant or breastfeeding: 0.72 µmol/L.

If biological monitoring reveals exposure at or above these limits, then the employee is to be transferred from the lead-risk job to a non-lead-risk job. Section 15(27) then sets out the circumstances in which the employee may be allowed to return to the lead-risk job. Sections 14.6–14.7 of the Code of Practice also contain information that should be conveyed to employees about the specifically harmful effects of lead on foetal and childhood development.51 12.71 The Work Health and Safety Regulation 2011 (WHSR) deals with the issues in a straightforward way in For example, cl 394 defines ‘lead-risk work’ in a way distinguishes between male and female exposures, and

(NSW) Pt 7.2. which cl 415

requires the removal of an employee from lead-risk work if health monitoring reveals exposure above certain levels — for ‘females not of reproductive capacity and males — 50 µg/dL (2.42 µmol/L)’; for ‘females of reproductive capacity — 20µg/dL (0.97µmol/L)’. However, there is no acknowledgment in the Regulation that an employer who excludes a female employee who is of ‘reproductive capacity’ from lead work at the 0.97 exposure level, but does not exclude a male from work at that level, may be [page 609] breaching the anti-discrimination legislation. It would be interesting to see whether, if the matter was heard in a court today, the approach of the majority in the Mt Isa Mines case (see 12.66) would be followed or not. 12.72 A number of other important issues were discussed in that decision. Lee J, for example, dissented from the majority on the question whether there was sex discrimination, arguing that a decision to exclude women of child-bearing capacity from leadrisk employment would not be discrimination on the basis of sex but on the basis of health. But the majority of the court disagreed with this reasoning. Lockhart J, with whose judgment Black CJ concurred, said (at 326–7): If an employer in the lead industry took the view that it was dangerous to employ a female in the lead industry because of its perception of the level of lead which may affect reproductive capacity by reason of the danger of lead to an unborn foetus or to a baby who is being breast-fed, this may constitute discrimination both on the ground of health and the ground of sex. To put the point another way, it would be the intention or motive of the employer, for the purpose of safeguarding the health of women in the employer’s workforce, that led it to discriminate against women. The presence of intention, motive or purpose relating to health does not necessarily detract from the conclusion that there is discrimination on the ground of sex. I respectfully differ from the primary Judge’s opinion that discrimination on grounds of health would necessarily preclude a finding of discrimination of s 5 of the SD Act. [emphasis added]

His Honour is clearly saying that, while the subjective motive of an employer may be to protect the health of employees, or of their future children, the employer is not permitted to do that in a way that at the same time discriminates. Nor is it open to an employer to discriminate on the basis of some characteristic which is common to all women — and not all men — such as the capacity for child-bearing, and then to argue that it is doing so in ‘circumstances which are materially different’.52 12.73 In Chevron USA, Inc v Echazabal 122 S Ct 2045, 2002 US LEXIS 4202 (2002), the US Supreme Court handed down a decision that concerned similar issues. The court ruled that a company could, under the relevant US legislation, refuse to employ a worker with liver problems, where medical advice was that to employ him in the particular position would endanger his life, though not the health of anyone else. In doing so the court upheld a regulation to that effect made by the US Equal Employment Opportunity Commission, which while not based on a specific provision of the head legislation, was held to be within permissible rule-making power. [page 610]

Sexual harassment 12.74 In conclusion, we consider an area — sexual harassment — where it has been suggested that WHS laws and discrimination laws may interact. The SDA contains a specific prohibition against sexual harassment in Div 2 Pt 3 of the Act. Sexual harassment is defined in s 28A: 28A Meaning of sexual harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. …

The Act then makes provisions to prohibit sexual harassment in various situations, including the following: 28B Employment, partnerships etc (1) It is unlawful for a person to sexually harass: (a) an employee of the person; or (b) a person who is seeking to become an employee of the person. (2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer. …

12.75 While these provisions are very clear, it has recently been suggested that another avenue of protection against sexual harassment may be to make a claim based on the health and safety implications of such behaviour for the workplace. MacDermott has made a detailed argument for this53 and cites Barker v Hobart City Council (TASSC, Slicer J, 6/5/93, unreported) as an example of a common law action.54 In that case a female employee of the council recovered damages in tort for a range [page 611] of actions including assault and false imprisonment, on the basis that the council as employer should have been aware of the

behaviour of its employees and did nothing to stop that behaviour.55 More centrally for the purposes of WHS law, MacDermott notes that: One means by which to fit sexual harassment within the traditional social construction of occupationally-related accidents and illnesses is to highlight the links between harassment and occupational stress.56

Stress and psychological injury, as noted in Chapters 4 and 11, are recognised as compensable workplace injuries. There seems no reason why, if such an injury could be shown to result from unlawful sexual harassment, there should not be common law liability or workers’ compensation recovery.57 An example of this is referred to in the comments of the president of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, in another sexual harassment case, Djokic v Lloyd Sinclair and Central Queensland Meat Export Company (Aust) Pty Ltd (No H94/25, 24 August 1994, unreported): The pain, suffering and humiliation arising from the unlawful conduct has been extreme and warrants the award of substantial damages. At present, the complainant’s health remains severely impaired …

MacDermott provides another example in the Western Australian case of Horne v Press Clough Joint Venture (1994) EOC ¶92-556.58 12.76 The classification of sexual harassment as a WHS issue was also confirmed by the decision of the Australian Industrial Relations Commission in Australian Nurses Federation v Minister Administering the Tasmanian State Service Act (1996) AISHW ¶53212. According to the summary of the case: The Commission found that it had jurisdiction to hear the matter because it considered keeping employees safe from sexual harassment a health and safety issue.59

Hopper v Mt Isa Mines Ltd (1997) EOC ¶92-879 is another such case. There a former apprentice diesel fitter mechanic was awarded

$48,724 damages for the consequences (both psychological and physical in the sense of stress-induced aggravation of existing dermatitis) of sexual harassment by both supervisors and coworkers. [page 612] 12.77 Taking into consideration all of the above, it may be true to say that there is now a developing duty on an employer to provide a ‘harassment-free work environment’.60 SDA s 106 provides: 106 Vicarious liability etc (1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent: (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or (b) an act that is unlawful under Division 3 of Part II; this Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1) (a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

The effect of the section is to make an employer ‘vicariously liable’ for acts of sexual harassment committed by employees, unless the employer can positively show that it took ‘all reasonable steps’ to prevent the occurrence of the behaviour. A case in which an employer was found vicariously liable in this way was Brown v Moore (SC(Qld), White J, 15 July 1996, unreported). In the Horne case (see above at 12.75), in the addition to the employer, union officials were also found liable for failing to act to prevent severe sexual harassment. In Elliott v Nanda

[2001] FCA 418, the Commonwealth Government was found liable in relation to sexual harassment suffered by an employee at the hands of her employer, where the employee was placed in the position by the Commonwealth Employment Service, which had previously received a number of reports concerning allegations of such behaviour that had been made against the employer. 12.78 In fact, the phrase ‘vicarious’ liability is not entirely appropriate here; what we are discussing is not the common law notion but a specific set of rules set up by the statute.61 In New South Wales the relevant provision is ADA s 53: [page 613]

53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

For an analysis of this provision, see the decision in Commissioner of Police v Estate of Russell [2002] NSWCA 272, where Spigelman CJ ruled that the liability of an employer for an employee’s actions under ADA s 53 was a special scheme with its own rules, and that common law ‘vicarious’ liability was not appropriate for the Act. This was especially so as his Honour took

the view that an action for damages under the ADA was not an action in ‘tort’. The other feature of this case, however, was that the court ruled that even though at common law a police officer was not an ‘employee’ of the Commissioner, for the purposes of the ADA an officer would be treated as such. This meant that under s 53 of the Act the Commissioner was liable for actions of racial discrimination committed by police officers unless he could demonstrate under s 53(3) that he took ‘all reasonable steps’ to prevent the acts occurring. For other cases where s 53 liability was imposed on employers who had not acted to prevent the behaviour, see Caton v Richmond Club Ltd [2003] NSWADT 202 (where the employer was held liable for sexual harassment committed by an employee as the tribunal found it was aware of a potential problem and did nothing to stop the behaviour; the tribunal stressed the need for the employer to be ‘pro-active’, not just wait until a formal complaint); Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143 and Dee v Commissioner of Police, NSW Police (No 2) [2004] NSWADT 168. 12.79 What should an employer do to avoid this sort of liability? A minimum level of acceptable response where sexual harassment is reported would obviously involve taking action quickly in relation to any allegations. However, a better approach would be, in tandem with a WHS policy, to have in place a written and clearly publicised — and enforced — sexual harassment policy making it clear that such behaviour is unacceptable. [page 614]

Further Reading M

Christie, ‘Unlawful Termination Employment Law: The Exception

under Federal Based on the

“Inherent Requirements of the Particular Position”’ (2013) 4 Workplace Review 55–70. K Dent, ‘Orders in Court’ (2003) Feb/Mar Employment Review 28–9. R Dubler, ‘Direct Discrimination and a Defence of Reasonable Justification’ (2003) 77 Aust Law Jnl 514–29. P Ey, ‘Employers’ Rights and Responsibilities in Managing Ill or Injured Employees’ (2012) 34(3) Bulletin (Law Society of SA) 16–20. R Hunter, Indirect Discrimination in the Workplace, Federation Press, Sydney, 1992. T Macdermott, ‘The Duty to Provide a Harassment-Free Work Environment’ (1995) 37(4) Jnl of Industrial Relations 495–523. N Rees, S Rice and D Allen Australian Anti-Discrimination Law: Text, Cases and Materials, 2nd ed, Federation Press, Sydney, 2014. K Reid, ‘Equal Opportunity Versus Occupational Safety: An Employer’s Quandary’ (1999) 27 Aust Business Law Review 79–81. S Roberts, ‘The Inequality of Treating Unequals Equally: The Future of Direct Discrimination under the Disability Discrimination Act 1992 (Cth)’ (2005) 45 AIAL Forum 20–38. C Ronalds and E Raper, Discrimination Law and Practice, 4th ed, Federation Press, Sydney, 2012, esp Chs 4 and 11. R Ruskin, ‘Safety Wins Over Impairment Discrimination’ (1999) 5(2) Employment Law Bulletin 9. B Smith, ‘From Wardley to Purvis: How Far Has Australian Anti-discrimination Law Come in 30 Years?’ (2008) 21 Australian Journal of Labour Law 3–29. C Walsh, ‘An Update on Sexual Harassment in the Workplace’ (1999) 5 Employment Law Bulletin 56–60.

C Ziss, ‘Equal Opportunity vs Occupational Health and Safety — Which Law Will Prevail?’ (1999) 51(10) Australian Company Secretary 452–4.

1.

For further material, see A Brooks, Occupational Health and Safety Law in Australia, 4th ed, CCH, North Ryde, 1993, Ch 26.

2. 3.

See the discussion of constitutional power at 1.27 ff. See the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (No 98, 2013) which commenced operation on 1 August 2013.

4.

A separate Part specifically prohibits compulsory retirement from employment on the basis of age: Pt 4E. The decision in University of Wollongong v Metwally (1984) 158 CLR 447 held that the Commonwealth could not, as it attempted to do, retrospectively undo the inconsistency and hence validate the operation of the state’s legislation prior to 1983. However, all the judges of the High Court in that case affirmed the ability of the Commonwealth to provide for the future that the state legislation should be regarded as valid.

5.

6.

7. 8.

9.

10.

11.

For an example, see Dao v Australian Postal Commission (1987) 162 CLR 317, where a complaint that Australia Post’s medical requirements contravened the ADA failed because Australia Post were acting directly under the authority of a Commonwealth Act. See also RDA s 6A, DDA s 13, AgeDA s 12. Of course, there are separate definitions for different types of discrimination under the three different Commonwealth Acts. RDA s 9 differs quite considerably from the definitions in the other Commonwealth Acts and state legislation, possibly because it was one of the first provisions drafted, and also because of the need for the Commonwealth to conform closely to the relevant international convention. On appeal, in Commonwealth v Williams [2002] FCAFC 435, the Full Court of the Federal Court found that the dismissal had been justified based on a provision of the DDA relating to ‘combat duties’. ADA s 4A; DDA s 10. A similar, though not identical provision appears in s 360 of the Fair Work Act 2009 (Cth) governing ‘adverse action’ taken against a worker because of exercise of a workplace right — see discussion of this provision in RailPro Services Pty Ltd v Flavel [2015] FCA 504. Decisions of the courts hold that s 360 requires that the prohibited factor be a ‘substantial and operative’ factor, which may be slightly more difficult to establish than under s 10 DDA s 10 — see Flavel at [86]. For some background on this issue see D Covell and C Refshauge, ‘Discriminatory Safety Practices at BHP’ (1988) 11 Legal Service Bulletin 48–51.

12.

See Covell and Refshauge, note 11 above, p 49.

13.

See the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth), relevant parts of which commenced on 5 August 2009. In Flanagan v Murdoch Community Services Inc [2010] FCA 647 at [41] Gordon J suggested that the provision was introduced to remove doubt following the decision of the High Court in Purvis v New South Wales (Dept of Education and Training) (2003) 217 CLR 92. It is possible the provision may not in fact change the operation of the legislation. However, see the comments in Walker v Victoria [2012] FCAFC 38 at [72] where it was noted that the case related to facts occurring before the ‘reasonable adjustments’ amendments had been made, implying that perhaps the case may have been more arguable if the amendments had been in force.

14.

15. 16.

17.

18.

Inserted by the Anti-Discrimination Amendment (Drug Addiction) Act 2002 (NSW) effective 15 April 2002. The exceptions (under ss 89B and 89C) are complaints of what is called ‘vilification’ under s 20D, s 38T, s 49ZTA or s 49ZXC of the Act, which are criminal offences and must be referred to the Attorney-General for a decision on prosecution. Previously the Equal Opportunity Tribunal heard complaints; it was then replaced by the ADT, established under the Administrative Decisions Tribunal Act 1997 (NSW). The relevant tribunal now is the New South Wales Civil and Administrative Tribunal. Note the insertion into the ADA of s 111A by the Anti-Discrimination Amendment (Offender Compensation) Act 2007 (NSW). The unusual provision specifies that damages which would otherwise be payable to an offender in custody because of discrimination by a state body should not be paid to the offender but instead paid into a Victim’s Compensation Fund.

19. 20.

At the EOT level, Najdovska v Australian Iron & Steel Pty Ltd [1986] EOC ¶92-176. See R Hunter, Indirect Discrimination in the Workplace, Federation Press, Sydney 1992, p 270.

21.

The AHRC was formerly the Humans Rights and Equal Opportunities Commission (HREOC). See the Australian Human Rights Commission Act 1986 (Cth). See Chapter 1 at 1.62, where this case is mentioned.

22. 23. 24.

See, for example, AHRC Act 1986 s 46PS. This report from 2007 from the Australian Safety and Compensation Council (ASCC) can be found in the ‘Publications’ Section at .

25. 26.

See Brooks, note 1 above, at [1121]. Older legislation, the Equal Opportunity Act 1984 (Vic), contained s 21(4)(h), a much more specific exemption provision. See also the immediately previous Victorian legislation, the Equal Opportunity Act 1995 (Vic) s 80(1)(a). The new Act mostly came into operation on 1 August 2011.

27. 28.

See also Gummow and Hayne JJ: at [109]. Section 15(4) of the DDA 1992 has now been replaced by the more detailed provisions of s 21A, which will be discussed below at 12.36.

29.

30.

31. 32. 33.

34.

35.

36.

37.

On appeal in Commissioner of Police v Zraika [2005] NSWADTAP 1, the Appeal Panel did overturn a ruling of the ADT in these proceedings that the employer should have prepared a detailed list of the ‘inherent requirements’ of the position before making its decision not to employ Mr Zraika: see [15] of the Appeal Panel decision. But the panel upheld the other findings of the tribunal and found that this legal error did not affect the validity of the decision that the commissioner had unlawfully discriminated, and had not established the s 49D(4) defence. Although it should be noted that the tribunal went on to say that even if the s 49D(4) defence had been applicable, it would not have availed the employer in the circumstances as a ‘blanket’ policy had been applied which did not take into account the individual circumstances of the employee: at [38]. CCH, North Ryde, looseleaf service, at ¶13-595. The reason why this case is considered here, rather than under the discussion of the more specific provision of s 21(4)(h) above. The decision is discussed in a case note by K Reid, ‘Equal Opportunity Versus Occupational Safety: An Employer’s Quandary’ (1999) 27 Aust Business Law Review 79–81, but with respect in a way which fails to reveal the problems with the decision. For another article on the Heinz case see N Ruskin, ‘Safety Wins Over Impairment Discrimination’ (1999) 5(2) Employment Law Bulletin 9. For further proceedings finalising the amount of economic loss suffered by Mr Lavery, see Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140. In Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268 an appeal to a single judge of the Supreme Court failed. The reference in s 54(1)(d) to the need to comply with ‘an order of any court’ must refer to a specific, pre-existing order rather than to a possible award of damages that might be made in the future. In the same way that, as noted above, the employment exception in the NSW ADT for being ‘unable to carry out the inherent requirements of the employment’ is applicable to ‘hire and fire’ decisions but does not apply to a decision to alter the terms and conditions of employment. Note in Purvis that McHugh and Kirby JJ, who dissented and thought that there was a claim for direct discrimination here, strongly urged that the legislation here should be amended to allow the claim of ‘unjustifiable hardship’ to cover a wider range of circumstances: at [96]. Interestingly, while it is illegal to dismiss someone because they draw attention to a safety issue (see former OHSA 2000 s 23, now WHSA 2011 ss 104–106) and there is a remedy of reinstatement to similar duties where a worker is dismissed because they are ‘not fit for employment’ under Workers Compensation Act 1987 (NSW) s 241, there seems no direct prohibition in the compensation law on dismissing someone because they make a claim for compensation. It may be that this fact lay behind the willingness of the tribunal to provide a remedy here. Note that it seems clear, however, that the Fair Work Act 2009 (Cth) s 340, which prohibits adverse action against a person because they exercise a ‘workplace right’, would govern this situation. Under s 341 ‘workplace right’ includes rights under a ‘workplace law’, defined in s 12 to include rights under a law that ‘regulates the relationships between employers and employees’ [emphasis in original]. A law providing for statutory workers compensation was held to be such a law in Construction, Forestry,

Mining and Electrical Union v Leighton Contractors Pty Ltd (2012) 225 IR 197 at [62]; see also Larné-Jones v Human Synergistics Australia Ltd [2015] FCCA 968 at [94]. 38. 39.

Deemed to be made under the Factories Shops and Industries Act 1962 (NSW). The Industrial Court may also have been influenced by the situation of the worker, who was dismissed at 63 years of age just 18 months short of his planned retirement, at a time when there was a suggestion that his dismissal was part of a program of redundancies rather than ‘really’ on the basis of the safety goggles issue.

40. 41.

In Singh v Rowntree MacKintosh Ltd [1979] ICR 554 and Panesar v Nestle Co Ltd [1980] ICR 144. See [62]–[63] for an interesting discussion of this point.

42. 43.

DMF, ‘dimethylformamide’. See NSW ADA s 54 for a similar provision.

44.

The United Kingdom Act, as mentioned in Chapter 7, was the forerunner of later Australian ‘general duties’ legislation. A E Morris and S M Nott, Working Women and the Law, Routledge, London, 1991, pp 36–40 comment on the Paige case. They note that in 1989 the Sex Discrimination Act 1975 (UK) s 51 was amended to reduce the scope for discrimination to be justified by other legislation. But even in its amended form it allows discrimination where it is ‘necessary for the protection of women as regards pregnancy or maternity’: p 39.

45.

46.

47. 48.

49.

See the discussion in T K Hervey, Justifications for Sex Discrimination in Employment, Butterworths, London, 1993, pp 165–9; and the European Court decision in Johnston v Chief Constable of the Royal Ulster Constabulary [1986] 3 All ER 135. See, for example, E Buss, ‘Getting Beyond Discrimination: A Regulatory Solution to the Problem of Fetal Hazards in the Workplace’ (1986) 95 Yale Law Jnl 577–98. For interesting comments on the court’s judgment and the meaning of ‘occupational qualification’, see R A Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws, Harvard UP, Cambridge, Mass, 1992, pp 309–12. For a summary of the case see C Flanders, ‘Human Rights and Equal Opportunity Commission v Mount Isa Mines’ (1994) 13 U Tas L Rev 429–39.

50. 51.

NOHSC, AGPS, Canberra, 1994, p viii. This standard, while dating back to 1994, still seems to represent the national standard on the area.

52.

See the article by R Dubler noted in the Further Reading list at the end of this chapter, where the Full Court’s decision is criticised, and support given for the approach taken by Davies J at first instance. T MacDermott, ‘The Duty to Provide a Harassment-Free Work Environment’ (1995) 37(4) Journal of Industrial Relations 495–523.

53. 54.

55.

Reported in the Sydney Morning Herald, 12 July 1993. See also S Berns, ‘The Hobart City Council Case: A Tort of Sexual Harassment for Tasmania?’ (1994) 13 U Tas LR 412. It is likely that the action was taken in tort because at the time there was no state anti-discrimination statute.

56.

MacDermott, note 53 above, p 517.

57.

For a case of common law recovery where part of the harassment by fellow employees could probably be characterised as sexual harassment, see the UK House of Lords decision of Waters v Commissioner of Police for the Metropolis [2000] UKHL 50. MacDermott, note 53 above, p 517.

58. 59. 60.

See Occupational Health and Safety News No 174 (1996), p 1. See the comments in Lorelle Dippert v Cliff Luxford and Vrachnas Betabake Pty Ltd (HREOC, R Graycar, No H95/97, 18 July 1996, unreported) at 53.

61.

An interesting case illustrating the difference is Vance v State Rail Authority [2004] FMCA 240, where the statutory s 53 liability was found not to exist but common law vicarious liability was.

[page 615]

13 WORKPLACE SAFETY AND LITIGATION

Aims The aims of this chapter are: to provide an overview of legal issues arising in the process of both civil and criminal litigation that may impact on court proceedings dealing with workplace safety breaches; and to note issues that may arise for those involved with investigation and litigation.

Objectives After completing this chapter, you should: be able to describe the general procedure followed in litigation; and in particular be better equipped to give expert opinion evidence on workplace safety issues in such litigation.

13.1 Litigation, taking a dispute to court, is the logical final step if the law is breached in some way. For a general overview of the law in this area, it is important to know how the court system works in general, and some of the issues that arise specifically in the area of workplace safety cases. This chapter will outline the distinction between civil cases and criminal cases, and examine in a general way the kinds of issues that are important to keep in mind in both types of cases.

Distinction between civil and criminal litigation 13.2 To begin with, there are significant differences between civil and criminal litigation. The difference between civil and criminal law has already previously been noted: see, for example, 1.4 and 7.4. Criminal law is a branch of public law, dealing with actions by a public official on behalf of the community to punish behaviour that the community has decided to deter. Civil law, on the other hand, deals with the enforcement of the rights of individuals against other individuals. [page 616] The result of civil litigation is that a person receives an award from the court — usually an order for damages in the workplace health and safety (WHS) area — reflecting some injury that they personally have suffered. On the other hand, in criminal litigation a public official — for example, a SafeWork NSW Inspector — carries out a prosecution for an offence, the result of which may be an order that the person or company concerned pay a fine to the Crown. The difference between the two types of law is reflected in the difference between the two types of court action.

Public prosecution 13.3 Criminal cases are initiated and prosecuted by a public official of some kind, rather than by private individuals. As discussed in Chapter 6, there is a tort action for breach of statutory duty. However, that is a separate action from a criminal prosecution for breach of a statute. Currently in New South Wales, the Director of Public Prosecutions and his or her officers conduct most criminal proceedings. However, in particular areas of the criminal law other officials may be involved. Breaches of the Work Health and Safety Act 2011 (NSW) (WHSA) are prosecuted by SafeWork NSW (formerly WorkCover) Inspectors.1 In many ways the prosecutor has a similar task to the plaintiff in civil proceedings, but because the action is taken on behalf of the community rather than simply to vindicate private rights, there are a number of restrictions on the way that they can conduct the case. For example, if the prosecutor becomes aware that the defence is not proposing to call a witness who might significantly assist the defence case, there is a duty on the prosecutor to inform the defence of the existence of the witness. We will discuss the role of the prosecutor in more detail at 13.79.

Standard of proof 13.4 The other main difference between a criminal and a civil trial is that the outcome of a criminal trial is potentially much more serious than the outcome of a civil trial. It may, for example, involve the deprivation of the property or the liberty of the defendant (indeed, in previous times, sometimes the defendant’s very life). As a result the court is required to be more clearly satisfied of the defendant’s guilt before the prosecution succeeds. This is the area of ‘standard of proof’. The nature of the criminal standard of proof is expressed by two

rules: the presumption of innocence and the ‘beyond reasonable doubt’ standard. Presumption of innocence 13.5 First, an accused person is presumed to be innocent until proven guilty. There is no presumption or burden placed on an accused simply because they have been arrested and brought to trial. The Crown must satisfy the court that the accused is guilty. [page 617] ‘Beyond reasonable doubt’ 13.6 Second, proof of guilt must reach the standard where the court is satisfied of guilt ‘beyond reasonable doubt’. This is a higher standard than the standard applied in civil cases, where the court is entitled to rule in favour of the plaintiff if satisfied ‘on the balance of probabilities’. In criminal cases, a person cannot be convicted unless the judge or jury are satisfied that there is no reasonable doubt that they are guilty. In the classic judgment in Woolmington v Director of Public Prosecutions [1935] AC 462, Viscount Sankey LC in the House of Lords put it this way in relation to a murder charge (at 481): Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

Denning J (as he then was) described ‘reasonable doubt’ in this way in Miller v Minister of Pensions [1947] 2 All ER 372 at 373–4: Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave

only a remote possibility in his favour which can be dismissed with the sentence ‘of course, it is possible, but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.

13.7 In the context of a prosecution under the WHSA, this means that the formal elements of the offence (for example, under s 19, that the accused is a ‘person conducting a business or undertaking’, or that the incident happened while the worker was ‘at work’) must be proved beyond reasonable doubt. However, it is fairly clear that offences under the Act do not require proof of mens rea (a ‘guilty mind’), and so that element is not one that needs to be shown before a prima facie case arises (this concept is discussed in more detail below at 13.69). The situation in regards to the WHSA seems to be relevantly identical to that under the similarly worded former Victorian legislation, the Occupational Health and Safety Act 1985 (Vic). As Reeve and McCallum sum up the situation (comparing that legislation to the former Occupational Health and Safety Act 2000 (NSW) (OHSA 2000)): Unlike New South Wales, the duty contained in s 21 of the OHS Act (Vic) is qualified by reasonable practicability. Because of this qualification, the duty itself is not absolute; however, the Victorian Court of Appeal has held that liability for breaches of s 21 is absolute nonetheless.2 … Thus in both New South Wales and Victoria,

[page 618] absolute or strict liability offences are created by breaches of the employer duty provision.3

The case cited first in that comment is R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181. In that decision on the Victorian legislation, which imposed an obligation to take care for safety ‘so far as is practicable’, the Victorian Court of Appeal noted (at [24]): Breach of s 21(1) of the 1985 Act did not depend on proof of mens rea. (The position is unchanged under the 2004 Act.) Notwithstanding the practicability qualification,

the liability is properly to be regarded as absolute, since there is no room for a defence of honest and reasonable mistake.1 Unlike the position in Tesco Supermarkets Ltd v Nattrass [1972] AC 153, there is no ‘due diligence’ defence, nor is it a defence to show that the breach was ‘due to the act or default of another person’. 1.

See He Kaw Teh v The Queen (1985) 157 CLR 523 at 590 per Dawson J; Italo Australian Construction Pty Ltd v Parkes (1988) 24 IR 428 at 431; Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432 at 452; Broken Hill Associated Smelters Pty Ltd v Stevenson (1991) 42 IR 130 at 145; R v Gateway Foodmarkets Ltd [1997] 3 All ER 78 at 82 (applying the House of Lords decision in R v Associated Octel Ltd [1996] 4 All ER 846).

Under the OHSA 2000, the accused in a prosecution had the chance to prove a defence — for example, that precautions were not ‘reasonably practicable’. They only needed make out their defence ‘on the balance of probabilities’. However, under the WHSA the fact that ‘reasonably practicable’ precautions existed and were not taken now needs to be shown by the prosecution as an element of the offence concerned, beyond reasonable doubt. That this is the correct interpretation of the legislation is supported not only by the clear wording of the provision, but also by a finding by the High Court to that effect in relation to an almost identically worded provision in Chugg v Pacific Dunlop Pty Ltd (1990) 170 CLR 249. It is also the approach supported by the High Court’s recent discussion of another case decided under the Victorian legislation, Baiada Poultry Pty Ltd v R [2012] HCA 14.4 There the conviction of the company was overturned because the High Court held that the jury had not ruled on the key question whether a suggested precaution that the company could have taken was ‘reasonably practicable’: at [35]. See also the summary of the operation of the current legislation, in comparison to the OHSA 2000, in Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [35]: [page 619] The effect of these amendments5 was to require the prosecution to establish beyond

reasonable doubt that matters alleged to be necessary to ensure the health, safety and welfare of employees were reasonably practicable, as distinct from making that proviso a defence to be established by the defendant on the balance of probabilities.

13.8 The operation of the above principles in prosecutions under the former OHSA 2000 was discussed in Kirk v Industrial Relations Commission (NSW) [2010] HCA 1 (Kirk), discussed in Chapter 7. Given that the High Court suggested that a valid charge under that Act had to specify the ‘specific’ precautions that should have been taken by the accused, it might be suggested that proving that these precautions would have been effective had to be made out ‘beyond reasonable doubt’. But the matter was still unclear, as the High Court did not comment in detail on the issue of the burden of proof. The relevance of the comments in Kirk seems to be diminished, given the new form of the obligation under the WHSA. However, it appears that at least one effect of the Kirk decision was that if the prosecution had alleged certain particulars then those particulars had to be proved beyond reasonable doubt: see Inspector Rowe v Stephensons Cranes Pty Ltd and Soltau [2010] NSWIRComm 68.

Civil litigation Commencing proceedings 13.9 Having distinguished criminal from civil proceedings, the discussion now turns to civil proceedings. How are they commenced? Filing 13.10 In New South Wales, a civil action is commenced by a person filing in a court office a document called a ‘statement of claim’ or a document called a ‘summons’.6 (Civil procedure rules are similar in the other Australian jurisdictions; only those in New

South Wales will be specifically noted here.) The statement of claim is used in actions based on tort, such as negligence or breach of statutory duty. The summons is used in other cases where there is not likely to be a dispute as to facts. The main difference between the two types of proceedings is that those commenced by statement of claim will involve pleadings, discovery, interrogatories and oral evidence, whereas in proceedings commenced by summons most of the factual issues [page 620] can be dealt with by written or affidavit evidence. An affidavit is a document signed by a person on oath, which has the same effect as sworn evidence. Service 13.11 Once the relevant document has been filed with the court, it must then be served on the other party. Usually service of a summons or statement of claim must be personal service (that is, handed directly to the person), unless the court specifically allows some other method. Entry of appearance 13.12 Once the summons or statement has been served, the defendant must file what is called an ‘appearance’, which is a document that indicates that they are going to defend the claim that has been made by the plaintiff. If this is not done then the defendant runs the risk that what is termed an ‘ex parte’, or default, judgment will be made against them by the court. Pleadings 13.13

The ‘pleadings’ are contained in the documents supplied

by each party that set out the matters that the court has to decide in the hearing. The plaintiff’s first ‘pleading’ is provided with the statement of claim, when they outline the nature of the claim alleged. The defendant then provides a reply in which they set out what is admitted, what is denied, and other issues that are not agreed on. The pleadings may raise issues of both fact and of law. Issues of fact will be raised where one party claims that something is true and the other denies it. Issues of law are raised when a party maintains that, even if the facts are as alleged, the law is not as claimed by the other party. In general, the system is that the pleadings provided by the parties are the basis on which the court will make its decision. This system of pleadings is a result of the fact that our court system is an ‘adversarial’ one — the judge’s task is not to delve into the whole set of circumstances themselves, but rather to adjudicate on the matters the parties present. In this area the common law system shared by Australia, England, the United States and other countries is different to what is called the ‘civil law’ system on the continent of Europe, where a judge or magistrate may take a very active role in investigating: It is one of the defining features of the adversarial system of litigation that the tribunal of fact performs its function exclusively by reference to the material placed before it by the parties and does not itself seek to add to or challenge that material.7

[page 621]

Parties 13.14 A party commencing an action is called the ‘plaintiff’ and the party defending is the ‘defendant’. On an appeal, the party appealing is the ‘appellant’ and the other party the ‘respondent’. There are special rules governing the situation of certain types of

plaintiffs or defendants, such as companies, unincorporated associations and infants.

Pre-trial procedures 13.15 One of the aims of the civil litigation process is that the parties should be able to deal with all the relevant issues when the matter comes to trial. In order to achieve this aim, certain procedures exist that can be used before the trial to allow both parties to become aware of documents that are likely to be used at the trial and matters of fact that are likely to be raised. The general principle is that it is better for the trial not to be conducted on the basis of ‘ambush’ by the sudden production on the day of important documents that have not previously been revealed.8 Discovery 13.16 Discovery is a procedure whereby a party may be required to disclose to the other party all documents in their possession or control that are relevant to a matter which is an issue in the proceedings. Technically, a document has been ‘discovered’ when it is identified in a list of documents provided by a party. (The word ‘discover’ here in its technical sense means something like ‘uncover’ or ‘disclose’ the existence of.) An opportunity for inspection must then be provided, where the other party can examine the documents referred to and also make copies if they wish. A document that is made available under this procedure can only be used for the purposes of the particular trial; it cannot be used later for other purposes. Interrogatories 13.17 Interrogatories are a method of obtaining answers to questions that may be relevant to the proceedings. They consist of a series of questions that must be answered by the other party, and

are designed to clarify the issues on which there is agreement. The answers can be used as evidence in the trial. Valid objections to discovery and interrogatories 13.18 As with questions that may be asked at trial, there are a number of grounds on which a party may refuse to either answer a question or produce a document. There are four main grounds for such an objection, discussed below. [page 622] Legal professional privilege 13.19 A document that has been produced for the purpose of obtaining confidential legal advice is privileged from production: see Baker v Campbell (1983) 153 CLR 52. In Grant v Downs (1976) 135 CLR 674, the proper test was said to be that a document was only ‘privileged’ if the ‘sole purpose’ of the preparation of the document was the giving of legal advice. In Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67, however, the High Court decided that the rule for legal professional privilege at common law now ought to be that a document is protected if the dominant purpose of the document when created was the seeking or provision of legal advice. Grant v Downs was overruled, and the court held that the rule applies to pre-trial discovery as well as to claims of privilege in court. Sections 118 and 119 of the Evidence Act 1995 (NSW) also now deal with this privilege, under the heading of ‘client legal privilege.’ Objections to discovery based on legal professional privilege are available not only in civil proceedings, but also in criminal prosecutions. We will examine the role of this kind of privilege in

more detail when considering criminal proceedings below: see 13.60. Incriminating document or information 13.20 A party is not obliged to produce a document or answer a question that provides evidence of the commission of a criminal offence.9 Oppression 13.21 A party is not obliged to answer a request for documents or information that is so wide-ranging that it would be oppressive (for example, excessively expensive or time-consuming) to provide a complete answer. Public interest 13.22 Certain documents and information held by government officials and ministers are privileged from production on the basis of the public interest. These include matters relating to defence and security and many matters relating to the inner workings of government such as Cabinet documents.

Judge Allocation 13.23 The judge who is to hear a case is allocated by the court, rather than chosen by the parties. [page 623] Impartiality 13.24

A fundamental requirement of our judicial system is that

the judge be impartial. If there is the possibility that an objective observer might conclude that the judge was in some way biased, then the judge should not hear the case. As Kirby P said in Najjar v Haines (1991) 11 BCL 315 at 317: The basal characteristic of any impartial and neutral procedure for resolving disputes is that the court or tribunal, entrusted with any step in the process, should be manifestly independent of the parties. If there is any interest or association with the parties which, undisclosed, could give rise to a reasonable apprehension of bias in an impartial observer knowing the relevant facts, that interest must be disclosed.

However, judges are not required to disqualify themselves simply because of an unfounded allegation by one of the parties. The majority of the High Court summed up the principles in this way in Johnson v Johnson [2000] HCA 48 at [11]: [T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ]

13.25 Occasionally, determining questions of alleged bias in a judicial officer can be a difficult task. In British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2, the High Court had to decide whether a judge in the Dust Diseases Tribunal (Curtis J) should be excluded from hearing a claim concerning tobaccorelated death. In a previous hearing, Curtis J had made a preliminary ruling that BATAS had committed fraud by following a policy of regularly destroying any documents that evidenced their knowledge of the harm caused by tobacco smoke. As a similar issue was relevant in the Laurie proceedings, the question was whether Curtis J’s prior ruling meant that he would be biased in deciding the issue. The majority of the court (Heydon, Kiefel and Bell JJ) held that there was a sufficient danger of at least the appearance of bias for his Honour to have recused himself from hearing the case. There was a strong dissent from French CJ and Gummow J, who both pointed out that Curtis J had expressed his previous finding in

very careful language, and had stressed that it depended on the evidence then before him, which could of course change in a trial with different circumstances. With respect, the minority view here seems very persuasive.

Hearing Role of judge and jury 13.26 In general a trial is concerned with two issues: first, what actually happened; and second, what is the legal effect of the course of events. [page 624] Where a civil trial is held with both a judge and a jury, these two areas are divided between them. It is the role of the jury to make findings of fact; it is the role of the judge to apply the law to those facts. Today it is much less common for a jury to be involved in a civil case, although it is still possible in some rare circumstances. In fact, the Supreme Court Act 1970 (NSW) s 85 now provides that a civil trial will not usually involve a jury, unless the court can be persuaded under s 85(2)(b) that it is in ‘the interests of justice’ that one be empanelled.10 The situation is similar in most other Australian jurisdictions except Victoria, where civil juries are still regularly used. Even though few cases are tried before juries, a judge will still distinguish between issues of fact and issues of law. This will be important in some cases — for example, if the decision is appealed. In general an appeal court is reluctant to overturn a finding of fact, while they are clearly empowered to overrule a wrong legal principle applied by a trial judge.

Open court 13.27 In general, the rule is that a hearing in a court is open to members of the public and may be reported in the press. There are some exceptions to this rule, including certain types of criminal proceedings and family law proceedings. However, a civil case would very rarely be heard behind closed doors. Order of submissions and evidence 13.28 The party who bears what is called the ‘burden of proof’ is the one entitled to commence the proceedings. Usually this will be the plaintiff. The plaintiff’s lawyer opens by summarising the case about to be presented. They then call the witnesses who support the plaintiff’s case. After giving testimony each witness may be cross-examined by the defendant’s counsel. At the end of the plaintiff’s evidence the defendant must decide whether or not to offer evidence. If they decide to present evidence, then the defendant’s counsel makes an opening statement and the evidence is presented in the same manner as that of the plaintiff. If the defendant does not offer evidence (because, for example, they are so confident that they have a valid legal defence that even if the court accepts all the plaintiff’s evidence they will not lose), then the plaintiff’s lawyer sums up their case and concludes. The defendant then addresses the court. The more common situation is that the defendant offers evidence. This is done immediately on conclusion of the plaintiff’s case, followed by a summing up. The plaintiff then has the last address to the court. Figure 13.1 illustrates the usual course of events. [page 625]

Figure 13.1:

Usual course of trial

Some principles of evidence 13.29 In the course of a trial, each party is concerned to present its side of the story. However, long experience has led the courts to develop rules of evidence law, which attempt to provide some order to the otherwise possibly chaotic presentation of facts. Subpoena 13.30

A party to litigation may issue a subpoena to any person

to appear before the court and either to give testimony alone, or to produce documents and give testimony. The witness must be given what is called ‘conduct money’ — that is, an amount sufficient to cover their costs of attending and remaining at the trial. [page 626] Admissible and inadmissible evidence 13.31 Over many years the courts and parliaments have framed a number of rules that determine which evidence the court will, and which the court will not, allow to be given at a trial. In part, the reason the rules were devised was because it was necessary to prevent a jury being misled in some way, when most cases used a jury to determine issues of fact. However, many of the rules are still applied in cases before a judge. Other rules are designed to limit the court’s time being wasted by presentation of material that is not related to the matters in issue. In the summary below, several of the more important areas covered by the rules are briefly discussed. Following a process of discussion and debate over many years, the Commonwealth and the states have now started to implement uniform legislation on the subject of evidence. The Commonwealth legislation covering this area is the Evidence Act 1995 (Cth); the substantially identical New South Wales Act is the Evidence Act 1995 (NSW). (These Acts will be referred to simply as the ‘Evidence Act’ below, unless it is necessary to highlight some particular difference between the Commonwealth and New South Wales versions.) These Acts, where they do not change the common law, will have to be read in the light of the previous law.11 General criterion of admissibility: relevance

13.32 Generally, the main criterion used by the court for admitting evidence is that it be in some way relevant to the truth or falsity of a fact at issue in the proceedings. The Evidence Act implements this rule by defining in a very general way what ‘relevance’ is: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. …

The general rule is then stated in s 56: 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.

[page 627] 13.33 An example of a case in the WHS area where ‘relevance’ was not found is Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49. The particular accident involved a crane chaser who was hit on the leg and knocked down by a 10-tonne chain block that fell from an overhead trolley. The jury found that the injured man was 40% contributorily negligent because he had not looked up to check the position of the trolley. Part of the evidence at the trial consisted of psychological evidence concerning the injured man’s ability to return to work. This evidence was given by a number of psychologists on behalf of the plaintiff, including a Dr Herron and (in an earlier trial) a Dr Bailey. The evidence that was one of the issues in the decision noted

above was a series of questions put to Dr Herron to establish that he and his former colleague Dr Bailey were exponents of a form of psychological treatment known as ‘deep sleep therapy’. This technique and its former application at Chelmsford Hospital caused much controversy in the 1990s; there was a widely publicised series of complaints, a Royal Commission, and civil actions against the practitioners. Counsel for Australian Wire Industries established that Dr Herron was a proponent of this form of therapy, and by evidence from other experts, established that the therapy was thoroughly discredited. However, the plaintiff in this case, Mr Polycarpou, had never received this particular therapy and there was no suggestion that he ever would. As the President of the Court of Appeal, Kirby J, put it (at 59): The questions addressed to deep sleep therapy were … highly prejudicial. They cast doubt upon the integrity and honesty of the medical witnesses whom Mr Polycarpou was calling before the jury. Those witnesses were made to appear in a false or unfavourable light. The questioning was directed to matter extraneous to their actual treatment of Mr Polycarpou … It was simply prejudicial and irrelevant.

As the law stood at the time, the court held that the ‘prejudicial’ nature of the evidence was not enough for it to be excluded from a civil trial.12 But a majority of the court (Kirby P, Meagher J agreeing) concluded that the evidence was irrelevant and should have been excluded. In the end the court as a whole agreed that the jury finding of contributory negligence was wrong, and that Mr Polycarpou should not have his damages reduced. 13.34 Relevance, however, is a necessary but not sufficient criterion for admissibility. That is, for evidence to be admitted it must at least be relevant; however, being relevant may not be enough if there is another rule that requires the evidence to be excluded. For further discussion of ‘relevance’ see the decision of the High Court in Smith v R [2001] HCA 50. In that case, police evidence that a person in a security camera photo was the accused was held

to be irrelevant as the jury could make its own comparison. Kirby J dissented on this point: he took the view that the evidence was ‘relevant’ as the [page 628] police officers had in fact seen the accused in a number of different situations. But he decided the issue against the police on the basis that under s 76 (see 13.39 below) their evidence was ‘opinion’ evidence but not expert evidence. Exclusion of second-hand evidence: hearsay rule 13.35 While there are a number of exclusionary rules, the one that is perhaps the most difficult to apply is the rule against hearsay evidence. In popular parlance the phrase is sometimes used to refer to any evidence of what someone other than the witness said. However, the rule is much more specific than that. The classic statement of the rule is that of the Privy Council in Subramanian v Public Prosecutor [1956] 1 WLR 965 at 970: Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

In the Subramanian case, the witness had testified that certain persons had told him that they were Communist guerrillas and would kill him if he did not cooperate with them. That evidence would have been inadmissible had he been trying to prove that in fact they were Communist guerrillas. But as he was simply trying to prove that he was in fear of his life due to threats, he was able to testify to the fact that threats were made. That is, the truth or otherwise of the statements was irrelevant; what was relevant was that the statements were made and that they induced fear in the accused.

13.36

The Evidence Act s 59 defines the hearsay rule in this way:

59 The hearsay rule — exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. …

The main justification for the rule is that hearsay evidence is unreliable because it cannot be further tested by crossexamination and other techniques in court. It is obviously fairly easy for someone to fabricate such evidence if it suits their case. However, the courts have developed quite a number of exceptions to the hearsay rule, and other exceptions have been established by parliament. These exceptions have been introduced because there are a number of situations in which hearsay evidence is the only evidence available on some matters; for example, where the person who made the statement is dead. The Evidence Act introduces a number of broad-ranging exceptions to the hearsay rule; however, space precludes an extended discussion of these.13 [page 629] 13.37 One example that is relevant to the WHS area, however, is the Evidence Act s 65, which broadly creates an exception to the hearsay rule where a person who directly perceived a representation made by someone else is available and able to give testimony, and the person who made the representation is themselves ‘not available to give evidence’. In circumstances covered by s 65, the person who perceived the giving of the representation may be able to give evidence of the content of the representation in order to prove its truth.

This section was considered by Marks J in WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Pty Ltd [2000] NSWIRComm 165. The prosecution in that case involved an allegation that a lift was overloaded when the lift wire broke. To prove the overloading WorkCover were proposing to produce at the trial a number of hand-written notes provided shortly after the accident by the employees who were in the lift, which contained statements concerning their weight. This was clearly hearsay evidence. A statement made some months ago about someone’s weight is hearsay if produced to prove how heavy the person was. The prosecution were relying on the exception in s 65 because they claimed that the original makers of the statements were unavailable. However, this argument failed because Marks J held that WorkCover were not able to show, within the terms of Pt 2 cl 4 of the Dictionary to the Evidence Act, that ‘all reasonable steps’ had been taken to produce the original witnesses. Basically, WorkCover had not even attempted, as far as the evidence showed, to contact the individual workers. As a result the evidence was excluded from the case.14 In Inspector Reynolds v Ocean Parade Pty Ltd [2006] NSWIRComm 400, hearsay evidence was also excluded. The evidence of a previous statement of a witness was sought to be tendered by WorkCover under s 65, but it was rejected because proper notice had not been given to the accused as required by the Evidence Act s 67: see the discussion at [6]–[20]. 13.38 A confession of guilt by the accused also creates an exception to the hearsay rule. A confession made by the accused as to their guilt is obviously hearsay if adduced at a trial to prove the accused’s guilt. However, the common law has long allowed an exception to the hearsay rule in the case of confessions, so long as they are ‘voluntary’. Howard H Stevenson v A Lukin Nominees Pty Ltd [1996] SAIRC 25 contains an excellent discussion of the issue in the situation of a prosecution for a workplace accident. The Evidence Act s 81 implements the common law rule, with ss 84

and 85 introducing provisos concerning threats and official questioning. Evidence of a previous statement made by a witness who has subsequently changed their testimony may also be led as an exception to the hearsay rule pursuant to Evidence Act s 66, provided that at the time of the previous statement the matters were fresh in the mind of the maker of the statement: see Inspector Rick Bultitude v Wideform Constructions Pty Ltd [2002] NSWCIMC 16. WorkCover Authority of New South Wales v Hitchcock [2003] NSWIRComm 148 also dealt with the admissibility of evidence, where photographs obtained from the RTA [page 630] ‘Safe-T-Cam’ system of a truck travelling along the highway were ruled to be admissible in a prosecution of an employer for not ensuring that a truck driver had sufficient rest periods. In Workcover Authority of NSW (Inspector Simpson) v CNH Australia Pty Ltd [2006] NSWIRComm 220 at [104] ff, the court applied the Evidence Act s 60 to rule as admissible some documents that had been relied on by an expert in the proceedings as the basis of his opinion. That statutory exception to the hearsay exclusion rule applies where a document that would otherwise be hearsay has been admitted under some other provision of the Act. Expert evidence is discussed at 13.40. Another interesting example of the operation of the hearsay evidence rule in this area can be seen in R v FRH Victoria Pty Ltd [2010] VSCA 18. A worker was killed when he was attempting to repair a broken rung on a ladder within a sewerage pipe and was overcome by the fumes. The employer said that the worker and his colleague were only meant to be doing general inspections and had not been ordered to undertake this maintenance job.

Part of the evidence at trial was the testimony of the deceased worker’s ‘off-sider’, who said that he told him that they had been instructed to do the maintenance work. The Court of Appeal found that the judge had been in error in accepting the evidence of what the worker had said to his colleague, in finding that they had actually been instructed to do this work. Neave JA commented (at [58]): Assuming that his Honour did admit the evidence for the purpose of deciding what instructions were given by FRH, he erred in doing so. As hearsay, Lenz’s statement of what he was told by Cocks was not admissible as evidence of the truth of Mr Cocks’s statement …

However, her Honour ruled (at [58]) that the statement could be accepted, not as evidence of the question whether the instruction had actually been given, but as direct evidence that Mr Cocks believed this was what he had been instructed to do: … However his Honour was entitled to rely on Lenz’s deposition as evidence that Mr Cocks believed that the job involved replacing the ladder steps.

This meant that the company was still guilty of a failure to take reasonable precautions for safety, because they had not provided clear written instructions and a job safety analysis of the work that they wanted the pair to do. This failure then contributed to the foreseeable risk that Mr Cocks would be mistaken about the job and attempt to do the maintenance work without proper safety precautions. Her Honour commented (at [72]–[73]): … written instructions limiting the task to greasing man-hole covers would have significantly reduced the possibility that Mr Cocks would have considered it necessary to step down into the sewer at all. Written instructions not to make a confined space entry without using safety equipment (and/or preparation of a Job Safety Analysis identifying risks and safety precautions) would also have significantly reduced the risk that Mr Cocks would ignore necessary safety precautions.

[page 631]

Mr Cocks initially stepped onto the second rung of the ladder, which did not involve a confined space entry. His step down probably occurred when he spontaneously decided to complete the task, believing that he could safely ignore safety precautions. The preparation of a Job Safety Analysis would have significantly reduced the risk of him doing so without using the safety equipment. [emphasis added]

Opinion evidence 13.39 A further type of general evidence that is excluded is evidence of someone’s opinion. In general the courts require evidence of some observation of some sort, as opposed to an opinion that someone has formed. The Evidence Act s 76 defines the rule in this way: 76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. …

However, it is important to note the scope of this exclusion. What is an ‘opinion’? The question arose in Seltsam Pty Ltd v McNeill [2006] NSWCA 158, a case involving exposure to asbestos products, where the plaintiff was allowed to testify as to what course of action he would have taken if a warning about the consequences of such exposure had been included on the product. The court held that this testimony was not an ‘opinion’ — it was direct evidence about a matter that was in issue, which was the state of mind of the plaintiff. The court (at [118]) adopted the following comments of Lindgren J in All State Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75–6: The expression ‘opinion’ is not defined in the Act. In the context of the general law of evidence, ‘opinion’ has been defined as ‘an inference from observed and communicable data’: Wigmore on Evidence, J H Chadbourn (ed), Little, Brown & Co, 1978, vol 7, §1917; and see J D Heydon, Cross on Evidence, 5th ed, Butterworths, Sydney, 1996, para [29010], p 782; Australian Law Reform Commission, Interim Report on Evidence, ALRC 26, 1985, vol 2, para 96, pp 168–9. The origin of the courts’

aversion to evidence of opinion is in the common law’s concern to receive the most reliable evidence; cf Cross, supra, para [29001], p 781. One might be excused for thinking that often the most reliable evidence, and certainly the most obvious evidence, of what a person would have done if facts had been different from what they were, would be that person’s own evidence on the matter. Paragraph 27 does not state an inference drawn or to be drawn from observed and communicable data. It purports to be ‘direct’ evidence from the person uniquely placed to give it, of what that person would have done in a hypothetical situation. This is not ‘opinion’ of the kind against which the general rule against the admissibility of evidence of opinion is directed.

[page 632] Therefore, something is only an ‘opinion’ if it is an inference drawn from other data. If it is a matter of direct experience or observation, it will not usually be regarded as an ‘opinion’ and hence will not be excluded: see Bullman v Debnam [2010] ACTSC 97 where a police officer’s identification of a photograph as being a photo of a woman he had previously met was accepted as direct, not opinion, evidence. See the brief definition offered by the High Court in Honeysett v R [2014] HCA 29: [21] … An opinion is an inference drawn from observed and communicable data.15

Role of expert witness 13.40 However, even if something is an opinion, there is an exception to the exclusionary rule contained in s 76 in the case of what is called an ‘expert witness’. This area is worthy of study as those involved in the WHS area may be called on to be an ‘expert witness’ as someone with expertise in the area of workplace health and safety. The exception is stated in the Evidence Act s 79 in this way: 79 Exception: opinions based on specialized knowledge (1) If a person has specialised knowledge based on the person’s training, study

or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. …

‘Original’ vs ‘expert’ evidence 13.41 If a person is asked to testify in a trial it may be in one of two capacities.16 It may be that they are asked to give what is called original evidence. This is the kind of evidence that can be required from any witness; that is, what was seen, observed or heard. The witness may therefore be asked to describe a safety guard that was present, simply because they observed it. The decision of the UK Supreme Court in Kennedy v Cordia (Services) LLP [2016] UKSC 6 (Kennedy), while obviously not directly binding on Australian courts, provides a recent analysis of the law of expert evidence in a WHS claim, which will no doubt be helpful to courts in this country. Miss Kennedy was a home care nurse employed by Cordia who was visiting a patient on a snowy day when she slipped and injured herself on a slippery footpath. The expert involved in the case, Mr Greasly, at one stage gave [page 633] evidence on the slope of the footpath. The court commented that this did not raise any issues of expert testimony, as it was the sort of evidence that could be given by anyone who observed the scene: see [40]. However, a different kind of evidence may be given as expert opinion evidence. Someone who is qualified in the area of WHS might be asked to testify, for example, as to the cause of an accident, or what precautions might have been taken to prevent an accident occurring. The court receives the evidence of an expert

as an exception to the normal rule that opinion evidence is not admissible. As the court in Kennedy commented (at [41]): Unlike other witnesses, a skilled [expert] witness may also give evidence based on his or her knowledge and experience of a subject matter, drawing on the work of others, such as the findings of published research or the pooled knowledge of a team of people with whom he or she works.

The general principle, as stated in R v Wright [1980] VR 593 at 606 per Kaye J, is: Opinion evidence is admissible where the subject matter of the enquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment on it without the opinion of witnesses possessing special skill and knowledge.

The main common law authority in Australia is Clark v Ryan (1960) 103 CLR 486. Casley-Smith v FS Evans & Sons Pty Ltd (No 1) (1988) 49 SASR 314 is an example of a case in which the evidence of an expert on ‘bushfire behaviour’ was subjected to a very vigorous cross-examination. Conditions for reception of expert evidence 13.42 There are two preconditions that must be satisfied before expert evidence will be accepted: that there is a recognised body of knowledge, and that the witness is qualified as an expert in the area. First, there must be a ‘recognised body of specialist knowledge’ the use of which will assist the court in deciding certain facts. A matter that simply requires the ordinary person’s understanding may not be the subject of expert testimony. The courts accept engineering, for example, as an area of expertise within which expert evidence may be given. Given the increasing interest in workplace safety and the professional qualifications available in WHS, a court will usually find that it is also an area of specialist expertise. 13.43

So, for example, in Waugh v Kippen (1986) 160 CLR 156,

the court referred to the evidence of a Mr McDonald who was described as ‘a mechanical engineer and an expert in industrial safety’: at 169. In Kociolek v Alexandros Investments Pty Ltd (SC(ACT) Higgins J, SCA No 25 of 1991, 17 July 1991, unreported) the court heard evidence from two opposing witnesses, one who was an ‘occupational therapist’ and the other a lecturer in Safety Science. Evidence was presented about the system of lifting certain cartons onto a supermarket shelf and whether or not it amounted to a safe system of work. [page 634] Kociolek was an interesting case because it involved a clash between the two witnesses. Mr Beswick, the occupational therapist, referred to what are known as the ‘Snook’ tables, which are tables used to determine safe lifting weights based on factors such as age and sex. Dr Adams, the lecturer, referred to standards developed in the United States by the National Institute for Occupational Safety and Health (NIOSH), and said that they were more appropriate than the Snook tables. In the end the court found that the employer had been negligent. It did so on the basis that even if Dr Adams was correct about the inherent safety of the task according to the NIOSH principles, an employer in New South Wales in 1983 (when the accident occurred) should have been complying with the Snook tables, which were thought to represent safe standards. That is, even if the employer had been wrong in thinking that such a strict standard was required, this was the standard adopted by the majority of experts in this area in Australia, and should have been followed; if the employer had done so, the employee would not have suffered the injury. 13.44 To return to the question of whether WHS is an acknowledged area of expertise, it is fairly clear that the

investigation of motor traffic accidents has been recognised as a specialist area of knowledge. See Wolper v Poole (1972) 2 SASR 419 at 421 where Bray CJ said: … accident investigation has now become an organised branch of knowledge in which there is an organised course of study.

It seems apparent that the study of the causes of workplace accidents would also be regarded as a relevant area of expertise.17 In the Kennedy case noted at 13.41 above, the UK Supreme Court ruled that ‘health and safety practice could properly be the subject of expert evidence’: at [36]. There has been a debate in the United States on the question of how a court can decide whether a particular expert is speaking from a ‘field of expertise’ or not. This debate is relevant for the purposes of this book not so much in relation to the general field of WHS, but because of the way it affects the consideration of specific areas in which new discoveries might be made. Following is a brief overview of this debate.18 13.45 The decision of the Supreme Court of the United States in Daubert v Merrel Dow Pharmaceuticals 61 USLW 4805 (1993) (Daubert) ruled that for acceptance of expert evidence the test was no longer simply that the particular subject be ‘generally accepted’ in the scientific community. Instead, the court set out a number of criteria directed to determining the overriding question of whether the evidence was scientifically valid, including: empirical testing, specifically ‘falsifiability’; known or potential error rate in the area of study; [page 635] whether the findings have been subjected to peer review and publication; and general acceptance in the scientific community.

For a case where these issues were discussed in Australia, see R v Karger [2001] SASC 64. Mullighan J in the Supreme Court of South Australia declined to follow the strict Daubert approach, holding that where a new DNA profiling technique was ‘generally accepted’ in the scientific community it could be the subject of expert testimony. 13.46 If the first qualification for expert evidence is that there be an appropriate body of knowledge (see 13.42), the second is that the particular witness called must be qualified in that field. Qualification may be established through academic qualifications, or it may be established on the basis of the person’s long experience in a certain area. The issue of ‘non-academic’ qualifications was addressed in two High Court cases dealing with testimony concerning the possible cause of motor accidents: Clark v Ryan (1960) 103 CLR 486 (Clark) and Weal v Bottom (1966) 40 ALJR 436 (Weal). While the claim of a consulting engineer to give expert testimony about the behaviour of semitrailers was rejected in Clark, in Weal the court accepted evidence from a semi-trailer driver about the previous behaviour of trucks he had driven. The court found in the second case that the long experience of the driver qualified him to testify on the area. In Sim v Powell (1997) 22 Fam LR 243 at 247, Young J admitted the evidence of a woman who, while not a qualified valuer, had been buying and selling horses for some years, as expert evidence on the value of a horse: Her experience in the market over a long period of time … is the sort of experience that is covered by s 79 of the Evidence Act, 1995. Accordingly, I admitted Mrs Roycroft’s evidence as to the value of the horses.

In Muldoon v R; Carter v R [2008] NSWCCA 315, a police officer who had been trained to work with a police dog was held to be qualified under s 79 as an expert to give his opinion about the behaviour of the dog in tracking a suspect.

For a decision in the WHS area where detailed consideration was given to the admission of evidence from an expert witness, see WorkCover Authority of NSW (Inspector Simpson) v CNH Australia Pty Ltd: see 13.38. In Dasreef Pty Ltd v Hawchar [2011] HCA 21, the High Court had to consider the evidence of an expert whom the trial judge had taken to provide evidence about the likely exposure to a harmful substance while at work. However, the majority of the court concluded that the expert had probably not intended to give that evidence, and even if he had, that he had not been shown to be sufficiently qualified to give the evidence as his qualifications did not give him expertise in calculating amounts of workplace exposure. The court stressed that on this basis the evidence should have been excluded altogether, not accepted and then weighed up, stating (at [42]): A failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.

[page 636] Opinion must be based on admissible evidence 13.47 In evaluating expert testimony, the court must be satisfied that the expert has based their conclusions on evidence that is itself admissible. That is, the data used by the expert must not be hearsay or otherwise contravene the rules for acceptance of evidence. As Miles CJ said in Forrester v Harris Farm Pty Ltd (SC(ACT), 2 February 1996, unreported) at 13: It is a trite principle of evidence law that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub-stratum of facts, which facts are proved by the evidence in the case, exclusive of the evidence of the expert, to the satisfaction of the Court according to the appropriate standard of proof.

There is an exception to the ‘hearsay’ evidence rule for experts, however, in relation to principles of general application within their area of expertise, as opposed to specifically related to the individual case. An expert testifying in their professional sphere of expertise is not precluded from giving an opinion simply because the opinion is based on facts taught at university or presented in professional journals. It is expected that experts will in turn have to rely on the opinion of other experts: see English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415; PQ v Australian Red Cross Society [1992] 1 VR 19. 13.48 Nevertheless, the expert giving evidence must be careful to stay within their area of expertise. In HG v R [1999] HCA 2, Gleeson CJ commented (at [44]): … it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture ‘opinions’, (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted.

In Honeysett v R [2014] HCA 29 an expert was used to testify that the ‘body shape’ and general appearance of an offender caught on CCTV was a close match with that of the accused. The High Court held (at [45]–[46]) that in giving that evidence the expert was not drawing on any recognised body of knowledge and the evidence should not have been admitted: Professor Henneberg’s evidence gave the unwarranted appearance of science to the prosecution case that the appellant and Offender One share a number of physical characteristics.19 Among other things, the use of technical terms to describe those characteristics — Offender One and the appellant are both ectomorphic — was apt to suggest the existence of more telling similarity than to observe that each appeared to be skinny.

[page 637] Professor Henneberg’s opinion was not based wholly or substantially on his

specialised knowledge within s 79(1). It was an error of law to admit the evidence.

Another example of an expert testifying outside their area of expertise can be found in Verryt v Schoupp [2015] NSWCA 128, where a child psychiatrist was asked her opinion about the reaction of a 12-year-old in certain fairly common circumstances. Her evidence on the point was held to be inadmissible, the court saying (at [51]): The questions which Dr Quadrio was asked to consider did not require or involve any psychiatric assessment of the respondent, either current or at any earlier point in time. Those questions did no more than invite her to express views as to how she thought an ordinary boy of 12 was likely to have acted and thought in the circumstances in which the respondent found himself in January 2007. That subject was not one that her evidence showed to be a field of ‘specialised knowledge’ in which she was expert by reason of her training, study or experience: cf Evidence Act, s 79(1); Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [37].

In addition, not only must the relevant facts be proved but the way those facts lead to the expert opinion must be at least broadly indicated to the finder of fact. In a detailed discussion of the law on expert testimony, Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita) emphasised the point that the testimony of an expert must be based on admissible evidence, and also that the particular evidence that the expert is relying on must be spelled out clearly. The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. The United Kingdom Supreme Court in Kennedy (above at 13.41) also emphasised (at [48]) the need for the ‘chain of reasoning’ to be clear in saying: An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or ‘bare ipse dixi’ carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh 1953 SC 34, 40. If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless. Wessels JA stated the

matter well in the Supreme Court of South Africa (Appellate Division) in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352, 371: [A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert. As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: ‘As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.’

[page 638] 13.49 In Makita the opinion of an expert that a particular step — on which the plaintiff tripped — was slippery was not supported by an explanation as to how he reached that conclusion based on his expertise. Heydon J went on to summarise the law in this area as follows (at [85]): In short, if evidence tendered as expert opinion evidence is to be admissible: it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded.

If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR 414, on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’: at [41]. [bulletpoints and emphasis added]20

13.50 The Federal Court commented to some extent on Heydon JA’s guidelines in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 (Red Bull) and Australian Competition & Consumer Commission v Emerald Ocean Distributors Pty Ltd [2002] FCA 740. In both cases it was emphasised that while the guidelines are correct, a trial judge in the middle of a trial will not always be able to accurately assess whether particular evidence about to be given satisfies all the criteria, and hence occasionally may have to admit evidence which later turns out not to meet the guidelines. In such a situation the evidence will simply be regarded as of lesser weight than other evidence. So in Red Bull, Weinberg and Dowsett JJ, referring to the quote above from Makita, said (at [87]): [page 639] The use of the phrase ‘strictly speaking’ in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour’s requirements before receiving it as evidence in the proceedings. More commonly, once the witness’s claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence.

The comments that Heydon JA (as he then was) made in Makita,

were expanded upon in his Honour’s judgment in Dasreef Pty Ltd v Hawchar [2011] HCA 21. The majority of the High Court in that case resolved the issue, as noted above, on the question of the expert’s lack of relevant expertise. However, Heydon J examined in some detail the rules relating to admissibility of expert evidence in general. His Honour’s comments, while not referred to by the majority of the court as they resolved the issue on different grounds, repay careful reading.21 13.51 A useful summary of many of the issues mentioned above, and the current way that a court in Australia should approach the reception of expert evidence, appears in the judgment of Dixon J in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) [2012] VSC 99 at [98]: In summary, the matters that will usually be considered at both stages of the inquiry that considers whether the exception under s 79(1) renders opinion evidence admissible may conveniently be referred to as four ‘rules’ (one of which is in three parts), which are: (a) is the opinion relevant (or of sufficient probative value) (the relevance rule); (b) has the witness properly based ‘specialised knowledge’ (the expertise rule); (c) is the opinion to be propounded ‘wholly or substantially based’ on specialised knowledge (the expertise basis rule); (d) is the opinion to be propounded ‘wholly or substantially based’ on facts assumed or observed that have been, or will be, proved, or more specifically (the factual basis rules): (i) are the ‘facts’ and ‘assumptions’ on which the expert’s opinion is founded disclosed (the assumption identification rule); (ii) is there evidence admitted, or to be admitted before the end of the tendering party’s case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value (the proof of assumptions rule);

[page 640] (iii) is there a statement of reasoning showing how the ‘facts’ and ‘assumptions’ relate to the opinion stated to reveal that that opinion is based on the

expert’s specialised knowledge (the statement of reasoning rule)?22

For an example of a challenge to the admissibility of expert testimony, which was unsuccessful, see Nair-Smith v Perisher Blue Pty Ltd [2012] NSWSC 1070. The plaintiff was suing a ski-lift operator for an injury she suffered while being assisted onto a skilift. Mr Dohrmann was an expert in mechanical engineering with qualifications in ergonomics. The judge held that he was entitled to give expert testimony about the likely behaviour of the ski-lift chair under certain conditions, and how it could have been handled so as not to cause injury to the plaintiff. A number of claims that his testimony was inadmissible were rejected. In one report, before he had an opportunity to actually scientifically weigh the chair, he described it as ‘fairly heavy’; the judge rejected a challenge to this evidence, saying it was not expert testimony but simply his personal observation of the chair, which he was entitled to take into account until he had further more precise evidence. The fact that he had not had a lot of experience with ski-lifts was not a barrier to him offering an opinion (at [29]): … In my view, Mr Dohrmann’s lack of specific experience in dealing with chair lifts does not affect the admissibility of his evidence. I have described his experience as both an engineer and ergonomist. A ski lift is just another machine which interacts with members of the public to provide transport for their recreational activities. There are obvious similarities (and no doubt some differences) between it and other machines that perform similar functions albeit in different settings such as building lifts. Nothing in the evidence has identified any special feature of the operation or circumstances of chair lifts which makes them so unique that someone with engineering and ergonomic expertise could not analyse and assess their safe operation. To the contrary one might expect that someone with a broader knowledge of machinery and ergonomics generally might be in a better position to discuss their safe operation than someone who has specifically focused on chairlifts.

Previous exclusions: common knowledge, ultimate issue 13.52 There are, of course, many questions that might arise in a civil trial which are not particularly related to workplace health

and safety expertise, and for which it might be held that expert evidence need not be presented. So, for example, in Australian Oil Refining Pty Ltd v Bourne (1980) 28 ALR 529, the High Court said that expert testimony is not needed to establish that a steel platform covered with oily water is more slippery than a dry steel platform. Under the previous common law rules, the court in such a situation would have been required to stop an expert giving testimony about such a matter that was in the [page 641] general ‘common knowledge’. However, Evidence Act s 80 has removed this artificial restriction: 80 Ultimate issue and common knowledge rules abolished Evidence of an opinion is not inadmissible only because it is about: (a) a fact in issue or an ultimate issue; or (b) a matter of common knowledge.

In WorkCover Authority of NSW (Inspector Simpson) v CNH Australia Pty Ltd (see 13.38), Staunton J commented on this provision as follows (at [51]): Where expert opinion evidence is given that goes to ‘a fact in issue or ultimate issue’, it is, in my view, no longer to be considered inadmissible. Section 80 of the Evidence Act makes it clear that the previous common law and ultimate issues rules are abolished.

However, even after the enactment of s 80, it still remains true, as Higgins J commented (at [532]) in Lipovac v Hamilton Holdings Pty Ltd (SC(ACT), 13 September 1996, unreported), that: The rules relating to expert evidence at common law are largely based on good sense and fairness. It is unfair for a party to put forward an argument for a finding on a question of fact under the guise of expert evidence.

13.53 The second common law rule that is abolished due to the operation of s 80 is that the expert was not to give testimony as to the ‘ultimate issue’ in the trial. For example, under that rule, in an action for negligence, while an expert could give evidence that a system of work might have led to a very high risk of injury, and that easy and inexpensive precautions could have been adopted to prevent injury, they would not be allowed to say that the employer was ‘negligent’. Indeed, depending on how strict the judge was, they might not even have been allowed to say that the system was an ‘unsafe system of work’. The rationale for the rule was that — particularly in jury trials — the expert in giving such testimony was usurping the role of the jury, whose job it was to say whether the system was unsafe or whether the employer was negligent. If the expert was allowed to testify in this way there was a possibility that the jury might be overawed by the expert’s credentials to the extent that they were inclined to agree with them. However — particularly as few cases now involve juries — the rule has been criticised as being far too technical, and leading to artificial and semantic distinctions. It has now been abolished by s 80(a), and the expert’s testimony on such matters will simply have to be considered by the judge or jury along with all the other evidence. [page 642] Expert is witness not advocate 13.54 Although this may appear obvious, it is clearly the duty of the professional person, despite the fact that they have been called as a witness for one side, to offer honest and careful testimony. Deliberate untruthfulness under oath constitutes the crime of perjury that may itself be punished by a jail sentence. It is

also more likely to harm a party’s case than help it, if it appears that the expert is acting more like an advocate than a witness. Therefore, in Whitehouse v Jordan [1981] 1 WLR 246 at 256, Lord Wilberforce commented: It is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of the litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self-defeating.

The Australian Council of Professions has published a series of guidelines for professionals called on to give expert testimony.23 They include a statement of priorities that says that the expert’s first duty is to the court, and their second duty to their professional area of expertise. Only third is their duty to further the interests of their client. This same emphasis on the duty of the expert to the court is found in the ‘expert witness code of conduct’ contained in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Sch 7 (formerly Rules of the Supreme Court of New South Wales 1970 Sch K). Clause 2 of the Schedule provides: 2 General duty to the court (1) An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert’s area of expertise. (2) An expert witness’s paramount duty is to the court and not to the person retaining the expert. (3) An expert witness is not an advocate for a party.

A copy of the Schedule is to be provided to anyone called on to give expert testimony in the Supreme Court, and in their testimony the witness must acknowledge that they have read the code and agree to be bound by it.24 Court-appointed expert 13.55

There is provision in the UCPR for the court to itself

appoint an expert if it considers this necessary: Pt 31 Div 3. The report in that case will be supplied to the [page 643] court, which will then allow it to be used as they see fit by the parties. The procedure is fairly rarely used, as it undercuts the basic principle of the adversarial system under which the court decides issues on the basis of the evidence produced by the parties themselves.

Criminal litigation 13.56 We turn now to criminal litigation. Here we are considering the general procedures that are followed for prosecution of a crime, and special issues that arise in the prosecution of offences under the WHSA and related legislation.

Investigation of crime 13.57 Under the general criminal law, it is usually the police who investigate an alleged crime. There are a number of complex rules relating to various techniques that might be used for investigation of an alleged offence before an arrest is made. Space does not permit a detailed examination of these; however, in brief, they include such things as the power to enter premises with a search warrant, the power to require people to answer questions, and various powers to intercept telephone conversations for the purposes of gathering information. There are a number of broad limits to police investigative powers. At common law and still generally today, it is not a legitimate act of investigation to arrest a person. A power of arrest is to be exercised only for the purposes of taking a person before a

justice or magistrate to allow them to be charged with an offence. Nor do police have a general power to enter private premises to gather information; this normally requires a warrant.25 Again, police do not have a general power to seize property, except where specifically granted by a warrant. 13.58 While these principles are generally applicable to criminal offences, there are special rules under the WHSA that greatly strengthen the power of inspectors to investigate possible breaches of the Act. Provisions of this kind are included in Pt 9 of the Act. They include: powers of entry (for example, s 163); powers to seize and remove evidence (for example, s 175); and powers to require answers to questions (for example, s 171). Powers of entry are dealt with in Pt 9 Div 3. These provisions allow an inspector to enter and search workplaces generally (s 163) or under authority of a search warrant issued by an ‘authorised officer’ to enter any premises where there is a reasonable suspicion of an offence having been committed: s 167. Entry may be made to a workplace either with or without notice: s 164. Entry without notice must be subsequently reported to the occupier unless it would defeat the purpose of the entry (presumably to catch someone unawares) or delay the inspector in a case of urgency. Generally, domestic premises may only be entered with permission of the occupier or [page 644] under a specific search warrant (s 170(a) and (b)), although there are special provisions dealing with the situation where entry through domestic premises is needed to gain access to a workplace: s 170(c). 13.59

Part 9 Div 3 Subdiv 4 sets out a wide range of actions that

can be undertaken once the premises have been entered, including asking questions, making searches, taking photos or videos, dismantling or removing objects, and examining records. Sections 175–181 deal with what may be done when items are taken, and when they must be returned, among other issues. Section 188 makes it an offence to obstruct or hinder an inspector in the exercise of the person’s functions.26 Note that s 171(1) allows an inspector not only to ask questions but also to require information concerning the location of, and production of, relevant documents. A failure to comply with the order would be an offence under s 171(6). Hunter Quarries Pty Ltd v New South Wales (Dept of Trade & Investment) [2014] NSWSC 1580 clarified that these are wide powers which can be used on entry to the workplace, and do not have to be exercised under the constraints about writing which are imposed by the separate and different powers granted by s 155. Two important questions are raised by these investigative powers. Does a business have to hand over legal advice that it has received in relation to a workplace incident? If inspectors breach the restrictions imposed by the Act, what impact does this have on the reception of the evidence by the courts? Legal professional privilege 13.60 We noted above (see 13.19) that it was a legitimate reason for refusing ‘discovery’ of a document in civil proceedings where it was produced for the purposes of providing legal advice. It is worth noting that such documents also enjoy a privilege from any requirement to be produced under the exercise of an inspector’s powers under the WHSA. See the explicit reference to this in s 269: 269 Act does not affect legal professional privilege Nothing in this Act requires a person to produce a document that would

disclose information, or otherwise provide information, that is the subject of legal professional privilege.

This doctrine applied to requests for production of documents even under the former OHSA 2000, despite there being no explicit reference to the doctrine in [page 645] that Act. The High Court in Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 (Daniels) held that legal professional privilege (LPP) was to be upheld in the face of a provision allowing the Australian Competition and Consumer Commission (ACCC) to demand documents. In Morrison v Bulga Coal Management Pty Ltd [2008] NSWIRComm 243 a claim for LPP was upheld under the previous legislation, when disclosure by the prosecution of a report prepared in contemplation of proceedings was resisted. LPP is a doctrine which has been described by the High Court in Daniels as an important common law ‘right’ or ‘immunity’; it is a principle designed to ensure that a person who may be subject to possible litigation can freely and frankly discuss their case with a lawyer without the fear that the disclosures made will later be led in evidence in court. As such, of course, as is the case with other legal doctrines, there is the danger that LPP can be misused to cover up wrongdoing that should be exposed. Managers and WHS professionals should never lend themselves to such practices. However, practitioners should be aware of how the law currently works, in order to advise employers and others about appropriate procedures.27 13.61 LPP cannot be invoked in any and every situation where a company wants to resist production of documents. The privilege only applies to communications that have been made with the

‘dominant purpose’ of seeking or giving legal advice by a legal practitioner, or with the dominant purpose of use in existing or anticipated litigation. It is established by the case law, however, that the privilege also applies to communications made by a ‘third party’ or an employee who is conducting an investigation into a matter on behalf of a lawyer engaged by a client to provide legal advice: see Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122. Therefore, if a workplace incident occurred, and the company took the view that there was a realistic prospect that possible litigation may follow, the company can ask its lawyer (who must be an ‘independent’ legal adviser, not simply a member of the board) to provide advice, and the lawyer may then request employees or a third party to conduct an investigation into the matter. Communications following that request would then generally be subject to LPP. The decision in Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 illustrates the fact that it will probably not be too difficult to make out this sort of claim for privilege in a workplace accident case. 13.62 There is a very clear description of the kind of circumstances where a report can be said to be subject to LPP in WorkCover Authority of New South Wales (Inspector Nicholson) v Waco Kwikform Ltd [2009] NSWIRComm 123. There, after an incident in the workplace in which a worker was killed, external lawyers were approached and the law firm asked one of the company’s employees to prepare a report on the matter. [page 646] An extract of the email from the law firm containing this request is quoted in the case (at [21]): We refer to the above accident which we are instructed occurred at about 3pm on 5 January 2006 at the Delta Demolitions site, corner of Sussex and Erskine Streets,

Sydney, and resulted in the death of a person working at that site (who was not employed by Waco Kwikform). In particular, we refer to the legal advice Waco Kwikform has sought in relation to the matter. As you are aware, there is a possibility that this incident will give rise to proceedings under the Occupational Health and Safety Act 2000 (NSW). So that we may provide Waco Kwikform Limited with advice concerning all legal aspects of this matter, it would be appreciated if you could coordinate the preparation of a report concerning this matter and forward that report to us. Please mark the original version of any report (and any documentation produced for the purposes of preparing the report) to our attention and clearly indicate on its cover that it is a document prepared for the purposes of obtaining legal advice. The appropriate form of wording is as follows: ‘Privileged and confidential — prepared solely for the purposes of obtaining legal advice.’ Any copies of the report should be carefully limited and should all bear the same notation on the cover.

The court ruled that four reports produced as a result of this request were subject to legal professional privilege. The fact that the reports might also have been prepared in accordance with a company policy requiring the completion of a report did not negate the fact that a ‘dominant purpose’ of the reports was to allow the provision of legal advice. In addition, the serious nature of the incident made it a substantial, not remote, possibility that litigation would follow. No doubt there are situations where this privilege may be misused. However, there are some cases where the fact that an investigation into an accident can be made fully, and without fear of future disclosure, will be beneficial as this may assist a company to identify issues that need to be remedied in future. In the course of a prosecution, SafeWork NSW inspectors will also have a range of powers to ask questions which will not be impacted by the privilege. This is because where LPP applies it only prevents disclosure of documents, and does not prevent an inspector from asking questions covering the same grounds to discover the answers for themselves. Finally, it should be noted that the High Court in Daniels made it quite clear that the privilege does not apply to shield a communication that is made for an illegal purpose or to perpetrate

a fraud or perjury. LPP cannot, therefore, be used to cover up any deliberate attempts to deceive investigators. As noted above, ss 118 and 119 of the Evidence Act 1995 (NSW) deal with ‘client legal privilege’, although these provisions are mainly relevant in the course of actual litigation. But under s 131A they may be extended to other situations, prior to a case commencing. For other examples of cases where LPP was held to apply in health and safety prosecutions, see Zmak v TCB Trans Pty Ltd [2013] VSC 310 and Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36, which involved detailed consideration of client legal privilege and issues of waiver. [page 647] Result of breach of conditions for exercise of investigative powers 13.63 What is the result if the particular provisions for investigation discussed above are breached? Suppose, for example, an inspector obtains evidence of unsafe conditions in a private house where garment manufacturing takes place, but the inspector obtained that evidence by forcing their way inside the house without a search warrant, contrary to s 170. The answer is to be found, not in the WHSA, but in the common law and statutory rules concerning illegally or improperly obtained evidence. The classic statement of Australian common law on this topic is contained in R v Ireland (1970) 126 CLR 321 at 335, where Barwick CJ said: Whenever … unlawfulness or unfairness appears, the judge has a discretion to reject the evidence … [T]he competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.

This approach was affirmed in Bunning v Cross (1978) 141 CLR 54 at 72. It has now been set out in legislative form in the Evidence Act s 138(1): 138 Discretion to exclude improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way the evidence was obtained. …

The statutory provision is essentially the same as the common law except for one important point: the onus will now be on the prosecution to show why the evidence should be used, rather than on the defence to show why it should not be used. 13.64 Green v Conato Pty Ltd t/as Narrogin Furnishing (1994) 53 IR 276 raises this issue in the WHS area. In this case a firm, Narrogin, was prosecuted for ordering its employees to sand off vinyl that was discovered to have asbestos backing. The sanding operation generated a great deal of dust and was clearly unsafe. The appeal turned on the refusal of the magistrate to accept certain evidence. The evidence in question was a sample of asbestos fibre that had been taken by the inspector. The inspector had failed to comply with the Occupational Safety and Health Act 1984 (WA) s 46, which required that when a sample was taken, the inspector should divide the sample into three parts and give one part to the employer. [page 648] The magistrate held that this failure to comply with the Act led to

unfairness and as a result the evidence of the asbestos had to be excluded. As this was the main element of the prosecution case, the prosecution failed. On appeal, Nicholson J in the Supreme Court of Western Australia found that the magistrate had placed too much emphasis on the apparent unfairness to the accused, and had not properly addressed the question of balancing that concern with the public interest in ‘bringing to conviction those who commit criminal offences’: at 283. In the circumstances his Honour found that the failure to comply with the statute was not intentional but was accidental. He also took into consideration the fact that the defendant had taken his own samples of the vinyl the day prior to the inspector arriving and was thus not really disadvantaged by not receiving a part of the inspector’s sample. His Honour referred to the seriousness of the offence under the safety legislation, and said that on balance the public interest required admission of the evidence. This decision was upheld on appeal to the Full Court: see Conato Pty Ltd t/as Narrogin Furnishings v Green (Full Court (WA), 23 February 1996, FUL 109 of 1994, unreported).

Initiation of criminal proceedings 13.65 Criminal proceedings in New South Wales are usually initiated by either the laying of an ‘information’ for what are called ‘summary’ offences, or the issue of an indictment (for ‘indictable’ offences). The distinction between these two types of offences was that previously ‘indictable’ offences had to be heard before a jury, while a magistrate alone could determine summary offences. These days the terms are generally used to distinguish between the more serious crimes — such as murder or sexual assault — and less serious crimes. A feature that persists in relation to indictable offences is that usually they require a preliminary hearing by a magistrate, which is called a ‘committal’ hearing, when the magistrate determines whether there is sufficient evidence to proceed to a full trial.

13.66 WHSA NSW s 229B sets out the options for commencing prosecutions under the Act. Basically, almost all of the offences are treated as ‘summary offences’, except ‘Category 1’ offences (recklessness giving rise to a risk of death or serious injury).28 The options are: Category 3 offences: summary trial before a Local Court or the Industrial Court: s 229B(2); Category 2 offences: summary trial before the Local Court or the District Court in its summary jurisdiction: s 229B(1); and Category 1 offences: trial on indictment before either the District Court or (presumably, though not spelled out explicitly) the Supreme Court of New South Wales. The maximum penalty that may be imposed by the Local Court is set at $50,000. In Category 3 offences there is provision, under s 229B(6), for an appeal from the Local Court to the Industrial Court. [page 649] The jurisdictional situation in New South Wales is particularly complex and not simply in accordance with the ‘harmonised’ model generally agreed upon.29 Under the legislation in other jurisdictions, it seems to be assumed that whatever courts are invoked are the ‘usual’ criminal courts. In Queensland, for example, the Work Health and Safety Act 2011 (Qld) s 230(1AA) provides for Category 2 and 3 proceedings to be ‘taken in a summary way under the Justices Act 1886’. In general, the document that lays the charge (whatever it is called) must adequately notify the accused person of both the legal and factual elements of the charge against them.

Duplicity

13.67 One of the problems that sometimes arises in the area of WHS prosecutions is the issue of duplicity of charging. The common law ‘rule against duplicity’ provides that an ‘information’ or other document which charges a person with an offence should only charge one offence at a time. The issue came up in relation to the Occupational Health and Safety Act 1983 (NSW) (OHSA 1983) s 15, as to whether it was acceptable to allege the commission of one offence under s 15(1), evidenced by a number of different matters under s 15(2), or whether if that was done the information would contain separate offences and be ‘duplicitous’. The majority of the Industrial Court in Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363 (Magill) held that separate offences against s 15 were committed under the different paragraphs of s 15(2), and hence had to be the subject of separate charges. This result was supported by the High Court’s fairly strict application of the rule against duplicity in Walsh v Tattersall (1996) 139 ALR 27. The situation was later dealt with by the restructuring of the offence provision in s 8 of OHSA 2000, and the particular provision in s 31 of that Act. Former s 8 dealt with the problem by making it clear that there was only one actual offence, with the individual examples being simply clarifications of how that offence might be committed. Section 31 provided that: ‘More than one contravention of a provision of Division 1 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.’ The background to, and operation of, this provision was discussed in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 at [66]–[71].30 13.68 Under WHSA s 19, however, it is possible that the problem of duplicity might once again arise. Section 19(1) imposes a general obligation to ensure safety. Section 19(3) commences by referring to s 19(1) (‘Without limiting subsections (1) and (2) …’),

[page 650] but its wording might be open to the interpretation of OHSA 1983 taken in Magill. That is because the introductory wording of WHSA s 19(3) (‘a person conducting a business or undertaking must ensure, so far as is reasonably practicable …’), followed by a number of separate paragraphs, could mean that each of the paragraphs of the subsection is intended to be a separate offence. However, on one view, that would not be the best way of reading the section. It appears that the main offences are laid out in s 19(1) and (2), and s 19(3) is arguably intended simply to provide clarification as to how the main offences might be committed. Nevertheless, it is still slightly unclear as to how the courts might read the provision.31 It should be clarified, however, that the rule against ‘duplicity’ is not concerned with the question of someone being charged with more than one offence under the WHSA at the same time. That is a common practice that is not prohibited by the Act. So, for example, someone might at the same time be a ‘person conducting a business or undertaking’, and also a person with management or control of premises, and hence might be charged under both ss 19 and 20. If the charge relates to the same set of facts, then it is unlikely that a court would increase the relevant penalty in any way. However, it may be advantageous to charge under multiple provisions where there are different aspects of an incident involving different failures to ensure safety. The rule against duplicity simply relates to the individual documents that are used to support the charges, and is concerned with ensuring that each document only deals with one charge. However — within reason — any number of separate charges may be laid in one trial. It should be noted, though, that the court, where more than one charge relates to the same incident, will usually apply what is known as the principle of ‘totality’ in sentencing. This means that

a sentence will not simply be an arithmetical addition of sentences which might have been awarded in a series of separate prosecutions relating to different incidents. For a discussion of this, see Inspector Fraser v Karabelas [2011] NSWIRComm 56, where the Full Bench of the Industrial Court (at [28]) set out a good overview of the principles: In R v Holder [1983] 3 NSWLR 245, Street CJ described the totality principle at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will

[page 651] arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences.

Mens rea — guilty mind 13.69 The normal rule in criminal prosecutions is that in order for a person to be found guilty of a crime there must not only be an external, physical action which contravenes the law (known by the Latin tag of actus reus); there must also be the intention to commit a crime (the mental element of the offence, known as mens rea, and often referred to as a ‘guilty mind’). While this is almost universally true for common law offences, the complexities of modern life have seen the introduction of a

number of statutory offences, some of which would be almost impossible to administer if proof of intent were required every time. As a result the courts have had to interpret statutes that exclude, in varying degrees, the requirement for intent. An offence that does not require proof of intention in order to be made out is known as a ‘strict liability’ or ‘absolute liability’ offence. While both terms are occasionally used in the literature and also in judgments, technically there is a difference between ‘strict’ and ‘absolute’ liability. As Thompson (a former WorkCover prosecutor) noted, it would be best to call the offence created by former OHSA 2000 s 8 an ‘absolute’ offence: ‘the [Act] is a statute that displaces the presumption of the necessity for mens rea. It follows therefore that the obligations under the Act are absolute in nature.’32 [emphasis added] 13.70 The defining characteristic of a ‘strict’ liability offence, in contrast, is that a defendant may be excused if they can prove an honest and reasonable mistake as to the existence of facts that — if true — would have made their act innocent. But, as Brown et al note, it is a ‘fundamental analytical flaw’ to apply the category of strict liability in this sense to an offence the essence of which is a result.33 Strict liability only applies to offences that may be committed in certain circumstances, and then applies [page 652] to a belief as to those circumstances.34 The possible application of a defence of ‘honest and reasonable mistake’ under OHSA 2000 was clearly rejected by the Industrial Relations Commission: see the comments of Staunton J in WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Ltd and Sassall Glass & Joinery Pty Ltd [2008] NSWIRComm 153 at [238]–[256], where her Honour concluded after a lengthy discussion: In conclusion on this point, I do not agree with the defendant’s contention that the

substantive offences arising under s 8 of the Act are not absolute and are subject to the common law exculpation of honest and reasonable mistake, generally referred to as the Proudman v Dayman defence [1941] HCA 28; (1941) 67 CLR 536 at 541.

See also the decision of Boland P in Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 at [21], agreeing with the above comments.35 Given this background, it is odd to find s 12A in the WHSA 2011 (NSW): 12A Offences are offences of strict liability Strict liability applies to each physical element of each offence under this Act unless otherwise stated in the section containing the offence.

This is particularly unusual, given that New South Wales criminal law does not usually refer to ‘physical elements’ of offences in this way. In fact, it seems clear that this New South Wales provision has been taken from s 12F(2) of the WHSA 2011 (Cth), where it is appropriate because the Commonwealth Criminal Code commonly uses this way of describing criminal offences. In all the circumstances it seems that the best way of understanding s 12A is as follows. It cannot convert the main offence provisions of ss 19–26 into offences as to which there is a defence of ‘honest and reasonable mistake’. These ‘general duties’ provisions require an objective outcome or creation of a ‘set of circumstances’ (that is, that safety be ensured so far as is reasonably practicable), and for reasons discussed below these are best characterised as ‘absolute’ offences. But there may be other specific provisions which have ‘physical elements’ as to which s 12A may apply. So, for example, where s 38(1) of the WHSA requires that a PCBU notify the regulator ‘immediately after becoming aware that a notifiable incident arising out of the conduct of the business [page 653]

or undertaking has occurred’, it may be that an honest and reasonable mistake of fact defence would apply to this provision. 13.71 The application of mens rea to offences under OHSA 1983 was discussed very helpfully by Marks.36 He quoted the judgment of the High Court in He Kaw Teh v R (1985) 157 CLR 523 at 594–5, to the effect that the normal presumption that mens rea needs to be proved may be displaced in the case of ‘statutes which create offences for the purpose of regulating social or industrial conditions’.37 There would seem to be no doubt that both OHSA 1983 and OHSA 2000 were such statutes, and that the legislature had chosen to remove the need for proof of mens rea in establishing liability. In Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467, Watson J in the Industrial Commission clearly held that s 15 of OHSA 1983, by using the words ‘shall ensure’, imposed an obligation that was prima facie breached whenever some sort of injury occurs. There was no need to prove a lack of care in establishing the offence under s 15 — if there was an injury, there was a prima facie breach. It was necessary, of course, to view this in the context of s 53 of that Act, which allowed the defendant to seek to prove that there was nothing they could have done which was ‘reasonably practicable’ to prevent the injury. Liability under s 15 was ‘absolute’ — a conclusion repeated by his Honour in Gardner Bros Pty Ltd v McAuliffe (1986) 15 IR 477. The Full Bench of the Industrial Commission in Court Session, Fisher P, Sweeney J and Wells DP in Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428, affirmed this approach when it said (at 431): In our opinion s 15 imposes an absolute liability on an employer subject to s 53 which provides for a defence in certain, defined circumstances.

Marks J commented in Magill v Boral Gas (Australia) Pty Ltd (1993) 53 IR 7 at 18 that: The legislature has deliberately created offences in wide-ranging and absolute terms

imposing, in essence, an obligation on an employer to prove its innocence in terms of the provisions of s 53.

The High Court in Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [10] reaffirmed the above view of the Act, noting that the standard required by the Act: … is not expressed in terms of the standard recognised by the common law, to take reasonable care. It is higher. So much is evident from the requirement ‘to ensure’ the

[page 654] health, safety and welfare of employees or that persons are not exposed to risks to their health and safety at the place of work.38

13.72 However, as noted above at 13.7, even though the WHSA incorporates considerations of ‘reasonable practicability’ into its definition of offences, the logic applied by the Victorian Court of Appeal in R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 seems to imply that the obligation should still be called ‘absolute’. That is, the standard of ‘reasonably practicable’ is an objective standard, like that under the common law of negligence — it does not depend on an examination of the particular state of mind of the accused. Whatever the personal extenuating circumstances of the accused (for example, that they were not actually aware of a particular safety risk), the question for the court is whether a ‘reasonable’ business operator could have done more. Hence in s 18(c), the question is ‘what the person concerned knows, or ought reasonably to know’ [emphasis added] about hazards and prevention. Similarly, on the above reasoning, the WHSA s 19 offence should not be described as one of ‘strict’ liability, in that it requires the maintenance of a ‘state of affairs’ (that is, the absence of relevant risks), and hence seems not to be subject to a defence of ‘honest and reasonable mistake’ concerning the surrounding circumstances.39

Prosecuting corporations 13.73 Most businesses of any size operate through companies. Can a company be prosecuted for a crime? The short answer is yes, just as an ordinary person can. However, there are issues that raise difficulties when a company is prosecuted for an offence that involves proof of mens rea. There is no such problem, however, under WHSA s 19 and similar absolute obligation provisions. Clearly, a corporation that has failed to ensure safety can be held to have committed an offence against the absolute liability provisions whatever the state of mind of any member of the corporation. This was reinforced by the Full [page 655] Bench of the Industrial Court in Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 86, and these comments were not in any way undermined by the subsequent appeal to the High Court on other issues. Also, as noted in Chapter 8 at 8.18 ff, under WHSA s 27 there is also a separate duty on company officers to exercise due diligence to ensure that the company complies with its obligations. 13.74 However, the issue has been raised in the literature whether a particularly serious breach of safety laws by a corporation, resulting in the death of a person, might not amount to the crime of manslaughter having been committed by the corporation. If that were to be the case, then it may be necessary to establish who was to be regarded as having the requisite ‘guilty mind’ within the corporation. There is at least one Australian case and one United Kingdom case where such prosecutions at common law have succeeded,

although neither went to a higher level and so no details of judicial reasoning are clear. The Australian case was R v Denbo Pty Ltd (SC(Vic), Hempel J, 2 June 1994, unreported). A truck driver working for the company was killed when the brakes on his truck failed while he was taking a steep short cut on a construction site. The evidence was that one of the directors of the company, Mr Nadenbousch, knew that the brakes were faulty, and should have either had the brakes fixed or instructed the worker to take another route. In the event, the company pleaded guilty to manslaughter and received a fine of $120,000. Mr Nadenbousch had originally also been charged with manslaughter; however, that charge was dropped and he pleaded guilty to offences under the Victorian Occupational Health and Safety Act 1985, for which he received a personal fine of $10,000. The case provides an example of what might happen. But how can a corporation have a ‘guilty mind’? 13.75 The view that has been adopted by the Australian courts, as Crabtree points out, is that represented by the English case of Tesco Supermarkets Ltd v Nattrass [1972] AC 153 (Tesco).40 On that view, for a corporation to be guilty of an offence involving mens rea the guilty mind must be found at the level of the board of the company; that is a senior executive, or someone to whom those powers have been delegated — someone who is the ‘directing mind and will’ of the company. This means that it will be much easier to establish the liability of small companies than that of large ones. Clarkson points out that in the United Kingdom after the sinking of the cross-Channel ferry Herald of Free Enterprise in 1987 the authorities tried to charge P&O and some of its major directors with manslaughter. This failed because it could not be shown that the people who had made the decisions were high enough up in the company to be regarded as its ‘directing minds’.41

[page 656] 13.76 However, the approach to this issue has changed since the decision of the Privy Council in the New Zealand appeal of Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 All ER 918 (Meridian). In that case the Privy Council suggested that the Tesco approach was no longer always appropriate, and argued that what should be adopted was a situation-by-situation approach. That is, whenever a rule of law assigns responsibility to a person, the court will have to take into account the specific purposes of that law to see who it is in a company whose state of mind should be attributed to the company. Lord Hoffmann, delivering the judgment, said (at 928): It is a question of construction in each case as to whether the particular rule requires that the knowledge that an act has been done, or the state of mind with which it was done, should be attributed to the company … [For example] the fact that a company’s employee is authorized to drive a lorry does not in itself lead to the conclusion that if he kills someone by reckless driving, the company will be guilty of manslaughter.

In 1995 the United Kingdom company AC Hatrick Chemicals Pty Ltd was charged with manslaughter in relation to a death of a worker after the explosion of a tank during welding.42 The proceedings are unreported, but apparently the judge followed the Tesco approach, and ruled that as the two people who had made the negligent decisions in the case — a plant engineer and a plant manager — were not the ‘guiding mind’ behind the company, the company could not be found guilty of manslaughter. The judge apparently specifically rejected the argument that the Meridian case had changed the law. This is an issue that will require further consideration. The literature43 on the subject contains some interesting discussions on the whole question of prosecuting corporations and a compelling analysis of how manslaughter prosecutions against companies should be able to be brought even under the common law.44

13.77 It has been accepted by the New South Wales Court of Appeal that a company can be convicted of most offences, including the offence of manslaughter: see Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 at [10] per Allsop P: There is now authority that a company can be guilty of manslaughter: R v HM Coroner for East Kent; Ex parte Spooner (1989) 88 Cr App R 10; P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72; Attorney-General’s Reference (No 2 of 1999) [2000] QB 796; Transco plc v Her Majesty’s Advocate [2005] BCC 296; R v Murray Wright Ltd [1970] NZLR 476; and see generally the cases discussed in Clough J and Mulhern C The Prosecution of Corporations (Oxford University Press 2002) pp169ff.

[page 657] Amendments to the criminal law at the federal level indicate how, in future, it will probably be easier to prove mens rea (where necessary) in the way a company normally operates in general, rather than having to focus on specific company board decisions. The Criminal Code Act 1995 (Cth) (Criminal Code) sets up new provisions governing criminal liability under Commonwealth law, and is intended as a model code which will gradually be introduced in all jurisdictions. The Criminal Code commenced operation on 15 December 2001. Part 2.5 s 12.3 of the Criminal Code which is implemented by the Act provides that a corporation will be held to have mens rea — what the Code terms the ‘fault element’ of an offence — where it expressly, tacitly or impliedly authorised the commission of an offence. That authorisation of an offence may be found under s 12.3(2)(c) where ‘a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision’. It is not hard to imagine cases where a large company might not specifically order people to breach safety requirements, but where the general attitude of the senior managers makes it clear that safety is not a high priority. In such a situation, in future the

company might find itself in danger of being convicted of manslaughter if a safety lapse leads to the death of an employee.45 In addition to this Commonwealth initiative there have been a number of proposals to introduce specific offences of ‘corporate manslaughter’ in some Australian states.46 While the offence is not called ‘manslaughter’, the provisions of WHSA s 31 (as noted in Chapter 7) create a very serious similar offence where there has been reckless behaviour, without reasonable excuse, creating a risk of death or serious injury or illness. 13.78 As a matter of interest, there is now specific legislation dealing with this issue in the United Kingdom, the Corporate Manslaughter and Corporate Homicide Act 2007 (UK), which commenced on 6 April 2008. A company may be guilty of ‘corporate manslaughter’ under s 1(1) of that Act where: … the way in which its activities are managed or organised (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

[page 658] The first reported trial under the legislation, of Cotswold Geotechnical Holdings Ltd, resulted in the conviction of the company on 11 February 2011. A company employee had been allowed to go deep into an unsupported pit, and was killed when the pit collapsed, in circumstances where the company was clearly aware that this was a dangerous practice. A substantial fine of £385,000 was imposed. On appeal the conviction was upheld, despite the fact that the size of the fine meant that the small company had to go out of business. The Court of Appeal in R v Cotswold Geotechnical Holdings Ltd [2011] EWCA Crim 1337; [2012] 1 Cr App R (S) 26 noted that the trial judge had been entitled to take the view that there was gross carelessness, and that in some cases the fact that an

appropriate fine might mean the insolvency of the firm just had to be accepted.

Rights and obligations of prosecutor 13.79 A number of checks and balances have been built in to the criminal system in an attempt to balance those values discussed earlier (at 13.63) — the public interest in the guilty being convicted and the public interest in no innocent person being found guilty. In addition, there are a number of rules that a prosecutor is obliged to observe in order to act as a counterweight to the power of the state against the individual defendant. In brief, some of these principles are: the need to prove guilt beyond reasonable doubt; in general, the prosecutor is not to seek a conviction by unfair means; and in particular, the prosecutor is obliged, subject to limited exceptions, to disclose evidence which is relevant to the guilt or innocence of the accused.

Rights and obligations of defence In general 13.80 In contrast, the defence is under no obligation to disclose its case. A number of rules support the principle that it is entirely up to the prosecution to prove its case beyond reasonable doubt. These rules include the following: The defendant has the right to remain silent, both before and during the trial, and in the course of the trial no suggestion is to be put that draws adverse inferences from the defendant’s silence. In Dietrich v R (1992) 177 CLR 292, the High Court held that when an accused who is facing a serious offence does not have the money to pay for their defence, then the case should not

usually proceed unless they have access to a lawyer supplied by the government. Note that another important rule reflecting these policies is that the Evidence Act s 17(2) explicitly states that an accused is not to be a competent witness who can be called by the prosecution in their own trial. This was one of the reasons that the High Court in Kirk (see 13.71) overturned the conviction of the director, Mr Kirk, as he had been called to give evidence by the prosecution. Even though this course of [page 659] action was undertaken with the consent of Mr Kirk, there had been a clear breach of that Act.47 Privilege against self-incrimination 13.81 The rule known as ‘the privilege against selfincrimination’ provides that a person is not required to answer questions that might tend to incriminate them. (See Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 for comments on the common law rule and its importance.) The rule applies in pre-trial procedures as well as in a trial. The provision as it applies in trials is also legislatively implemented under s 128 of the Evidence Act 1995 (NSW). However, unlike legal professional privilege noted above, under s 131A of the Evidence Act the s 128 principles about self-incrimination are not extended to pre-trial discovery. 13.82 The privilege against self-incrimination, however, does not apply to corporations — see Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 68 ALJR 127 — and it may be removed by specific statute. Under former OHSA 2000 s 65 the privilege could not be used to refuse to answer questions put by WorkCover. The same rule now applies under the WHSA s 172:

172 Abrogation of privilege against self-incrimination (1) A person is not excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty. (2) However, the answer to a question or information or a document provided by an individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document.

The effect of this provision is that a person is required to answer ‘out of court’ questions put to them by an inspector under the other provisions of the WHSA, but that the answers given cannot themselves be used as evidence in any subsequent prosecution. However, clearly the answers may allow SafeWork New South Wales to conduct other investigations to produce other evidence of the matters revealed, if there is such evidence. The fact that there is protection against use of the answers themselves in subsequent proceedings means that this is what is called a ‘direct use’ protection. Other legislation abrogating this privilege (such as s 128 of the Evidence Act, which applies to evidence given in the course of a trial) sometimes provides a further ‘indirect use’ protection, so that evidence cannot even be led if it was later obtained as a result of an answer being [page 660] compulsorily provided. But the protection provided by the model WHSA s 172 does not extend that far. However, it is important to note that ‘derivative’ or ‘indirect’ use of evidence provided under s 172 is prohibited under the model law as it applies in the Australian Capital Territory, the Commonwealth and Queensland, where their equivalent of s 172(2) uses the words ‘directly or indirectly’. See the analysis of this area by Gold, who also argues that there

should be an ‘indirect’ use provision in New South Wales and those states which do not have it, both on general policy grounds and because she says (in Victoria at least) that it is supported by the principles of domestic human rights legislation, the Charter of Human Rights and Responsibilities Act 2006 (Vic).48 Note also that the exemption clause under s 172(2) only applies to individuals, not to companies (whereas the general requirement for disclosure in s 172(1) uses the word ‘person’, which will apply to companies). This is consistent with the common law principle that the privilege against self-incrimination is not available to companies. 13.83 In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of State of New South Wales (Police Service of New South Wales) (2000) 102 IR 252, Hungerford J (at [27]) held that as the Crown was a ‘corporation sole’ for many purposes, the rule in Environment Protection Authority v Caltex applied to it, so that the Crown (that is, the state government) could not claim the privilege against self-incrimination. The decision of the Full Bench of the Commission in Court Session (Fisher P, Bauer and Hungerford JJ) in WorkCover Authority of New South Wales v Seccombe (1998) 43 NSWLR 390 contains a discussion of the privilege against self-incrimination under the former OHSA 1983. The Commission there said (at 394): It remains the fundamental position at common law … that no person can be compelled to incriminate himself.

Any legislative removal of this right must be very clear and will be strictly interpreted. In the circumstances of the case, an inspector questioned Mr Seccombe, who was a director of a company that was also being prosecuted in relation to the same incident. Before being questioned, he was informed that he had an obligation to answer the questions, but if he wished to he could claim a privilege

against self-incrimination — in accordance with former s 31M of the OHSA 1983, now replicated to some extent in WHSA s 172. The Industrial Relations Commission (IRC) held that the warning he had been given was not sufficient. The obligation to answer questions came from former s 31N(d) of the OHSA 1983, which provided that: A person must not… (d) without reasonable excuse, refuse or fail to comply with a requirement made or to answer a question of an inspector asked in accordance with this Division

[page 661] The exception to the obligation to answer was not simply the privilege against self-incrimination — it was generally expressed to be a ‘reasonable excuse’. As a result, the trial judge was found to be within her rights to exclude the evidence, under the general provisions of ‘unfairness’ set out in the Evidence Act s 90. A caution to a person being questioned had to indicate the ‘reasonable excuse’ exception. The same result would seem to follow under the present legislation, the WHSA. The offence of failing to answer is spelled out in s 171(6), and includes the element ‘without reasonable excuse’. Under s 173(1)(b), before questions are asked a warning must be given ‘that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence’. Under s 173(1)(c) and (d) the person being questioned must also be informed of the provisions of s 172 relating to selfincrimination, and of s 269 relating to legal professional privilege. Self-incrimination and prosecution of company officers 13.84

The requirements of the common law and the WHSA

dealing with self-incrimination can create difficult issues when a prosecution of a company officer is undertaken, pursuant to WHSA s 27. These issues were raised in relation to former OHSA 2000 s 26, due to the interaction of the following propositions: the liability of an officer under s 26 depended largely on the liability of the company under another provision of the Act; the officer concerned may have been a source of statements which related to the guilt of the company; the company itself could not claim the privilege against selfincrimination, so that the officer could not refuse to make statements on the basis that they would incriminate the company; but if the company were convicted, then the liability of the officer would then flow almost automatically. The consequence was that in some cases there was a danger that statements that would not have been admissible against the officer may have been admitted against the company, and in effect the officer may then have been convicted on the basis of those statements. 13.85 While WHSA s 27 is structured in a different way to former OHSA 2000 s 26, the issues still to some extent remain. An element of the offence under s 27 is that the company itself has failed to comply with a duty or obligation it had under the Act. If the company and the officer are tried in the same proceedings, can the officer be required to testify about the matters that may have led to the company’s contravention? If so, does this not then mean that their testimony is effectively being used as part of the matters that will result in their own conviction? In the past, the situation has arisen in particular in relation to pre-trial investigations and statements made to WorkCover Inspectors. OHSA 2000 s 65 contained a detailed code on the general admissibility of evidence collected by inspectors, which started with the proposition that a person might not refuse to

answer on the ground of self-incrimination. However, s 65(2) qualified that proposition by stating that such [page 662] answers would not be admissible if either a claim of privilege had been made before the answer was provided, or the person had not been warned that such a claim may be made.49 13.86 In WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd [2000] NSWIRComm 214,50 Wright J referred a question of law to the Full Bench of the Commission in Court Session on this issue. Australian Winch was being prosecuted under OHSA 1983 s 15, and at the same time Adam Hemsworth, as a director of the company, had been charged under former s 50 in relation to the same incident. One of the issues in the trial concerned whether Mr Hemsworth was interviewed without being properly cautioned, as required by former s 31M(2). The result of a failure to give a caution, in accordance with the provision, and as confirmed by the decision of the Full Bench in WorkCover Authority of New South Wales v Seccombe,51 would be that any statement he made would be inadmissible in criminal proceedings against him. The prosecution, however, made an application that proceedings against Mr Hemsworth be heard separately, following the conclusion of proceedings against the company. The effect of this would be that in the proceedings against the company Mr Hemsworth’s statement would be admissible against the company. As noted previously at 13.82, the High Court in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 held that a corporation could not claim the privilege against selfincrimination, a situation confirmed by s 187 of the Evidence Act. The situation was complicated by the fact that some comments had been made in the earlier case of Seccombe that where there was

a joint trial of company and officer, statements that were inadmissible against the officer could not be admitted against the company. However, subsequent to the Seccombe proceedings, s 31M(3) had been introduced into the OHSA 1983, which read: (3) Subsection (2) does not prevent the admission in evidence in proceedings against a body corporate of any statement, information, document or evidence obtained pursuant to a requirement under this Division from a person as a competent officer of the body corporate.

The defendants argued that to allow the evidence of the officer to be admissible against the company would amount to circumventing the important statutory protection against selfincrimination. In particular, if the company were to be convicted, the prosecution argued that they should then simply be able to produce evidence of the fact of that conviction for Mr Hemsworth’s liability under s 50 to be established. As a result the defence claimed that the protection given to Mr Hemsworth [page 663] under s 31M would be rendered useless. These two issues — whether the evidence was admissible, and the effect of a company conviction on the accused’s subsequent liability — are worthy of some comments. Proving contravention by company 13.87 We will first discuss the effect of a company conviction on the accused’s subsequent liability. The question here concerns how s 50 functioned where there had been a previous actual conviction recorded against the company.52 Was it sufficient — as in fact was held in Inspector Mackintosh v Phillips (Chief Industrial Magistrate, No 91/491, 5 May 1992, unreported) — simply to produce formal evidence of the company’s conviction? Or, since s

50 required that the company ‘contravene’ the Act or regulations, was it necessary in a s 50 prosecution to once again litigate the issues of the company’s guilt? It is suggested that the decision of Maidment J in Workcover Authority of New South Wales v Grigor (No 2) [1997] NSWIRComm 62 has some bearing on this issue. In that decision, Maidment J refused to hear the prosecution under s 50 of a director where the company had been acquitted of the ‘head’ offence. The decision was made on the basis that to allow the s 50 action to proceed would be an abuse of process, as it would involve re-litigating issues that had already been decided by the previous hearing. In doing so, Maidment J adopted the following words of the High Court in Walton v Gardiner (1993) 177 CLR 378: … proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.53

It might be argued, then, that the converse principle ought to apply in a prosecution where the preliminary issue is whether or not the corporation ‘contravened’ the Act. If there is a decision of a court of competent jurisdiction that the corporation did indeed contravene the Act, it would seem to be an abuse of process to require that issue to be re-litigated.54 13.88 Whatever force this argument may have, it was not presented to the Full Bench in Australian Winch & Haulage, which concluded on this point that it was not [page 664] sufficient to simply produce a record of conviction of the company. In doing so the court pointed out that the requirement for an offence under former s 50 (as under WHSA s 27) was not a

‘conviction’ of the company, but the fact that the company had ‘contravened’ the legislation.55 Section 178 of the Evidence Act allows the fact of conviction to be proved by a certificate from a court. However, it needs to be read with s 91(1) of that Act, which provides: 91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. …

Their Honours concluded (at [59]): [I]n our view the essential element of an offence under s 50 is the contravention of the Act by the corporation not the conviction of the corporation: s 50(1). An offence under s 50 does not require that a corporation has been proceeded against or convicted: s 50(2). As such, the conviction of the corporate defendant is not a fact in issue in proceedings under s 50 and therefore the certificate of conviction could not be tendered under s 178 of the Evidence Act; s 91(1) operates to preclude it.

With respect to the Full Bench, there may be more to be said on this issue, which unfortunately does not seem to have been commented on by past authority. While s 91 of the Evidence Act seems to clearly preclude the evidence of a previous conviction ‘to prove the existence of a fact that was in issue’, the question remains as to what effect should be given to s 178(3) of that Act, which provides that: (3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate.

It is arguable that a document certifying a company’s conviction of an offence under the OHS Act must at the very least amount to ‘evidence of the particular offence … in respect of which the conviction … was … made’. Such a certificate must be evidence that the company has ‘contravened’ the Act (or ‘failed to comply’).

On this view, while s 91 would preclude a previous conviction being used as evidence of particular ‘elements’ of an offence (intent, for example), it cannot be intended to preclude the conviction being used as evidence of the very thing for which the conviction stands, that the [page 665] accused was guilty of the offence and has contravened the law.56 The relationship between ss 178(3) and 91(1) seems unclear, but this view would at least allow them both to play a part in a coherent piece of legislation.57 Could evidence inadmissible against officer be admitted against company? 13.89 As to the more fundamental issue — whether evidence that is inadmissible against an officer should be admissible against the company in a joint trial — the Full Bench in Australian Winch & Haulage concluded that it should be admissible, and that there could be a joint trial of both company and officer. In such a trial, of course, the finder of fact (who would generally be a judge, not a jury) would need to carefully distinguish between the two defendants and the evidence that was admissible against the separate defendants. The judge might be able to accept a statement for the purposes of convicting the company but, if the statement was inadmissible against the officer, decline to convict the officer. In coming to this view the Full Bench took into account comments to the contrary made in Seccombe (see 13.83 ff), but decided that the introduction of s 31M(3) into the legislation made it clear that the legislature intended to allow the evidence of an officer to be admissible against the company even if not admissible against the officer. The court stated (at [42]):

The provisions of s 31M(3) make clear on their face that, as a matter of general application, a statement otherwise inadmissible against an individual person will not be inadmissible against a corporate defendant in a joint trial. To find otherwise would be to render s 31M(3) nugatory. The question then arises as to whether some other rule or principle may be identified which would have the effect of otherwise excluding the admission of a statement made by an individual officer of a corporation (which is inadmissible against that person) against the corporation in a joint trial. We find no such principle or rule stated in WorkCover Authority v Seccombe or in the common law. None has been pointed to by the prosecutor or the defendant. In our view, the question of admissibility should be determined in accordance with the ordinary rules of evidence. [emphasis added]

In light of this finding, however, it seems odd that a provision corresponding to s 31M(3) of the OHSA 1983 did not find its way into the OHSA 2000. Nor is there any parallel provision in the WHSA. On the basis of the reasoning in the Full Bench decision in Australian Winch & Haulage, in the absence of a provision like s 31M(3), there must be some doubt as to whether in a joint trial evidence obtained pursuant to pre-trial investigations which is inadmissible against a company officer can be admitted against the company. [page 666] There must also be some doubt as to how a trial of an officer should be conducted in parallel with the trial of the company.58 13.90 Given the wide reach of s 27 — which covers not only formal directors but, as noted in Chapter 7, others in management roles — this problem has the potential to hamper prosecutions against companies. This will be especially so where it is alleged that a failure to ensure health and safety in the workplace stems not from ‘shop-floor’ accidents but from some sort of systemic management failure. Evidence of an unguarded machine, for example, can clearly be taken from employees. However, evidence that management failed to consider safety

issues over a period of time, may sometimes require testimony and documents from those who would be potential accused persons. The problem should not be overstated, however. Where there is an obvious risk to health and safety, then it will often be very clear how this has come about. While the formal legal burden of proof will lie on the prosecution to outline reasonably practicable methods that could have been adopted to ensure safety, once some methods have been identified it will, as a practical matter, be up to company officers to produce management documents by way of defence. Once this has been done, then such evidence obviously becomes admissible. Still, there may be occasions where the fact of a ‘risk’ is itself only within the knowledge of management. For example, the presence of ‘Legionnaire’s disease’ in a water-cooling tower may only have been disclosed to senior managers. In that case it would be highly desirable that a management representative could be required to provide documents to an investigator, and that the company would not subsequently be able to claim the privilege. Cases of systemic management failure are precisely the sort of cases where more prosecution activity is required. It would seem to be sensible to amend the WHSA to insert a provision equivalent to the former OHSA 1983 s 31M(3), which seems to have been omitted by error. This will at least enable officers’ evidence that has been obtained in investigations to be used in ‘management failure’ prosecutions of companies. It may have been the lack of such a provision that led to the unusual situation in the Kirk proceedings where Mr Kirk’s evidence was called by the prosecution against the company in a joint trial, which led to the High Court overturning the conviction.59 Until the situation is further addressed by parliament, if at all, the result under the current law seems to be as follows: An officer of a company, if questioned under Pt 9 about a matter involving a safety breach by the company, cannot refuse to answer

such a question on the basis that the company may be incriminated. [page 667] Once that answer is given, it can be directly produced in the prosecution of the company (since the immunity from use of the answer under s 172(2) will only apply to the officer individually, not to the company). If the company is then convicted under, say, s 19 of failing to do what is reasonably practicable to ensure safety, then in later proceedings the officer themselves may be prosecuted under s 27 for failing to exercise due diligence to see that the company complied with its duty. Under s 172(2), however, none of the individual’s previous answers to questions under Pt 9 about the company can be directly used as evidence against them in proceedings against them. Can the fact that the company was convicted under s 19 be used as evidence under a s 27 prosecution of an officer that the company did not ‘comply with’ its obligation under s 19? As noted above, s 91 of the Evidence Act prevents mere evidence of a former criminal trial being led to prove the truth of a ‘fact in issue’ in the previous proceedings. However, s 178 of the Evidence Act allows a certificate to be issued from the previous court attesting to a conviction,, as noted above at 13.88. So it seems arguable that a certificate recording ‘fail to ensure, so far as is reasonably practicable, health and safety’ under s 19, could indeed be used as evidence that the company had committed this offence and hence had not complied with its obligations. Even so, under s 27 it would still be necessary for the prosecution to prove a lack of due diligence on the part of the

individual officer, and this would require separate evidence to be led. In New South Wales, however, where ‘indirect use’ is not barred, the prosecution, while they could not rely on the actual prior admissions of the officer, could use that information to track down documents and examine events to prove their case.

Further Reading C M V Clarkson, ‘Kicking Corporate Bodies and Damning Their Souls’ (1996) 59 Modern Law Rev 557–72. J Clough, ‘A Glaring Omission? Corporate Liability for Negligent Manslaughter’ (2007) 20 Aust Jnl of Labour Law 29–52. J Clough and C Mulhern, The Prosecution of Corporations, OUP, Oxford, 2002. M Crabtree, ‘Corporate Culpability for Industrial Manslaughter: Finding the “Soul” of the Australian Corporation’ (1994) 22 Aust Business Law Rev 376–81. K Downes and S Hooper, ‘Disclosure’ (2008) 28(1) Proctor 37–8, 40 (on legal professional privilege). N Foster, ‘General Risks or Specific Measures? The High Court Decision in Kirk’ (2010) 23 Aust Jnl of Labour Law 230–9. N Foster, ‘Manslaughter by Managers: The Personal Liability of Company Officers for Death Flowing from Company Workplace Safety Breach’ (2006) 9 Flinders Journal of Law Reform 79–111. [page 668] I Freckleton and H Selby, ‘Experts and Their Evidence’ (1996) 31(7) Australian Lawyer 19.

J Gobert and A-M Pascal (eds), European Developments in Corporate Criminal Liability, Routledge Advances in Criminology series, Routledge, London, 2011. S Gold, ‘Bulwark of Liberty or Impunity for the Wicked? The Abrogation of the Privilege against Selfincrimination in the National Model Work Health and Safety Bill’ (2014) 27 Aust Jnl of Labour Law 1–30. A Higgins, ‘Legal Advice Privilege and its Relevance to Corporations’ (2010) 73(3) Modern Law Review 371–98. Z Lipman and L Roots, ‘Protecting the Environment through Criminal Sanctions: The Environmental Offences and Penalties Act 1989 (NSW)’ (1995) 12(1) Environmental & Planning Law Jnl 16–36. B Madden, ‘Changes to the Role of Expert Witnesses’ (2000) 38 Law Society Jnl 50–2. J McMullan, ‘Expert Witnesses: Who Plays the Saxophones?’ (1999) 9 Jnl of Judicial Administration 94– 118. P Nicols and M Skinner, ‘Attracting and Preserving Legal Professional Privilege’ (2007) 21(1) Commercial Law Quarterly 3–23. S Odgers and J Richardson, ‘Keeping Bad Science out of the Courtroom — Changes in American and Australian Expert Evidence Law’ (1995) 18 UNSW Law Journal 108– 29. C Wells, Corporations and Criminal Responsibility, 2nd ed, OUP, Oxford, 2001.

1.

See cl 1(2) of Sch 2 to the WHSA 2011, as amended from 1 September 2015 by Sch 14 to the State Insurance and Care Governance Act 2015 (NSW).

2.

R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321; [2006] VSCA 181; BC200607021 at [24]; see also ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; 172 A Crim R 269; [2007] VSCA 138; BC200704924 at

3.

4.

5.

6.

7. 8.

9.

10.

11.

12.

13.

[14] (ABC Learning Centres). B Reeve and R McCallum, ‘The Scope of Employers’ Responsibilities under Australian Occupational Health and Safety Legislation’ (2011) 24 Aust Jnl of Labour Law 189–213 at 199. See, for example, comments of the majority (at [30]): ‘Baiada’s submission was that the prosecution had not established beyond reasonable doubt that it had failed “so far as [was] reasonably practicable” to provide and maintain a safe working environment.’ See also Heydon J: at [55]. In this context the court is referring to the insertion of s 7A into the OHSA 2000 before the enactment of the WHSA 2011. But the effect of s 7A was to replicate the terms of the current legislation, so that the comments apply to the situation under the current Act. See now Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rr 6.2–6.4, made under the Civil Procedure Act 2005 (NSW). Most of the matters dealt with in this part of the chapter dealing with civil litigation are now addressed by specific provisions of the UCPR, but a detailed cross-reference is not necessary for the purposes of this book. Justice R E Cooper, ‘Federal Court Expert Usage Guidelines’ (1998) 16 Australian Bar Review 203–11 at 206. See, for example, the comments in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 and Sydney South West Area Health Service v MD [2009] NSWCA 343, per Allsop P at [53], decrying ‘trial by ambush’ tactics. This principle also operates in criminal litigation, of course, and is discussed below at 13.81 in that context. Interestingly, I am not aware of an attempt to resist production of documents in a civil action on the basis that those documents might reveal commission of an offence against workplace safety criminal litigation. But on general principles it would seem that such an attempt could theoretically be made. For comments on the current rules, and an illustration of how difficult it will be in future to persuade a New South Wales court that the ‘interests of justice’ require a jury in a civil trial, see Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39. In Neale v Commonwealth Bank of Australia Ltd [2015] NSWCA 136 Leeming JA noted (at [27]) that the general policy of the common law was not to allow a jury in appeal proceedings, and this is consistent with the fact that s 85 does not envisage use of a jury by the Court of Appeal. Victoria (Evidence Act 2008 (Vic), which commenced on 1 January 2010), Tasmania (Evidence Act 2001 (Tas)) and the Australian Capital Territory (Evidence Act 2011 (ACT), commenced 1 March 2012) have also now adopted the uniform legislation. For an excellent overview of the uniform legislation see J Anderson, Uniform Evidence Law: Text and Essential Cases, 3rd ed, Federation Press, Sydney, 2016. It would be likely now that Evidence Act s 135(a) would be applicable under which the court ‘may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might … be unfairly prejudicial to a party’. For details see, for example, M Aronson and J Hunter, Litigation: Evidence and Procedure, 5th ed, Butterworths, Sydney, 1995, Ch 17, esp pp 666–73, and

14. 15.

16. 17.

18. 19. 20. 21. 22. 23.

24.

25. 26.

27.

28. 29.

Anderson, note 11 above, Ch 8. This example and the others that follow in fact come from the criminal area, not the civil. But the relevant rules about hearsay evidence are the same. Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 at 359 [10] per French CJ, Heydon and Bell JJ; [2011] HCA 36; Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1978), vol 7, §1917; Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 76 [156]. See R J Kemelfield, Law for Architects, Builders & Engineers — An Introduction, Butterworths, Sydney, 1983, pp 45–6. See the article by I Freckleton and H Selby noted in the Further Reading list at the end of this chapter, which highlights a number of issues in this area that are relevant to accident investigation generally. Further details can be found in the article by S Odgers and J Richardson noted in the Further Reading list at the end of this chapter. HG v R [1999] HCA 2; (1999) 197 CLR 414 at 429 [44] per Gleeson CJ; Morgan v R [2011] NSWCCA 257; (2011) 215 A Crim R 33 at 61 [145] per Hidden J. An application for special leave to appeal to the High Court from this decision was turned down on 31 May 2002. For further comment see M Kumar, ‘Admissibility of Expert Evidence: Proving the Basis for an Expert’s Opinion’ (2011) 33(3) Sydney Law Review 427. For another helpful checklist summarising the elements of admissible expert evidence, see the UK Supreme Court decision in Kennedy, above 13.41, at [52]. See the summary and commentary in A A de Fina, ‘Australian Council of Professions: Guidelines for Expert Witnesses’ (1998) 14 Building & Construction Law 460–2. See Pt 36 r 13C(2). The provisions of Sch K and other aspects of changes to the Supreme Court Rules on expert testimony are discussed in the article by B Madden noted in the Further Reading list at the end of this chapter. For a reaffirmation of this rule see the High Court decision in Kuru v New South Wales [2008] HCA 26. For an interesting discussion of the nature of the offence under the similarly worded former s 136 of the OHSA 2000, relating to obstruction of union officials who were empowered to enter a workplace, see Dalzell v Ferguson [2009] NSWIRComm 81. For a case involving an alleged breach of the Australian Capital Territory legislation allowing union entry to worksites, see Hogan v Riley [2009] FMCA 269, overturned in some respects on appeal in Hogan v Riley [2010] FCAFC 30. For an overview of some of the general issues, and suggestions for change in the law, see A Higgins, ‘Legal Advice Privilege and its Relevance to Corporations’ (2010) 73(3) Modern Law Review 371–98. See WHSA s 31 for the precise definition of Category 1 offences. Categories 2 and 3 offences are defined in ss 32 and 33. Essentially, there was a last-minute amendment made to the Act in the Upper House, preserving to a limited extent some jurisdiction for the Industrial Court of

New South Wales, which had not been initially included in the bill as introduced into parliament. 30.

31.

32. 33. 34.

35.

36. 37.

38.

39.

For further comment on this decision see N Foster, ‘Occupational Health and Safety Prosecutions: John Holland Pty Ltd v Industrial Court of NSW’ (2011) 16(10) Employment Law Bulletin 142–5. The High Court refused an application for special leave: John Holland Pty Ltd v Industrial Court of New South Wales [2011] HCATrans 95. For further consideration of issues relating to the South Australian legislation, see Diemould Tooling Services Pty Ltd v Oaten; Santos Ltd v Markos [2008] SASC 197; it is interesting to note that Doyle CJ there held that one provision of the relevant legislation was a single offence, but another, which was very similar in form to WHSA s 19(3), constituted a series of separate offences: see [19], [20] of the judgment. The High Court refused an application for special leave to appeal this decision: Santos Ltd v Markos; Diemould Tooling Services Pty Ltd v Oaten [2008] HCATrans 372. W Thompson, Understanding NSW Occupational Health and Safety Legislation, 3rd ed, CCH, Sydney, 2001, p 27. D Brown et al, Brown Farrier Neal & Weisbrot’s Criminal Law, 3rd ed, Federation Press, Sydney, 2001, pp 454–5. For further discussion of the difference between strict and absolute liability offences, see the decision in Cahill v New South Wales (Dept of Community Services) (No 3) [2008] NSWIRComm 123 at [150]–[153]. This decision, as noted previously, is a strong affirmation that the ‘general’ offences under the OHSA 2000 were ‘absolute’. The article by Z Lipman and L Roots, although discussing environmental offences rather than safety offences, give a very good discussion of mens rea and other issues in an area that is very similar to the workplace health and safety area: Z Lipman and L Roots, ‘Protecting the Environment through Criminal Sanctions: The Environmental Offences and Penalties Act 1989 (NSW)’ (1995) 12(1) Environmental & Planning Law Jnl 16–36. F Marks, Understanding New South Wales Occupational Health and Safety Legislation, 2nd ed, CCH, North Ryde, 1994, pp 21–4. For an excellent discussion of the mens rea aspects of the WHS legislation, and a number of other matters, see Professor R McCallum, ‘The Role of the Criminal Law in 21st Century Australian Occupational Health and Safety Legislation’ [2005] AMPLA Yearbook 184–98. There was a passing comment by the High Court in Leighton Contractors Pty Ltd v Fox [2009] HCA 35 at [37], referring to duties under OHSA 2000 as ‘obligations of strict liability subject only to the defences set out in s 28 of the OHS Act, proof of which lies on the defendant’ [emphasis added]. But this use of the term ‘strict’ rather than ‘absolute’ should probably be taken to be an obiter comment, as the difference between the two terms noted above was not an issue in the proceedings. The court in Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [107] agreed that the obligation arising under s 8 of the OHSA 2000 was ‘absolute’. This comment would, as noted above in the discussion of s 12A, apply to the

‘general duties’ provisions, although it may not be applicable to the more specific offence provisions. To give another example, it is arguable that in relation to, say, the s 38(7) offence of failing to keep proper records, there might be a defence of ‘honest and reasonable mistake’ if the PCBU found that certain records had not been kept despite careful attempts to put in place a record-keeping procedure. 40. 41.

M Crabtree, ‘Corporate Culpability for Industrial Manslaughter: Finding the “Soul” of the Australian Corporation’ (1994) 22 Australian Business Law Review 376–81. C M V Clarkson, ‘Kicking Corporate Bodies and Damning Their Souls’ (1996) 59 Modern Law Rev 557–72 at 561, n 40.

42. 43.

See D Neal, ‘Corporate Manslaughter’ (1996) 70 Law Institute Jnl 39–41. See the books by J Clough and C Mulhern, and C Wells noted in the Further Reading list at the end of this chapter.

44.

See the recent article by J Clough and C Mulhern noted in the Further Reading list at the end of this chapter. For further discussion of the criminal liability of companies, see J Gobert and A-M Pascal (eds), European Developments in Corporate Criminal Liability, noted in the Further Reading list at the end of this chapter. See especially the article in Ch 5 by R Sarre, ‘Penalising Corporate Culture: The Key to Safer Corporate Activity?’ on the possible application of the Criminal Code provisions.

45.

46.

47.

48.

The Crimes (Industrial Manslaughter) Amendment Act 2003 (ACT), effective 1 March 2004, introduced new Pt 2A into the Crimes Act 1900 (ACT) creating, among other new offences, the offence of ‘industrial manslaughter’ under new s 49C. In New South Wales, rather than a specific ‘industrial manslaughter’ offence, OHSA 2000 s 32A covered similar ground, discussed previously in Chapter 7. For further discussion of some of these issues see N Foster, ‘Manslaughter by Managers: The Personal Liability of Company Officers for Death Flowing from Company Workplace Safety Breach’, noted in the Further Reading list at the end of this chapter. As Heydon J in Kirk (at [114]) notes (see 13.71), Evidence Act 1995 s 190 means that the rule providing that a person is not competent to be called by the prosecution as a witness in their own trial, cannot be waived by agreement of the parties.

49.

Gold refers to the decision of Warren CJ in the Victorian Supreme Court holding that an ‘indirect use’ protection under other legislation was required by the Charter, in Re Application under MC (IP) Act (2009) 24 VR 415. The scheme was slightly different to the current WHSA, under which s 172 does not require a ‘claim’ of privilege to be made; it simply says that questions answered under the compulsory powers given to inspectors are not admissible in subsequent proceedings.

50. 51.

Earlier proceedings at [2000] NSWIRComm 2. (1998) 43 NSWLR 390 (referred to above at 13.83).

52.

Comments in this paragraph relating to the former OHSA 1983 s 50 are equally applicable to the later OHSA 2000 s 26. They are also applicable to the question of how a contravention by a company may now be proved in a WHSA s 27 prosecution.

53.

Per Mason CJ, Deane and Dawson JJ at 392.

54.

This argument is presented in full recognition of the fact that the courts are traditionally much more protective of the rights of the accused than the rights of the prosecutor. Nevertheless, it seems equally likely to cast public doubt on the integrity of the judicial process to countenance the court in a prosecution of a director finding that the company had not committed an offence for which it had been convicted, as it would to allow the company’s guilt to be re-litigated where it had been acquitted. WHSA s 27 seems to require proof of a ‘failure to comply’ with a statutory duty or obligation.

55. 56.

57.

58. 59.

See, for example, Attorney-General (NSW) v Chan [2011] NSWSC 1315 where the court allowed evidence of previous proceedings to be produced to prove, not the facts in issue in the proceedings, but ‘the outcome of the proceedings and the course they had taken’: at [46]. It should be noted, however, that the Full Court’s view is supported by A Palmer, Principles of Evidence, Cavendish, Sydney, 1998, p 195, and by R v Kirkby [2000] 2 Qd R 57. See the comments of Haylen J in Morrison v Milner [2008] NSWIRComm 77 at [51], raising but not resolving the problem. See Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531, and the article by N Foster (2010) on that case in the Further Reading list at the end of this chapter.

[page 669]

APPENDIX 1 THE CONSTITUTION (TABLE OF CONTENTS) TABLE OF PROVISIONS Covering Clause 1. 2. 3. 4. 5. 6. 7. 8. 9.

Short title Act to extend to the Queen’s successors Proclamation of Commonwealth Commencement of Act Operation of the Constitution and laws Definitions Repeal of Federal Council Act Application of Colonial Boundaries Act Constitution

CHAPTER I

THE PARLIAMENT

PART I — GENERAL Section

1. 2. 3. 4. 5.

6.

Legislative power Governor-General Salary of Governor-General Provisions relating to Governor-General Sessions of Parliament Prorogation and dissolution Summoning Parliament First session Yearly session of Parliament

PART II — THE SENATE 7. 8. 9. 10.

The Senate Qualification of electors Method of election of senators Times and places Application of State laws [page 670]

11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Failure to choose senators Issue of writs Rotation of senators Further provision for rotation Casual vacancies Qualifications of senator Election of President Absence of President Resignation of senator Vacancy by absence

21. 22. 23.

Vacancy to be notified Quorum Voting in Senate

PART III — THE HOUSE OF REPRESENTATIVES 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40.

Constitution of House of Representatives Provision as to races disqualified from voting Representatives in first Parliament Alteration of number of members Duration of House of Representatives Electoral divisions Qualification of electors Application of State laws Writs for general election Writs for vacancies Qualifications of members Election of Speaker Absence of Speaker Resignation of member Vacancy by absence Quorum Voting in House of Representatives

PART IV — BOTH HOUSES OF THE PARLIAMENT 41. 42. 43. 44.

Right of electors of States Oath or affirmation of allegiance Member of one House ineligible for other Disqualification

45. 46. 47. 48. 49. 50.

Vacancy on happening of disqualification Penalty for sitting when disqualified Disputed elections Allowance to members Privileges, &c. of Houses Rules and orders [page 671]

PART V — POWERS OF THE PARLIAMENT 51. 52. 53. 54. 55. 56. 57. 58. 59. 60.

Legislative powers of the Parliament Exclusive powers of the Parliament Powers of the Houses in respect of legislation Appropriation Bills Tax Bill Recommendation of money votes Disagreement between the Houses Royal assent to Bills Recommendations by Governor-General Disallowance by the Queen Signification of Queen’s pleasure on Bills reserved

CHAPTER II 61. 62. 63. 64.

THE EXECUTIVE GOVERNMENT

Executive power Federal Executive Council Provisions referring to Governor-General Ministers of State Ministers to sit in Parliament

65. 66. 67. 68. 69. 70.

Number of Ministers Salaries of Ministers Appointment of civil servants Command of naval and military forces Transfer of certain departments Certain powers of Governors to vest in Governor-General

CHAPTER III 71. 72. 73. 74. 75. 76. 77. 78. 79. 80.

Judicial power and Courts Judges’ appointment, tenure, and remuneration Appellate jurisdiction of High Court Appeal to Queen in Council Original jurisdiction of High Court Additional original jurisdiction Power to define jurisdiction Proceedings against Commonwealth or State Number of judges Trial by jury

CHAPTER IV 81. 82. 83.

THE JUDICATURE

FINANCE AND TRADE

Consolidated Revenue Fund Expenditure charged thereon Money to be appropriated by law [page 672]

84. 85.

Transfer of officers Transfer of property of State

86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 105A.

Customs, excise, and bounties Revenue from customs and excise duties Uniform duties of customs Payment to States before uniform duties Exclusive power over customs, excise, and bounties Exceptions as to bounties Trade within the Commonwealth to be free Payment to States for five years after uniform tariffs Distribution of surplus Customs duties of Western Australia Financial assistance to States Audit Trade and commerce includes navigation and State railways Commonwealth not to give preference Nor abridge right to use water Inter-State Commission Parliament may forbid preferences by State Commissioners’ appointment, tenure, and remuneration Saving of certain rates Taking over public debts of States Agreements with respect to State debts

CHAPTER V 106. 107. 108. 109. 110.

THE STATES

Saving of Constitutions Saving of power of State Parliaments Saving of State laws Inconsistency of laws Provisions referring to Governor

111. 112. 113. 114. 115. 116. 117. 118. 119. 120.

States may surrender territory States may levy charges for inspection laws Intoxicating liquids States may not raise forces. Taxation of property of Commonwealth or State States not to coin money Commonwealth not to legislate in respect of religion Rights of residents in States Recognition of laws etc. of States Protection of States from invasion and violence Custody of offenders against laws of the Commonwealth [page 673]

CHAPTER VI 121. 122. 123. 124.

NEW STATES

New States may be admitted or established Government of territories Alteration of limits of States Formation of new States

CHAPTER VII

MISCELLANEOUS

125. Seat of Government 126. Power to Her Majesty to authorise Governor-General to appoint deputies 127. Aborigines not to be counted in reckoning population. Repealed by No. 55, 1967, s. 3

CHAPTER VIII

ALTERATION OF THE

CONSTITUTION 128. Mode of altering the Constitution

[page 675]

APPENDIX 2 THE CONSTITUTION (SELECTED EXTRACTS) Part V — Powers of the Parliament 51 Legislative powers of the Parliament The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) trade and commerce with other countries, and among the States; (ii) taxation; but so as not to discriminate between States or parts of States; (iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth; (iv) borrowing money on the public credit of the Commonwealth; (v) postal, telegraphic, telephonic, and other like services; (vi) the naval and military defence of the Commonwealth

(vii) (viii) (ix) (x) (xi) (xii) (xiii)

(xiv)

(xv) (xvi) (xvii) (xviii) (xix) (xx)

(xxi)

and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; lighthouses, lightships, beacons and buoys; astronomical and meteorological observations; quarantine; fisheries in Australian waters beyond territorial limits; census and statistics; currency, coinage, and legal tender; banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money; insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; weights and measures; bills of exchange and promissory notes; bankruptcy and insolvency; copyrights, patents of inventions and designs, and trade marks; naturalization and aliens; foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; marriage; [page 676]

(xxii) divorce and matrimonial causes; and in relation

(xxiii) (xxiiiA)

(xxiv)

(xxv)

(xxvi)

(xxvii) (xxviii) (xxix) (xxx) (xxxi)

(xxxii)

(xxxiii)

thereto, parental rights, and the custody and guardianship of infants; invalid and old-age pensions; the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; the people of any race, other than the aboriginal race in any State,1 for whom it is deemed necessary to make special laws; immigration and emigration; the influx of criminals; external affairs; the relations of the Commonwealth with the islands of the Pacific; the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; the control of railways with respect to transport for the naval and military purposes of the Commonwealth; the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State;

(xxxiv) railway construction and extension in any State with the consent of that State; (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; (xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides; (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; (xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia; (xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. [page 677]

52

Exclusive powers of the Parliament

The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;

(ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth; (iii) other matters declared by this Constitution to be within the exclusive power of the Parliament.

… Chapter V — The States … 107

Saving of Power of State Parliaments

Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

108

Saving of State laws

Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.

109

Inconsistency of laws

When a law of a State is inconsistent with a law of the

Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. 1.

The struck-out phrase was deleted from the Constitution after a successful referendum approving the Constitution Alteration (Aboriginals) 1967, which received the Royal Assent on 10 August 1967.

[page 679]

APPENDIX 3 CATEGORIES OF LAW1 Figure 3.1:

Categories of law

Comments on the Categories Public Law – Public International Law — deals with the relationships between countries, and issues such as war, diplomacy, border

disputes, etc. –

‘National’ Public Law — Constitutional Law: usually refers in Australia to the relationships between the federal government and the state governments, the distribution of [page 680] powers, and other issues raised by the Australian Constitution. Other issues may include general questions of the structure and functions of government. Administrative Law: Relationships between individuals and government or official bodies. How do I get an official to review their decision? How can I as an individual control or influence the bureaucracy? Criminal Law: In general, deals with the way that the community punishes individuals for breach of certain widely shared standards of behaviour. This area also includes the ‘procedural’ rules of criminal litigation — due process, presumption of innocence, trial by jury, etc. Industrial Law: Relationships between employers and employees at the ‘collective’ level rather than individually. Taxation Law: How the government gets money from individuals, and how individuals try to avoid giving it. Discrimination Law? It is hard to decide whether this should be characterised as ‘public’ or ‘private’. From the public perspective, laws against making irrelevant decisions on criteria such as sex, race or disability clearly reflect important public interests. But a feature of the law is that it allows individuals to receive damages awards where they have been the victim of discrimination, so it may in some respects be seen as part of ‘private’ law.

Private Law

–

–

1.

Private International Law — How the law of one country or jurisdiction affects private interests under the law of another country or jurisdiction: for example, will my foreign marriage be recognised as valid in Australia? Will the contract I made in Peru be enforced in Kenya? ‘National’ Private Law Contract Law: Which agreements between individuals will be enforced by the courts? We may view ‘employment law’ as a sub-category, although it cuts across a couple of other areas. Family Law: What sorts of family structures and relationships are recognised as having legal consequences, and what are those consequences? How does the law regulate marriage, divorce, custody of children, marital property? Property Law: How do individuals exercise control over things and pieces of land? What remedies are available for breaches of these rights? Succession Law: What happens to property and assets and debts when someone dies? How much control can they have over what will happen? Tort Law: What obligations do I have towards other people independent of family ties or specific contracts? What private rights do I have which the law will protect? What remedies are available for injuries? Discrimination Law: As noted above, this can be regarded as an area of ‘private’ law because an award of damages can be made in some cases. Figure 3.1 and the related comments are based on Srivistava, Deklin and Singh, Introduction to Australian Law, LBC Information Services, Sydney, 1996, p 81.

[page 681]

APPENDIX 4 AUSTRALIAN HIERARCHY OF COURTS Figure 4.1:

New South Wales judicial system

Notes: An unbroken arrow represents a possible appeal from one body to the other (though in a particular case an appeal might or might not be possible: for example, the High Court needs to grant ‘special leave’ for some appeals). The dotted arrow represents the fact that there is no formal ‘appeal’ from the Industrial Court to the Court of Appeal, but there is a mechanism for ‘judicial review’ discussed in the text. [page 682] Figure 4.2:

Federal judicial system

[page 683]

APPENDIX 5 OUTLINE OF FEDERAL PARLIAMENTARY PROCEDURE: FROM A BILL TO AN ACT

[page 685]

APPENDIX 6 THE PARTS OF AN ACT OF PARLIAMENT

[page 686]

Key to ‘parts of an Act’ 1.

2.

3.

4.

The Coat of Arms: A purely formal piece of decoration mainly identifying the jurisdiction from which the legislation originates. Here we see that it is the State of New South Wales. The Number and Year: Part of the ‘official’ title of the legislation. Useful to know if you need to find the original Act rather than a reprint (later reprints, in the Australian context, usually incorporate subsequent amendments into the text). Annual volumes of legislation usually arrange the Acts by year and in numerical order. The number represents the order in which it was assented to by the Governor (or the Governor-General for Commonwealth legislation). This Act was the 10th Act that became law in 2011. In an online database of legislation, the original version of the Act as passed by parliament can sometimes be found behind a link such as ‘As Made’ or ‘Numbered Acts’. The latest version will often be labeled ‘Consolidated’. The Long Title: A reasonably full description of what the Act is about and the purposes it hopes to achieve. Has often been used by the courts to resolve ambiguities in the relevant Act, but cannot be used to contradict the plain language of the statute: see Sage v Eicholz [1919] 2 KB 171. The Short Title: Usually spelled out, as here, in section 1. This is the name the Act will be known by, by lawyers, judges, and anyone else who has to refer to it. Surprisingly, there is some debate about how significant the short title is for understanding the purposes of the Act,1 but it is quite likely that a court would refer to it

today if it cast any light on ambiguities in the Act. 5.

6.

The Commencement Provision: This section tells you when the Act starts to ‘bite’: that is, when the provisions become operational. (Note that this will usually not be the date of Royal Assent, for reasons given in the main text.) This one is a rare example of a commencement provision that gives you an actual date up-front; most Acts will allow for commencement by Proclamation by the Governor or Governor-General, and so you will have to search elsewhere to find out what it was.2 In a reprint of the Act a footnote to this section might tell you. In the main text of this chapter there are some other tips for finding commencement dates. The Objects Clause: Not found in every Act, but in major pieces of legislation like this one parliament often goes out of its way to spell out the objects of the legislation in more detail, to provide assistance to the courts in their later interpretation. [page 687]

7.

Definitions Section: One thing that is vital in every Act is this provision (or something similar), which provides a ‘dictionary’ of the meaning of key words used throughout the Act. In some longer Acts (particular those enacted in the 1990s) you will find definitions right at the end, in a section often called ‘Dictionary’.

1.

See MacAdam and Smith, Statutes: Rules and Examples, 3rd ed, Butterworths, Sydney, 1993, pp 68–70.

2.

This provision was taken from the WHS Act 2011 as initially enacted; but in fact prior to its commencement it was further amended by the Work Health and Safety Legislation Amendment Act 2011 (No 67 of 2011) to add the following words at the end of s 1: ‘or on such later day as may be appointed by proclamation before 1 January 2012’. So you still need to check whether there was a relevant

proclamation! In fact there was no such proclamation and the Act did commence on 1 January 2012.

[page 689]

APPENDIX 7 COMPARISON OF OHSA 2000 (NSW) AND WHSA 2011 The following table is not exhaustive, but indicates where the equivalent provisions of the major sections in the OHSA 2000 (NSW) appear in the WHSA 2011. The table may assist in tracking down cases based on the OHSA 2000 that might be used to provide guidance in interpretation of the WHSA 2011. Subject Objects Definitions Duty to employees

OHSA 2000 (section) 3 4 8(1)

WHSA 2011 (section)

Duty to non-employees

8(2), 9

Duty of persons in control of workplaces and plant Duty of manufacturers and designers of plant OHS Committees Duty of employees

10

3 (expressed as one main ‘object’) 4 19 (a duty to ‘workers’ which under s 7(1)(a) includes ‘employees’) 19 (see above — ‘worker’ in s 7 also includes contractors and a wide range of other workplace participants); s 19(2) includes a duty to ‘other persons’ in general 20, 21

11

22, 23

17-18 20

See Pt 5, esp Div 4 (ss 75–79) 28 (‘workers’ — employees and others)

Offences by company officers Defence

26

Civil liability Notification of accidents Inspectors

32 86 Divs 1 and 2 of Pt 5; Pt 6 Part 3 Part 4 Part 7

Regulations Codes of Practice Prosecution for offences

28

to take reasonable care for own safety and for others 27 (‘due diligence’) N/A — because ‘reasonably practicable’ is included in the definition of offences, no analogous general defence is provided 267 Part 3 (ss 35–39) Part 9 276 274–275 Part 13

[page 691]

APPENDIX 8 SELECTIVE COMPARISON BETWEEN WCA 1987 (NSW) AND OTHER STATE LEGISLATION1

[page 692]

[page 693]

Note on types of benefit: There is a detailed table summarising the different forms of

payment and their levels in the publication Comparative Performance Monitoring Report: Comparison of Work Health and Safety and Workers’ Compensation Schemes in Australia and New Zealand, SafeWork Australia, 17th ed, 2015, App 2, Table 2, p 56. The report is available from . 1.

For the names of each Act, see Table 11.1 at 11.2. The summary information in this Table is supplemented in great detail in the publication Comparison of Workers’ Compensation Arrangements in Australia and New Zealand 2015, SafeWork Australia, July 2015, available at . I acknowledge the help I have had from this publication in preparing the table. Note that the Northern Territory legislation changed after the SafeWork publication was finalised; this table refers to the new legislation, the Return to Work Act (NT), which commenced operation in 2015.

[page 695]

RECOMMENDED FURTHER GENERAL READING ON WHS LAW P Bohle and M Quinlan, Managing Occupational Health and Safety: A Multidisciplinary Approach, 2nd ed, Macmillan Publishers, South Yarra, 2000. A Brooks, Occupational Health and Safety Law in Australia, 4th ed, CCH, North Ryde, 1993. — ‘Risk Management and Consultation Systems: Developments and Disappointments in the New Occupational Health and Safety Legislation in New South Wales’ (2002) 24 Sydney Law Review 89. CCH editors (C E Dunn, updating editor), Planning Work Health and Safety, 9th ed, CCH, Sydney, 2012. — Australian Master Work Health and Safety Guide, 2nd ed, CCH, North Ryde, 2014. W B Creighton and N Gunningham, The Industrial Relations of Occupational Health and Safety, Croom Helm, Sydney, 1985. W B Creighton and P Rozen, Occupational Health and Safety Law in Victoria, 3rd ed, Federation Press, Sydney, 2007. C E Dunn, Annotated Australian Work Health and Safety Legislation, CCH, Sydney, 2012. N Ellis, Work and Health: Management in Australia and New Zealand, Oxford University Press, South Melbourne, 2001.

H J Glasbeek, ‘Occupational Health and Safety Law: Criminal Law as a Political Tool’ (1998) 11 Australian Journal of Labour Law 95–119. N Gunningham, ‘Integrating Management Systems and Occupational Health and Safety Regulation’ (1999) 26 Journal of Law and Society 192–214. — Mine Safety: Law, Regulation, Policy, Federation Press, Sydney, 2007. — Safeguarding the Worker: Job Hazards and the Role of the Law, Law Book Co, Sydney, 1984. — and R Johnstone, Regulating Workplace Safety: System and Sanctions, Oxford University Press, Oxford, 1999. A Hopkins, Disastrous Decisions: The Human and Organisational Causes of the Gulf of Mexico Blowout, CCH, Sydney, 2012. — Failure to Learn: the BP Texas City Refinery Disaster, CCH, Sydney, 2008. — Lessons from Gretley: Mindful Leadership and the Law, CCH, Sydney, 2007. — Lessons from Longford: The Esso Gas Plant Explosion, CCH, Sydney, 2000. — Safety, Culture and Risk: The Organisational Causes of Disasters, CCH, Sydney, 2005. — and J Hayes, Nightmare Pipeline Failures: Fantasy Planning, Black Swans and Integrity Management, CCH, North Ryde, 2014. [page 696] Industry Commission, Work, Health and Safety: Inquiry into Occupational Health and Safety (2 Vols), Report No 47, AGPS, Canberra, 1995. R Johnstone, New Directions in Occupational Health and Safety

Prosecutions: The Individual Liability of Corporate Officers, and Prosecutions for Industrial Manslaughter and Related Offences, Centre for Employment and Labour Relations Law, Melbourne, 1996. — (ed), Occupational Health and Safety Prosecutions in Australia: Overview and Issues, Centre for Employment and Labour Relations Law, Melbourne, 1994. — ‘Paradigm Crossed? The Statutory Occupational Health and Safety Obligations of the Business Undertaking’ (1999) 12 Australian Journal of Labour Law 73–112. —, E Bluff and A Clayton, Work Health and Safety Law and Policy, 3rd ed, Lawbook Co, Pyrmont, 2012. — and M Tooma, Work Health and Safety Regulation in Australia: The Model Act, Federation Press, Sydney, 2012. J Kennedy, Work Health and Safety: What You Need to Know, LexisNexis Butterworths, Sydney, 2012. F Marks, D Dinnen and L Fieldus, The New Work Health and Safety Legislation: A Practical Guide, Federation Press, Sydney, 2013. Parliament of New South Wales, Legislative Council, Standing Committee on Law and Justice, Final Report of the Inquiry into Workplace Safety, Report No 10, November 1998, 2 Vols. Productivity Commission, National Workers’ Compensation and Occupational Health and Safety Frameworks, Report No 27, Canberra, 2004. M Quinlan, Ten Pathways to Death and Disaster: Learning from Fatal Incidents in Mines and Other High Hazard Workplaces, Federation Press, Sydney, 2014. K Richardson, Work Health and Safety, Lawbook Co Nutshell, Lawbook Co, Pyrmont, 2014. B Sherriff and M Tooma, Understanding the Model Work Health and Safety Act, CCH, North Ryde, 2010. W Thompson, Understanding New South Wales Occupational Health and Safety Legislation, 3rd ed, CCH, North Ryde, 2001.

M Tooma, Safety, Security, Health and Environment Law, 2nd ed, Federation Press, Sydney, 2011. — Tooma’s Annotated Work Health and Safety Act 2011, Lawbook Co, Pyrmont, 2012. The looseleaf and online service provided by LexisNexis Butterworths, National Work Health and Safety Law provides regular updates on the harmonised legislation and developments around Australia.

INDEX References are to paragraphs Numbers A Anti-Discrimination Act 1977 (NSW) (ADA) see also Discrimination disability discrimination ‘characteristics extension’ provisions …. 12.13, 12.72 DDA amendment …. 12.14 disability grounds …. 12.8, 12.55–12.56 discrimination, definition of …. 12.8–12.12 enforcement …. 12.18–12.20 exemptions under …. 12.17 ‘inherent requirement’ of position …. 12.27–12.37 application …. 12.32 other legislation, inconsistency with …. 12.38–12.56 precise terms, reading …. 12.5 principles and employers, liability …. 12.78 scope …. 12.4 Australian Constitution authority …. 1.24 parliamentary …. 1.24 separation of powers …. 1.62–1.63 unconstitutional (RDA) enforcement …. 12.20 structure …. 1.25–1.27 Australian legal system Australian Constitution

authority …. 1.24 Commonwealth, limits on …. 2.19–2.23 explicit limits under …. 2.20–2.21 former limits …. 2.24 implied freedoms …. 2.22 implied limits under …. 2.22 separation of powers …. 1.62–1.63, 12.20 states, limits on …. 2.23–2.24 structure …. 1.25–1.27 common law judicial/parliamentary changes …. 1.46 presumptions …. 2.59–2.68 courts system authority rules …. 1.64–1.76 committal proceedings …. 1.53 consideration of context …. 2.54 criminal–civil divide …. 1.4 federal …. 1.56–1.60, 1.62–1.63 judicial hierarchy …. 1.69–1.72 legislation interpretation …. 2.37–2.78 maxims use …. 2.54–2.57 overruling …. 1.73–1.76 specialist tribunals …. 1.61 state …. 1.53–1.55 development …. 1.22 English law in …. 7.6–7.9 Constitutional principles …. 1.14–1.27 customary law of original inhabitants …. 1.50–1.51 paramount Imperial legislation …. 2.24

reception …. 1.48–1.49 ‘substantive’ law …. 1.47–1.51 federal Constitutions, state power, limits on …. 2.12–2.18 law …. 1.2–1.5 categories …. 1.29–1.32 Commonwealth–state inconsistency …. 2.13–2.18 discrimination law framework …. 12.3–12.20 historical perspectives …. 1.14–1.27 law–other obligations, distinction …. 1.3 private law–public law, distinction …. 1.30–1.31 procedural law (authority law) …. 1.5 as WHS tool …. 1.10–1.12 law, sources see also Legislation common law see Common law ‘source’ as ‘history’ or authority …. 1.34–1.35 statutes …. 1.36–1.46, 2.1–2.78, 2.37, 2.54 legislation consultative impact statements …. 2.35 court interpretation of …. 2.37–2.78 delegated …. 2.27–2.36 early Australian …. 7.10 intergovernmental immunity …. 2.22 reading …. 2.25–2.26 subordinate …. 2.34 see also Legislation: delegated workers’ compensation legislation …. 11.2 parliament constitutional authority …. 1.24 qualified parliamentary supremacy …. 1.19–1.21

parliaments, limits on federal …. 2.12–2.18 parliamentary delegation limits …. 2.31–2.32 state …. 2.11 state Constitutions entrenched provisions …. 2.11 state power, limits on …. 2.11 Western legal system characteristics in authority …. 1.9 autonomy …. 1.7 centrality …. 1.8 B Breach of statutory duty (BSD) action elements …. 6.4 contributory negligence and …. 6.41–6.45 civil action for …. 6.2–6.3, 6.25–6.27, 6.36–6.39, 10.2, 10.6 class of people, benefit of …. 6.21–6.24 contributory negligence …. 6.41–6.45 defendant breach …. 6.32–6.35 defendant obligation …. 6.28–6.31 elements …. 6.4 parliamentary intention/guidance—civil right …. 6.5–6.20 damages, limitations on see Damages defined …. 6.1–6.3 harm causation to plaintiff …. 6.36–6.39 within statute-covered danger …. 6.25–6.27 limitations …. 6.46

‘persons actually carrying out’ certain work …. 6.30–6.31 power to detain …. 6.19–6.20 vicarious liability of employers …. 6.28 Business operators obligations under WHSA …. 9.6, 10.9 safety duties owed by …. 7.46–7.60, 8.1–8.52, 10.9, 10.11–10.12 further duties …. 7.33–7.34 types of …. 8.3–8.5 workplace and plant control obligations …. 8.3–8.10 C Civil liability company directors’ …. 4.87–4.89 government inspectors’ …. 4.79–4.86 manufacturers’ …. 4.73–4.78 occupiers’ (of premises) …. 4.71–4.72, 5.25, 5.27 ‘default’ liability under FSIA …. 10.3 Civil litigation commencing proceedings …. 13.9 appearance, entry of …. 13.12 parties involved in …. 13.14 plaintiff’s burden of proof …. 13.28 pleadings …. 13.13 statement of claim …. 13.10–13.11 common knowledge …. 13.52 criminal litigation, distinction …. 13.2–13.8 evidence admissible …. 13.31–13.39, 13.47–13.51 exclusion of …. 13.35–13.39

expert opinion …. 13.41–13.46, 13.52–13.54 hearsay rule …. 13.35–13.38, 13.47 inadmissible …. 13.31–13.39 incriminating …. 13.20 opinion …. 13.39, 13.47–13.51 order in hearing …. 13.28 ‘original’ versus ‘expert’ …. 13.41 principles …. 13.29–13.56 relevance …. 13.32–13.34 subpoena …. 13.30 expert evidence, reception conditions …. 13.42–13.46 expert witness court-appointed …. 13.55 role of …. 13.40–13.56 ‘witness’ not ‘advocate’ …. 13.54 hearing judge and jury, role of …. 13.26 open court …. 13.27 submissions and evidence order …. 13.28 judge bias …. 13.24–13.25 court allocation …. 13.23 impartiality of …. 13.24–13.25 role in hearings …. 13.26 objections to discovery and interrogatories grounds for …. 13.18–13.22 incriminating evidence …. 13.20 legal professional privilege …. 13.19, 13.60–13.62 oppression …. 13.21

public interest …. 13.22 parties …. 13.14 pre-trial procedures discovery …. 13.16 general principle …. 13.15 interrogatories …. 13.17 objections …. 13.18–13.22 previous exclusions …. 13.52–13.53 ultimate issue …. 13.53 Common law …. 1.13 cases …. 1.37–1.39 common law rights–workers compensation intersection …. 11.120 court system …. 1.52–1.76 court-based …. 1.42 subject to precedent …. 1.45 defamation/freedom of speech …. 2.22 doctrine of precedent shaping …. 1.45 duplicity, rule against …. 13.67–13.68 employee claims, limitations to rights …. 5.86 foundational law …. 1.44 implied contract terms …. 3.23, 3.83, 3.86–3.87 inductive rules …. 1.43 judicial/parliamentary change to …. 1.46 presumptions against interference with ‘fundamental rights’ …. 2.60–2.61, 2.67 against retrospective operation …. 2.62 ‘shall’ and ‘may’ use …. 2.68

strict construction of penal provisions …. 2.67 that legislation does not bind Crown …. 2.65 that re-enactment constitutes approval of previous interpretation …. 2.63–2.64 purposive interpretation approach at …. 2.48, 7.27 statutes …. 1.36–1.40 commencement provisions …. 2.70 definitions sections …. 2.52 gender, number, personality and time provisions …. 2.71–2.74 implied contract terms …. 3.88 Latin maxims …. 2.53–2.57 non-‘self-executing’ …. 2.37 referencing …. 1.40 statutory interpretation rules …. 2.48–2.50, 2.69–2.74 contextual considerations …. 2.51–2.58, 7.24 parliamentary intention …. 2.39 presumptions …. 2.59–2.68 traditional and contemporary …. 2.40–2.47, 2.76–2.78 Commonwealth …. 2.29 Commonwealth law–state law inconsistencies …. 1.26, 2.13–2.18 constitutional limits on legislative power …. 2.19–2.23 narrow delegation …. 2.29 legislation regarding discrimination …. 12.3 legislative instruments …. 2.33, 2.35 Productivity Commission DDA recommendations …. 12.36 Statute of Westminster adoption …. 2.24 Company officers see Directors

Contract of employment see also Contracts; Employment relationship award provisions …. 3.89–3.90 binding …. 3.42 consequences of …. 3.91–3.108 duties of employee to employer duty of attendance …. 3.106 duty of care and competence …. 3.102–3.105 duty of good faith …. 3.107–3.108 duty to obey lawful and reasonable orders …. 3.99–3.101 duties of employer to employee duty of mutual trust and confidence …. 3.97 duty to indemnify …. 3.96 duty to pay wages …. 3.92 duty to provide safe workplace …. 3.95 duty to provide work …. 3.93–3.94 duties of employer to third parties …. 3.109–3.131 mutuality of obligation …. 3.48 termination disability discrimination …. 12.15 under general law …. 3.142–3.148 statutory regulation …. 3.149 terms …. 3.78–3.90 common law implied …. 3.83, 3.86–3.87 ‘express’–‘implied,’ distinction …. 3.79–3.81 implied ‘in fact’ …. 3.23, 3.82–3.85 statutorily implied …. 3.88 Contractors see Employees and workers: contractors Contracts …. 3.41–3.77 see also Contract of employment

capacity to enter into bankrupts …. 3.59 companies …. 3.61 mental disability and intoxication of persons …. 3.58 minors …. 3.57 unincorporated associations …. 3.60 construction sites (CSR) …. 10.10 defined …. 3.42 ‘contract of service’–‘contract for services’, distinction …. 3.9, 11.8 discharge circumstances by agreement …. 3.144 under general law …. 3.142–3.148 by operation of law …. 3.148 by performance …. 3.143 through breach …. 3.146–3.147 through frustration …. 3.145 ‘formal’–‘informal’, distinction …. 3.83 formation prerequisites acceptance …. 3.44–3.46 capacity …. 3.56–3.61 consideration element …. 3.47–3.48 intention to be bound …. 3.49–3.55 legality …. 3.62 offer …. 3.43 harsh terms …. 3.73 ‘intention to create legal relations’ element …. 3.25, 3.49 invalidating circumstances duress, physical and economic …. 3.67–3.69

formal factors—unwritten contracts …. 3.64 mistake …. 3.65–3.66 unconscionable behaviour …. 3.73–3.76 undue influence …. 3.70–3.72 unenforceability …. 3.62 unfair contracts …. 3.77 ‘postal acceptance rule’ …. 3.45–3.46 presumptions …. 3.50, 3.53–3.54 special disability or disadvantage …. 3.74 statutory review of …. 3.77 unconscientious use of superior position …. 3.73 Criminal liability see also Civil liability; Vicarious liability enforcement, other options …. 9.52 liability, ‘strict’ versus ‘absolute’ …. 13.71–13.73 mitigation of penalty …. 9.41–9.47 community standing and reputation …. 9.46 cooperation …. 9.47 expression of contrition …. 9.45 financial situation of defendant …. 9.43 past industrial safety record of accused …. 9.42 remedial action …. 9.44 prosecutions, venues for …. 9.33 ‘reasonable practicability’ defence …. 4.2, 6.33–6.34, 7.35–7.39, 8.52, 9.9–9.19, 10.7, 12.47 Criminal litigation civil litigation, distinction …. 13.2–13.8 public prosecution …. 13.3 standard of proof …. 13.4–13.8 corporations, prosecution of …. 13.73–13.78

contravention, proof of …. 13.87–13.88 evidence, inadmissible against officers; admissible against company? …. 13.89–13.90 self-incrimination privilege …. 13.82–13.90 crime, investigation of …. 13.57–13.64 breach of conditions for …. 13.63–13.64 legal professional privilege …. 13.19, 13.60–13.62 police investigative powers, limitations …. 13.57 criminal law rules ‘beyond reasonable doubt’ …. 3.50, 13.6–13.8 presumption of innocence …. 13.5 defence rights and obligations generally …. 13.80 self-incrimination privilege …. 13.81–13.83 directors, prosecution of evidence, inadmissible and admissible …. 13.89–13.90 self-incrimination privilege …. 13.84–13.90 duplicity …. 13.67–13.68 evidence exclusion of …. 13.63 illegal/improperly obtained …. 13.63 inadmissible against officers; admissible against company? …. 13.89–13.90 initiation of proceedings …. 13.65–13.66 liability, ‘strict’ versus ‘absolute’ …. 13.69 mens rea (guilty mind) …. 13.7, 13.69–13.76 offences application …. 13.71 ‘strict’ versus ‘absolute’ liability …. 13.69, 13.71–13.73 prosecutor rights and obligations …. 13.79 prosecutor roles

community action …. 13.3 onus of proof—beyond reasonable doubt …. 13.6–13.8, 13.28 D Damages aggravated …. 5.66 civil liability claims Civil Liability Act 2002 (NSW) (CLA) …. 4.31–4.68, 5.94–5.100 contributory negligence …. 5.100 foreseeability …. 5.8, 5.98–5.99, 6.35 common law claims, limitations …. 5.86–5.93 compensatory …. 5.71 ‘damage’–‘damages’, distinction …. 5.65 discrimination claims …. 12.19 employee claims, limitations economic loss …. 5.71, 5.90 pain and suffering …. 5.89 third party actions …. 5.93 time limits …. 5.74, 5.91–5.92 exemplary …. 5.67–5.70, 5.92 limitations on …. 5.86–5.100 limitation generally …. 5.73 one ‘bite of the cherry’ …. 5.73 reforms …. 5.86 statute of …. 5.74–5.76 measure of …. 5.65–5.71 reducing or spreading …. 5.77–5.100

contributory negligence …. 3.87, 5.78–5.81, 13.33 joint tortfeasors …. 5.78, 5.82–5.83, 5.93 voluntary assumption of risk …. 5.84–5.85 Workers Compensation Act 1987 (NSW) (WCA) …. 5.87–5.93 benefit variation …. 11.114 common law principles, other modifications …. 5.91–5.92 economic loss …. 5.90 insurance …. 11.115–11.118 non-economic loss …. 5.71, 5.89, 11.108–11.109 pain and suffering …. 5.89, 11.109 third party actions …. 5.93 time limits …. 5.74, 5.91–5.92 Directors ‘concerned in management’ …. 8.27–8.31 due diligence defence of …. 8.42–8.50 definition …. 8.41 ‘ensure,’ meaning of …. 8.51–8.52 obligations …. 8.19–8.21, 8.41 financial standing of company and …. 8.34 informal appointment …. 8.32–8.33 non-employees, safety of …. 6.24, 8.6–8.8 partnerships and …. 8.23 personal liability …. 8.18–8.52 due diligence provision …. 8.41–8.50 general WHSA provisions …. 8.19–8.21 government officers …. 8.40 insurance for …. 8.18 law of companies (corporations) and …. 8.19

‘officer’ definition …. 8.22–8.23 possible …. 4.87–4.89 ‘volunteer officers’ exception …. 8.36–8.39 prosecution of …. 13.84–13.90 unincorporated associations …. 3.60, 8.37–8.39 Discrimination see also Anti-Discrimination Act 1977 ADA-defined discrimination direct discrimination …. 12.9–12.10 on ground of disability …. 12.8 indirect discrimination …. 12.11 Australian law framework …. 12.3–12.20 direct …. 12.9–12.10, 12.66 based on danger to reproductive health …. 12.65–12.73 ‘reasonable adjustment’ …. 12.14 disability discrimination …. 12.46 perceived existence of …. 12.13, 12.72 exemption options …. 12.24–12.25 ‘failure to make adjustments’ as …. 12.14 gender …. 12.65 ‘indirect’ …. 12.11, 12.57–12.64 examples …. 12.12 racial discrimination context …. 12.60, 12.62–12.63 legislation regarding Commonwealth laws …. 12.3 directly discriminatory …. 12.22 general exemptions …. 12.16–12.17 general scheme …. 12.7–12.20 merit-based …. 12.2

‘protective’ legislation …. 12.22 state …. 12.4–12.5 state–federal interaction …. 12.6 people with mental disability …. 12.50–12.55 racial …. 12.60, 12.62–12.63 sexual harassment …. 12.74–12.79 meaning …. 12.74 policy …. 12.79 situational prohibition (SDA) …. 12.74 unlawful …. 12.10, 12.15, 12.23 remedies …. 12.18–12.20 WHS law …. 12.21–12.73 ‘authorised’ to discriminate …. 12.41 decision justified by general exemptions …. 12.26–12.56 discrimination law inconsistency …. 12.23–12.56 sexual harassment issue …. 12.76 E Employees and workers see also Contract of employment; Employers; Employment relationship; Health and safety duties common employment doctrine …. 4.9, 11.2 contractors duty of care owed to …. 3.140, 4.17–4.28 employee, distinction …. 2.50, 3.8–3.40, 3.21, 3.23 independent …. 3.8–3.40, 3.132–3.140, 7.31, 7.40 liability for actions …. 3.135–3.139 other persons, duties owed to …. 7.45, 7.47–7.52 status …. 3.132–3.140

vicarious liability …. 3.132–3.140 course of employment …. 3.115–3.130 duty of care owed to …. 3.86, 4.7–4.16 employees ‘control’ test for …. 3.10–3.11, 3.25 disability discrimination …. 12.15 emerging ‘own business’ test for …. 3.26–3.27 ‘employee’, FSIA definition …. 10.3 employment status …. 3.7, 3.10–3.30, 3.36–3.40 exploitation of children …. 7.6–7.7, 7.9 guarding against carelessness of …. 5.23–5.33 independent contractor, distinction …. 2.50, 3.8–3.40, 3.21, 3.23, 7.31, 7.40 intentional wrongdoing …. 3.119–3.130 labour hire firms …. 4.10, 7.41–7.42 more than one employer? …. 3.5–3.7 ‘organisation’ test for …. 3.12 property damage …. 4.28 Stevens approach …. 3.13–3.20, 3.26–3.27 vicarious liability …. 3.131, 12.77 vulnerable …. 5.20–5.21 workplace safety, involvement in …. 7.11–7.12, 7.29 ‘persons actually carrying out’ certain work …. 6.30–6.31 tort law …. 3.114–3.130 workers ‘contumelious disregard’ for worker’s safety …. 5.69 disability discrimination …. 12.15 injured workers returning to work …. 11.123 labour hire workers …. 3.21–3.25, 4.20, 7.41–7.42,

11.9–11.10 meaning and definition of (WHSA) …. 3.3, 7.33–7.34 miscellaneous obligations …. 9.5 reasonable care …. 9.2 safety duties of …. 9.1–9.8 WIMWCA definitions of …. 11.7–11.13 work groups, HSR election …. 7.29 workplace safety, involvement in …. 7.29 Employers see also Business operators; Employees and workers; Employment relationship; Health and safety duties breach of duty see Breach of statutory duty duty of care to employees …. 3.86, 4.7–4.16 liability breach of statutory duty …. 6.28 criminal law vicarious liability …. 3.5, 3.31, 3.131 principles and employers …. 12.78 ‘self-insurers’, legislative changes …. 2.16 standard of care expected of employee carelessness, guarding against …. 5.23–5.33 especially vulnerable employees …. 5.20–5.21 ‘obvious risks’, relevance of …. 5.34–5.39 safety procedures, enforcing …. 5.22 third parties, duties to …. 3.109–3.131 WIMWCA ‘employer’ definition …. 11.15 workers compensation benefits contributions …. 11.15 Employment contract see Contract of employment Employment relationship …. 3.2–3.7, 4.16 see also Contract of employment; Employees and workers; Employers ‘artificial’ …. 3.31

common law consequences …. 3.2 discrimination in the workplace see also Discrimination reasonable accommodations …. 12.14, 12.37, 12.64 employment indicia …. 3.14, 3.20, 3.25, 11.8 employment status …. 3.7, 3.10–3.30, 3.36–3.40 change over time …. 3.28–3.30 employment versus independent contract …. 3.10–3.27 list extract …. 3.25 general nature …. 3.78 labour hire firms …. 3.21–3.25, 4.10 principles underpinning …. 3.41–3.77 secondment …. 3.33–3.34 temporary transfer of employment …. 3.31–3.35 pro hac vice …. 3.30–3.34 English legal system Australian reception …. 1.48–1.49 customary law of original inhabitants …. 1.50–1.51 due process principle …. 1.16 parliamentary supremacy …. 1.19–1.21 rule of law …. 1.15 separation of powers …. 1.17–1.18, 2.29, 12.20 H Health and safety duties see also Injury; Negligence; Work Health and Safety Act 2011 breach of statutory duty …. 6.1–6.46, 10.2, 10.6 business operators see Business operators civil law and, negligence …. 5.1–5.100 Construction Safety Act 1950 (NSW) (CSA) …. 10.2,

10.10–10.11 Construction Safety Regulations 1950 (CSR) …. 10.10 discrimination and see also Discrimination EOA protection of health, safety and property …. 12.25 ‘indirect’ discrimination …. 12.57–12.64 legislative approaches …. 12.23 WHS decisions, exemption options …. 12.24–12.25 WHS law inconsistency …. 12.23–12.56 WHS requirements …. 12.57–12.64 WorkSafe …. 12.67–12.68 due diligence defence of …. 8.42–8.50 definition …. 8.41 ‘ensure’, meaning of …. 8.51–8.52 obligations …. 8.19–8.21, 8.41 duty of care …. 4.1–4.102 duty to consult …. 9.6 enforcement of …. 9.20 see also Work Health and Safety Act 2011 inspectors, power of …. 9.34–9.37 reckless conduct …. 9.25–9.32 equipment, fencing dangerous machinery …. 7.8–7.9 Factories Shops and Industries Act 1962 (NSW) (FSIA) …. 7.10, 10.2 direct inconsistency …. 2.13 ‘factory’, definition …. 10.3 ‘indirect’ discrimination and retrenchments …. 12.12 OHSR 2001 and …. 10.4 ‘protective’ legislation …. 12.22

scope …. 10.3 general law and …. 11.1–11.123 harm …. 6.25–6.27, 6.36–6.39, 7.28 see also Injury foreseeability of …. 4.6, 4.47–4.48, 9.29 self-harm …. 4.49–4.50 hazard facilities …. 10.12 hazardous work …. 10.12 injury–employment connections …. 11.40–11.102 law as tool for …. 1.10–1.12 compensation and prevention areas …. 1.13, 7.2–7.4 legislation early Australian …. 7.10 former …. 10.1–10.2 UK factories legislation …. 7.6–7.9 litigation see Civil litigation; see Criminal litigation manufacturers, obligations of …. 8.12 mental illness …. 6.19–6.20 Model Law of see Work Health and Safety Act 2001: Model Law non-employees, safety of …. 6.24, 8.6–8.8 Occupational Health and Safety Regulation 2001 (OHSR 2001) construction work …. 10.10 direct breach versus ‘failing to ensure’ safety …. 10.16 ‘factory,’ definition …. 10.4 foreseeable hazards …. 6.24 hazards identification …. 10.14 ‘penalty notice’ provisions …. 10.7 plant designers’ obligations …. 10.5 risk assessment …. 10.15–10.16

risk control …. 10.17–10.19 risk management provisions …. 10.14–10.20 ‘sufficient working space’ …. 10.6 ‘Working Environment’ …. 10.8 officers see Directors other persons …. 7.47–7.52, 9.4 persons conducting a business or undertaking see Business operators plant authorisation requirements …. 9.8 duties associated with …. 8.11–8.17 ‘plant’, meaning of …. 8.9 safety of …. 8.11–8.17 reproductive health, discrimination and …. 12.65–12.73 risk assessment …. 10.20, 10.23 of death or serious injury …. 9.25–9.32 elimination or control …. 5.15, 7.28, 10.4, 10.6–10.7, 10.23, 10.25–10.26 hazards and identification …. 6.17–6.18, 10.14, 10.23 identifiable …. 7.38–7.39 ‘increased risk’, causation by …. 5.57–5.64 justifying …. 12.28 management …. 6.17–6.18, 7.56, 8.51, 10.12, 10.21–10.23 material contribution …. 5.59–5.60 ‘obvious risks’ …. 5.32, 5.34–5.39 pregnancy and breastfeeding as exclusion criteria …. 12.67–12.68, 12.70 voluntary assumption (volenti non fit injuria) of …. 5.84–5.85

Robens Report …. 2.3, 7.11–7.12, 7.35, 7.40 Australian implementation …. 7.13–7.14 ‘Robens-style’ legislation …. 7.13–7.14, 10.2 worker involvement (in safety) …. 7.29 Safe Work Australia …. 13.3 safety committees and representatives …. 7.25, 7.29, 10.12 ‘contumelious disregard’ for worker’s safety …. 5.69 as discrimination justification …. 12.49 ‘inherent requirement’ of position …. 12.27–12.37 legal approaches …. 7.4 safety procedures, enforcing …. 5.22 strategies—compensation; prevention …. 7.2–7.4 sexual harassment …. 12.74–12.79 implications …. 12.75 shared responsibility …. 9.7–9.8 substances authorisation requirements …. 9.8 safety of …. 8.11–8.17 WHS Representatives and Committees …. 7.25, 7.29, 10.12 Williams Report …. 7.12 I Independent contractors see Employees and workers: contractors Injury see also Workers compensation death lump sum payment …. 11.110 risk of death or serious injury …. 9.25–9.32

self-inflicted …. 6.19–6.20, 11.85 disease also might be ‘injury’ …. 11.20–11.29 early decisions …. 11.21 mutually exclusive …. 11.20, 11.23–11.29 Privy Council decision—if disease, not injury …. 11.22 Zickar decision and reaffirmation—not mutually exclusive …. 11.23–11.29 dust diseases …. 11.18 gradual onset diseases, provisions for …. 11.32–11.35 incapacity …. 11.104–11.107 industrial accidents/injury …. 7.8 ‘injury,’ WCA definition …. 11.17 injury–employment connections …. 11.40–11.102 causal link …. 11.42–11.44, 11.46 general connection …. 11.41–11.85 post-January 1997 connection …. 11.86–11.102 substantial connection …. 11.40, 11.44, 11.88, 11.91–11.94 temporal link …. 11.45–11.87 joint tortfeasors …. 5.78, 5.82–5.83, 5.93 ‘out of or in the course of’ (employment) …. 4.9, 11.17 assaults …. 11.52–11.53 ‘in the course of’ and statutory extensions …. 11.45–11.87 deemed …. 11.58–11.59 educational leave …. 11.49 ‘a frolic of his own’ (frolics) …. 11.54–11.57 general (temporal) principle …. 11.47 lunch/rest breaks …. 11.50–11.51 ‘out of’ …. 11.42–11.44 ‘out of’ but not ‘in’ …. 11.46

serious and wilful misconduct exceptions …. 11.64–11.65, 11.78–11.87, 11.81, 11.83 statutory extensions …. 11.58–11.77 permanent impairment compensation entitlements …. 11.108 degree of …. 5.90 personal …. 3.31, 4.28 definition …. 11.31 ‘eggshell skull’ …. 4.32, 5.56 exemplary damages abolishment …. 5.70 heart attack and stroke claims attributed to …. 11.30 ‘out of or in the course of’ employment …. 11.41–11.85 physical …. 4.32–4.61, 5.66, 7.28 preventable …. 5.12 psychological see also Negligence, 4.31–4.61, 4.62–4.68, 7.28, 11.31, 12.75 restrictions …. 11.36–11.39 serious and permanent disablement …. 11.82, 11.84 stress …. 4.52–4.53, 4.56–4.61, 12.75 stress-related psychological injuries …. 11.36–11.39 types …. 11.19 L Legislation ‘associated legislation’ …. 10.2 assumptions regarding power—‘shall’ and ‘may’ …. 2.68 bills government bills–private bills, distinction …. 2.6 Royal Assent and commencement …. 2.8–2.9, 2.70

to statutes …. 2.6–2.9, 2.70 Commonwealth law–state law inconsistencies covering the field doctrine …. 2.14–2.18, 12.6 direct inconsistency—non-simultaneous obedience …. 1.26, 2.13 court interpretation of …. 2.1–2.78 delegated consultation requirements …. 2.35 control mechanisms …. 2.30–2.36 defined …. 2.28 parliamentary committee supervision …. 2.34 validity of …. 2.29 demand for …. 2.3 ‘double dissolution’ …. 2.7 drafting …. 2.5 extra-legislative materials …. 2.75–2.78 extra-territorial law …. 2.11 harmonisation …. 1.24, 2.3, 2.36, 7.19, 7.25, 11.5 interpretation contextual rules …. 2.51–2.58, 7.24 courts, role of …. 2.37–2.78 ejusdem generis maxim …. 2.55 expressio unius est exclusio alterius maxim …. 2.56 general rules …. 2.59–2.68 generalia specialibus non derogant maxim …. 2.57 legality principle …. 2.60–2.61 legislative rules …. 2.69–2.74 ‘literal’ …. 2.41–2.42 noscitur a sociis maxim …. 2.54, 2.64

parts of …. 2.58 purposive approach …. 2.48–2.50, 7.27 reading …. 2.25–2.26 interpretive language golden rule …. 2.44–2.45 literal rule …. 2.40–2.43 mischief rule …. 2.46–2.47 invalidated …. 2.22 making …. 2.2–2.9 purposive approach, at common law …. 2.43 ‘regulatory impact’ statements …. 2.35 paramount Imperial legislation …. 2.24 procedural requirements conformance …. 2.33 provisions construction …. 2.66–2.67 re-enactment …. 2.63–2.64 retrospective operation …. 2.62 ‘Robens-style’ …. 8.51, 10.2 state/territory OHS laws exclusion …. 2.16–2.17 WHS legislation …. 7.13, 7.21 ‘sunset’ …. 2.36 ‘Work Choices’ legislation …. 2.20 M Model Law see Work Health and Safety Act 2011 N Negligence see also Health and safety duties; Vicarious liability Asbestos Rule …. 4.100–4.103 background …. 4.3–4.4

breach of duty and see Breach of statutory duty calculus (for determining) …. 4.2, 5.10–5.18 danger of precautions …. 5.14, 5.31 carelessness …. 3.137, 4.13, 5.3, 5.23–5.33 res ipsa loquitur doctrine …. 5.40–5.41 causation …. 5.43–5.54, 5.59, 5.62 ‘but for’ test …. 5.43–5.44 chain of …. 5.26, 5.46–5.49, 5.58, 6.36 epidemiological evidence …. 5.64 by ‘increased risk’ …. 5.57–5.64 modified …. 5.61 not established …. 5.50–5.52 combat-related …. 5.84–5.85 company directors’ …. 4.87–4.89 contractors and others, duty to …. 4.17–4.28 contributory …. 3.87, 5.78–5.81, 5.92, 5.100, 6.15, 6.41–6.45, 13.33 complete-to-partial defence …. 6.41–6.43 course of employment and …. 3.115–3.118 damage ‘damage’–‘damages’, distinction …. 5.65 ‘general type’ of …. 5.56 remoteness of …. 5.55–5.57 damages see Damages defective product, liability for …. 4.73–4.78 disease claims causation and …. 5.57–5.64 statute of limitations and …. 5.72–5.76 duties of employer to third parties …. 3.109–3.131

duty of care owed establishing other cases …. 4.90–4.104 generally …. 4.5 inter-party relationship …. 4.91–4.94 law, ‘incoherence’ of …. 4.98 non-delegable …. 3.121, 3.135–3.139, 4.8, 4.10–4.16, 6.29 proximity …. 4.90–4.91 specific situations …. 4.5–4.89 economic loss caused by …. 4.69–4.70, 5.71 elements …. 4.4 foreseeability …. 4.2, 4.6, 4.36, 5.4–5.9, 9.2 subjective (of harm) …. 9.29 generally …. 4.1–4.4 government inspectors and …. 4.79–4.86 ‘policy’–‘operational’ decisions, distinction …. 4.83 neighbour principle …. 4.3 non-delegable duty (NDD) …. 3.121, 3.135–3.139, 4.8, 4.10–4.17, 4.72, 6.29 occupier’s (of property) liability …. 4.71–4.72, 10.3 personal injury and property damage …. 4.6–4.28 duty to employees …. 3.86, 4.7–4.16, 4.28 personal or vicarious breach …. 5.3 physical injury …. 5.66 psychological injury caused by …. 4.32 psychological injury not caused by …. 4.33–4.61 premises occupier’s liability …. 4.71–4.72, 5.25, 5.27, 10.3 safe maintenance of …. 7.50 supplier’s liability for defective …. 4.73–4.78

psychological injury …. 4.29–4.30, 4.32–4.61, 11.36–11.39, 12.75 from being a ‘rescuer’ …. 4.46 control mechanisms …. 4.34, 4.44, 4.52, 4.59 employee claim …. 4.31–4.61 employee situation, rules for …. 4.51–4.61 genuine …. 4.35 harm foreseeability and ‘normal fortitude’ …. 4.47–4.48 nervous shock …. 4.31–4.32, 4.37, 4.40 non-employee claim …. 4.29–4.30, 4.62–4.68 reasonableness …. 11.38–11.39, 11.50 special relationship …. 4.36–4.38 ‘sudden shock’ …. 4.42–4.43 trauma news communication …. 4.39–4.41 victim’s self-harm, relevance of …. 4.49–4.50 zone of danger …. 4.44–4.45 reasonable practicability …. 4.2, 6.33–6.34, 7.35–7.39, 8.52, 9.2, 9.9–9.19, 10.7, 12.47 reckless conduct …. 5.26–5.30, 13.78 res ipsa loquitur doctrine …. 5.40–5.41 serious and wilful misconduct (exceptions) …. 11.64–11.65, 11.78–11.87, 11.81, 11.83 workers and others …. 9.1–9.8 O Occupational Health and Safety Act 2000 (NSW) (OHSA) …. 6.13, 7.14, 10.1 obligations imposed …. 2.32, 3.3, 8.3 reasonable care …. 9.2 ‘plant’, meaning of …. 8.9

prosecutions direct breach versus ‘failing to ensure’ safety …. 10.16 state Act alternative …. 2.15 transitional arrangements …. 10.12 workplace control obligations …. 8.3 Occupational Health and Safety Regulation 2001 (OHSR 2001) actionability …. 6.14–6.15 civil liability under (repealed) …. 6.13 consultation arrangements …. 7.29 P Parliament federal (Commonwealth) major discrimination laws …. 12.3 non-coverage (of field) provision …. 2.15, 12.6 power, constitutional limits on …. 2.19–2.23 ‘Interpretation’ Acts …. 2.69–2.74 law-making committee supervision …. 2.34 parliamentary debate …. 2.7 powers—limits and requirements …. 2.31–2.32 process …. 2.2–2.9 restrictions …. 2.10–2.24 parliamentary intention …. 2.39 civil right (BSD action) …. 6.5–6.20 implying …. 6.8 state, power, constitutional limits on …. 2.11–2.18, 2.23 Persons conducting a business or undertaking (PCBUs) see Business operators

Precedent, doctrine of …. 1.45 decisions binding and persuasive …. 1.69–1.72 previous decisions, avoiding …. 1.73 stare decisis …. 1.65–1.66 general principles …. 1.64–1.75 overruling, effect of …. 1.74–1.76 ratio decidendi and obiter dicta …. 1.67–1.68 Private law criminal law …. 1.31 vicarious liability of employers …. 3.5, 3.131, 12.77 features …. 1.31 private law–public law, distinction …. 1.30–1.31 Public law criminal law branch see Criminal litigation features …. 1.31 private law–public law, distinction …. 1.30–1.31 R Rights common law rights–workers compensation intersection …. 11.120 enforcement see Civil litigation S Self-employed workers see Employees and workers: contractors Separation of powers …. 1.17–1.18, 2.29, 12.20 in federal court system …. 1.62–1.63 T

Tort of negligence see Negligence V Vicarious liability joint …. 3.5 origins …. 3.110 SDA provisions regarding sexual harassment …. 12.77 Stevens approach …. 3.13–3.20, 3.26–3.27 in Vabu cases …. 3.16–3.20 third parties, duties of employers to …. 3.109–3.131 W Work Health and Safety Act 2011 (NSW) (WHSA) see also Health and safety duties; Negligence breaches …. 7.53–7.60, 9.34–9.37, 13.58 parliamentary intention—actionable law …. 6.9–6.11 Safe Work Australia prosecution …. 13.3 business operators onus of proof …. 7.35–7.39 safety duties owed by …. 7.46–7.60, 8.1–8.52, 10.9 compliance …. 12.38 consultation arrangements …. 7.29 corporate manslaughter provision …. 9.25–9.27, 9.29 criminal prosecutions under …. 9.33 summary offences …. 1.53, 13.66 directors, personal liability …. 8.18–8.52 due diligence standard of care …. 8.41 general provisions …. 8.19–8.21 ‘officer(s)’ definitions …. 8.22–8.23 Division 3 duties …. 8.2–8.17

PCBUs, body corporate as …. 8.4 ‘residences’ …. 8.3, 8.5 statutory duty …. 8.3 Division 4 duties …. 8.18–8.52 duplicity …. 13.68 duties under …. 7.30–7.60, 8.1–8.52 general features …. 7.35–7.45 onus of proof …. 7.35–7.39 specific PCBU duties …. 7.46–7.60 WHSR duties additional to …. 10.21 duty holders, primary …. 7.31–7.32 duty to consult …. 9.6 enforcement of …. 7.26 other options …. 9.52 power of inspectors …. 9.34–9.37, 13.58 health monitoring …. 7.59 Model Act ‘court,’ definition …. 9.33 in force …. 7.17–7.18 future perspectives …. 7.20–7.21 harmonisation …. 7.19 implementation …. 7.16–7.21 jurisdictions …. 7.18–7.19 reasonable practicability across jurisdictions …. 6.33–6.34, 7.36–7.39 Model Regulations …. 7.23 objects of …. 7.27–7.29 onus of proof …. 7.35–7.39 other duties imposed by …. 7.33–7.34, 9.5

other persons, duties owed to …. 7.47–7.52 outline of …. 7.24–7.26 penalties ‘civil penalty provisions’ …. 7.26 health and safety duties breach …. 9.22 ‘managerial’ …. 9.22–9.24 mitigation of …. 9.41–9.47 sentencing …. 7.26, 9.38–9.51 ‘on-the-spot’ fines …. 9.34 structure of …. 9.21–9.24 WHSA–OHSA comparisons …. 9.23, 9.31, 9.51 persons conducting a business or undertaking see Business operators plant and structures …. 10.9 plant and substances, safety of …. 7.57 prosecutions under courts …. 7.17, 9.33 ‘Enforceable’ undertaking …. 7.26 formal offence elements …. 13.3 Kirk grounds, applicability …. 7.39 sentencing …. 7.26, 9.38–9.51 reasonable practicability …. 9.10 scope …. 7.40–7.45 application to ‘non-Commonwealth licensees’ …. 7.17 shared responsibility …. 9.7–9.8 systems of work, safe …. 4.8–4.9, 4.13–4.14, 4.20–4.22, 5.3, 5.15, 5.23, 5.26, 7.54–7.56 text …. 7.22 training and supervision provision …. 7.58

volunteers and unincorporated associations …. 9.7–9.8 WHS laws reform framework …. 7.15 WHS Regulation 2001 actionable breaches …. 6.12–6.20 duties imposed additional to Act …. 10.21 ‘at work’–‘work,’ contrast …. 7.41–7.43 ‘from’ connection …. 7.49 Work Health and Safety Regulations 2011 (NSW) (WHSR) application (to prior facts) …. 10.24 asbestos …. 5.61–5.64, 5.68, 10.12 breaches of actionability …. 6.16 civil actions available …. 6.12–6.20 business operators exclusions …. 8.5 general duties …. 10.9 construction work …. 10.11–10.12 exclusion criteria …. 12.71 hazard facilities …. 10.12 hazardous work …. 10.12 material safety data sheets (MSDSs) …. 10.12 mines …. 10.12 plant and structures …. 10.12, 10.25 equipment ‘suitability’ …. 10.26 Guarding …. 10.9 plant designers’ obligations …. 10.9, 10.12 prosecutions, transitional arrangements …. 10.12 risk assessment compliance obligations …. 10.20

foreseeable hazards …. 6.24, 10.23, 10.25 hierarchy of control …. 10.17–10.19, 10.23, 10.25 risk control/elimination control measures …. 10.23 personal protective equipment (PPE) …. 6.39, 10.23, 10.25–10.26 risk management …. 8.51, 10.21–10.26 a ‘box-ticking exercise’? …. 10.22 civil action for …. 6.17–6.18 compliance obligations …. 10.23 duties additional to WHSA …. 10.21 persons responsible for …. 10.12, 10.21 provisions under …. 10.12 Workers compensation see also Injury absenteeism …. 11.74 background …. 11.1–11.2 benefits automatic variations …. 11.114 cessation after five years …. 11.106–11.107 persons bound to contribute to …. 11.15 persons entitled to receive …. 11.8–11.14 type of …. 11.103–11.113 claims …. 2.18 common law rights …. 11.120 compensation by lump sum …. 11.110, 11.113 permanent impairment entitlement …. 11.108 contributions …. 11.15 damages claims and …. 5.87–5.93

death …. 11.110 dispute resolution …. 11.119 employers ‘self-insurers’ …. 2.16 WIMWCA definition of …. 11.15 entitlement, exceptions to, misconduct …. 11.64–11.65, 11.78–11.87, 11.81, 11.83 heart attack and stroke claims, exclusions …. 11.30 incapacity benefits cessation after five years …. 11.106–11.107 total incapacity …. 11.105 for work …. 11.104–11.107 insurance …. 11.11, 11.115–11.118 ‘self-insurers’ …. 2.16 Uninsured Liability and Indemnity Scheme …. 11.116 invalid regulations …. 2.32 journey claims …. 11.46, 11.61–11.63, 11.67–11.69 legislative schemes …. 4.88, 11.3, 11.5–11.6, 11.12 loss, non-economic compensation entitlements …. 11.108 pain and suffering …. 11.109 medical, hospital and rehabilitation expenses …. 11.111 other compensation and …. 11.4 principles …. 11.3 property damage …. 11.112 rehabilitation …. 11.121–11.123 workers, definitions of …. 11.7–11.13 Workers Compensation Act 1987 (NSW) (WCA) …. 5.87–5.93, 11.5

benefit recipients under …. 11.8–11.14 benefits under …. 11.103–11.113 common law rights …. 11.120 contributory negligence …. 6.44 ‘disease,’ definition …. 11.20–11.29 diseases of gradual onset, provisions …. 11.32–11.35 dispute resolution …. 11.119 dust diseases …. 11.18 ‘injury,’ definition …. 11.17 ‘injury,’ types …. 11.19 nervous shock/mental harm …. 4.37 reading as though part of WIMWCA …. 11.6, 11.13 rehabilitation …. 11.121–11.123 Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWCA) benefit contributors under …. 11.15 ‘employer’, definition …. 11.15 exemptions under …. 11.8 injury management programs …. 11.121 worker definition …. 11.8–11.13 Workplace safety see Health and safety duties