Breach of statutory duty – is contributory negligence dead?
Caselaw in the ACT over recent years has developed in relation to breach of statutory duty in the workplace. In particular, workers and workers compensation insurers have clashed over whether section 267 of the Work Health and Safety Act 2011 (ACT) (WHS Act) prevents workers from establishing breach of statutory duties under the Work Health and Safety Regulation 2011 (the Regulation).
Section 267 WHS Act provides that nothing in the Act is to be construed as granting, or conferring a defence to, a civil action, or affecting the extent to which a right of action may be brought, if any, in relation to breaches of the Regulation.
The most recent decision addressing the issue is Roberson v Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as ActewAGL Distribution  ACTSC 320, which found that section 267 WHS Act did not prevent the plaintiff from establishing and relying on breach of statutory duties under the Regulation.
In arriving at that interpretation of section 267 WHS Act, the judgment in Roberson relied on Victorian decisions interpreting that state’s legislation, which is in virtually the same terms.
Closer to home, the relevant legislation in NSW contains very similar provisions, which have been treated very differently since the High Court decision of Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox  HCA 35.
Crucially, in NSW and Victoria breach of statutory duty does not eliminate the application of contributory negligence. In the ACT, however, once statutory breach has been established, contributory negligence is no longer available due to the application of section 102 of the Civil Law (Wrongs) Act 2002 (ACT) (CLWA).
How the courts interpret section 267 WHS has the potential to make the ACT jurisdiction uniquely onerous for employers.
Comparison of statutory schemes/history
We have set out the comparable legislation across the ACT, NSW and Victoria in the table below, which shows there is substantial consistency, with very minor differences, between the current provisions across the three jurisdictions. The NSW and Victorian statute prior to the implementation of the uniform Work Health and Safety law were also substantially similar, with slight differences in wording.
|Occupational Health and Safety Act 1989 (repealed)
Section 223 Civil liability not affected
Nothing in this Act shall be taken—
(a) to give a right of action in any civil proceeding in relation to any contravention of any provision of this Act; or
(b) to give a defence to an action in any civil proceeding or affect a right of action in any civil proceeding
Work Safety Act 2008 (repealed)
Section 225 Civil Liability not affected
Nothing in this Act is to be taken—
(a) to give a right of action in any civil proceeding in relation to
any contravention of any provision of this Act; or
(b) to give a defence to an action in any civil proceeding or affect a right of action in any civil proceeding.
|Occupational Health And Safety Act 2000 (repealed)
Section 32 Civil liability not affected by this Part
(1) Nothing in this Part 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 any provision of this Part, 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.
(2) Subsection (1) does not affect the extent (if any) to which a breach of duty imposed by the regulations is actionable (including any regulation that adapts a provision of this Part).
39A Civil liability under regulations (Added in 2003)
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.
|Occupational Health and Safety Act 1985 (repealed)
Section 28 Civil liability not affected by Part 3
Nothing in this Part shall be construed as—
(a) conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Part;
(b) conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings; or
(c) affecting the extent (if any) to which a right of action arises or civil proceedings may be taken with respect to breaches of duties imposed by the regulations.
|Work Health And Safety Act 2011
Section 267 Civil liability not affected by this Act
Except as provided in part 6 (Discriminatory, coercive and misleading conduct), part 7 (Workplace entry by WHS entry permit-holders) and division 13.7 (WHS civil penalty provisions), nothing in this Act is to be construed as—
(a) conferring a right of action in a civil proceeding in relation to a contravention of a provision of this Act; or
(b) conferring a defence to an action in a civil proceeding or otherwise affecting a right of action in a civil proceeding; or
(c) affecting the extent (if any) to which a right of action arises, or a civil proceeding may be brought, in relation to breaches of duties or obligations imposed by regulation.
|Work Health And Safety Act 2011
Section 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, or
(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.
|Occupational Health and Safety Act 2004
Section 34 Civil liability not affected by this Part
Nothing in this Part is to be construed as—
(a) conferring a right of action in civil proceedings in respect of a contravention of a provision of this Part; or
(b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or
(c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be taken, with respect to breaches of duties or obligations imposed by the regulations.
It is worth exploring how there has come to be a difference in interpretation across the States.
Victorian case law has consistently interpreted the current and historical statutes as permitting breach of a duty or obligation imposed by OH&S regulations to found a private right of action.
In Govic, the respondent unsuccessfully argued that section 34 Occupational Health and Safety Act 2004 (VIC) and the associated Regulations did not give rise to a statutory duty, the breach of which was capable of founding a private right of action by the appellant. The court stated that one must look to the Regulations, which did not contain any express provision to the effect that a breach did not confer a private right of action.
Prior to 2009, the courts in NSW took a similar approach. In Irwin v Salvation Army (NSW) Property Trust & Anor  NSWDC 266 (17 December 2007) Justice Hungerford discussed section 32 of the Occupational Health and Safety Act 2000 (NSW) at 108:
Does cl 39, then, contain an intention against the giving of a right to a civil action? In light of s 32(2), I think it is to the clause itself in the regulation one is to look for the answer. It is true that the clause invokes a criminal sanction for breach by the imposition of a penalty but, in my view, any intention against the giving of a right to a civil action for breach, where the safety of persons at work is concerned, must be plainly evident from the terms of the regulation, either expressly or by necessary implication. There is nothing in cl 39, in my reading of it, to even suggest an intention against a civil action where it is breached. Therefore, I hold that cl 39(e) does support, if the circumstances otherwise be made out, a civil action for damages for breach of statutory duty. However, as those circumstances have not been met in the case here, as I have found, then this count otherwise fails.
It was the High Court decision in Leighton which caused NSW to take a different path in the interpretation of the repealed section 32 Occupational Health and Safety Act 2000 (NSW) and its successor, section 267 Work Health and Safety Act 2011 (NSW).
At paragraph 42 the Court stated:
… The case against Leighton and Downview was not pleaded as involving breach of statutory duty. No doubt this was because the terms of the OHS Act prevent the duties imposed by it on employers and others giving rise to correlative private rights.
It went on to say at paragraph 49:
The obligation imposed on Leighton under the Regulation, while not founding an action for breach of statutory duty, is central to the Court of Appeal's conclusion that a common law duty existed. While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330, ‘whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.’
The courts in NSW have since applied Leighton in finding that a breach of the OHS/WHS regulations do not give rise to an independent cause of action.
Case history in ACT
Although Roberson was the first case in the ACT which was required to determine the application of section 267 in relation to the Regulation, the relevant principles of statutory breach having regard to the WHS Act and the Regulation have been addressed in cases commencing from 2016.
We have addressed those decisions in chronological order.
The plaintiff in Lean v Cosmorex Coffee Pty Limited  ACTSC 309 (in which the author was involved) alleged breach of the Dangerous Substances Act 2004 (ACT). The plaintiff relied on the principles in Govic and argued there was nothing in the relevant Act to displace the presumption that a breach of statutory contained therein gave rise to a civil cause of action. Associate Justice Mossop, as he then was, considered that in the absence of a similar provision to section 267 WHS Act or section 223 of the Occupational Health and Safety Act 1989 (repealed) (OHS Act), an actionable breach of statutory duty had occurred. His Honour went on, however, to find that the plaintiff had failed to discharge her onus in relation to causation.
Cowie v Gungahlin Veterinary Services Pty Ltd  ACTSC 311 was an appeal from a finding at first instance that the employer had not breached its duty of care to the appellant worker. The appellant did not allege breach of a statutory duty under the Regulation but rather relied on the reasoning in Leighton to argue that the relevant code of practice informed the scope of the employer’s duty of care.
Associate Justice Mossop stated at paragraph 69:
It was not open to plead breach of the obligation [under the industry code] as a separate cause of action having regard to the terms of s 267(a) of the WHS Act. It is possible that it could have been pleaded as a particular of negligence. That too might have been precluded by the terms of s 267(b) depending upon how the two elements of that paragraph are interpreted and what effect is given to the provisions of div 14.2 of the WHS Act.
D’Arcy v Caltex Australia Petroleum Pty Ltd  ACTCA 27 involved an alleged breach of statutory duty by an occupier, as opposed to an employer.
At paragraph 87 the court stated:
The submissions of the appellant must be addressed in the context of s 267 of the WHS Act which is headed ‘Civil liability not affected by this Act’. The section provides that nothing in the Act is to be construed as ‘…otherwise affecting a right of action in a civil proceeding’: s 267(b) or ‘affecting the extent (if any) to which a right of action arises, or a civil proceeding may be brought, in relation to breaches of duties or obligations imposed by regulation’: s 267(c). The relationship between these two limbs of s 267 may be problematic. Given the absence of any detailed submissions about the effect of s 267 it is not necessary to attempt to resolve its meaning.
It is sufficient to deal with the case on the basis that the appellant argued it, namely that the content of the regulations made under the WHS Act could be taken into account in a factual sense in considering the extent to which legislative requirements touching on industrial safety have become more demanding and hence have an impact on community expectations of a reasonably prudent person in the position of Caltex.
Referring to Leighton, the Court of Appeal went on to say at paragraph 90:
It is therefore open to take into account the terms of the Act and the Regulation in a general way as indicating a change in community standards in relation to their subject matter, but not in a way that imposes a more stringent or onerous burden in the exercise of reasonable care. The obligations in the Act and the regulation have no direct effect by their own force upon any cause of action of the appellant. As a consequence, a breach of any obligation under the Act or Regulation will not give rise to a breach of the common law duty of care, unless the existence of the regulation in question indicates that community standards are such that reasonable care involves taking the steps required by the relevant provision.
In Hauraki v Steinhoff Asia Pacific Limited trading as Freedom Furniture  ACTSC, although reliance on section 267 was pleaded in its defence, at hearing the defendant abandoned its liability and causation defences.
This brings us to Roberson v Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as ActewAGL Distribution  ACTSC 320. The proceedings involved three accidents.
Breach of statutory duty was only relevant to one of the incidents, and the court considered the WHS Act and alleged breach under the Regulation only after finding that the employer was both negligent and had breached its duty under the Scaffolding and Lifts Regulation 1950. Accordingly the application of section 267 WHS was not essential to the decision and was therefore obiter dictum, ie not legally binding as precedent.
The court accepted the plaintiff’s argument that section 267 WHS Act did not apply to statutory duties owed by the employer under the Regulation. The court placed significant weight on the similarity between the Victorian and ACT provisions in applying the Victorian approach set out in Acir and Govic.
Importantly it does not appear from the judgment that Leighton or the resulting NSW approach were argued in support of the defendant’s case.
It is section 102 CLWA which makes the approach to section 267 WHS Act so important to employers and workers compensation insurers in the ACT.
Section 102(2) CLWA provides that if a claimant suffers personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant's contributory negligence.
By contrast, in Victoria contributory negligence is available to a defendant in an action founded on breach of statutory duty. This is also the case in NSW.
If the ACT courts continue to interpret section 267 WHS Act consistently with the Victorian approach, this would mean that any breach of an obligation under the Regulation effectively imposes strict liability.
In circumstances where the Regulation addresses a wide range of obligations on employers, a minor failure to comply with the Regulation will defeat a defendant employer even where reasonable care was taken, or the worker’s injuries were substantially caused by their own contributory negligence.
The practical effect would be to prevent employers from running cases on liability, and an inevitable increase in costs to the scheme.
Since Roberson, plaintiff workers have been more bullish in relation to alleged breaches of statutory duty under the Regulation; however, it is important to note that a binding precedent is yet to be delivered in the ACT. As obiter, the reasoning in Roberson is not binding but remains persuasive. Employers should continue to plead and rely on section 267 WHS until the issue is authoritatively determined, relying in particular on the NSW approach which was not argued before the court in Roberson.
Given the competing approaches, it will ultimately be a matter for the High Court or the legislature to provide clarity.
 Acir v Frosster Pty Ltd  VSC 454, Govic v Boral Australia Gypsum Ltd  VSCA 130; 47 VR 430.
 For example Michael Perigo v Workers Compensation Nominal Insurer and Anor (No 2)  NSWSC 830 at 49, and Ralston v Bell & Smith trading as Xentex Patch & Grout  NSWSC 245 at 107, Clarke v South East Sydney Local Health District  NSWSC 66.
 See Kakouris v Gibbs Burge & Co Ltd  VR 502 (FC), affirmed 44 ALJR 384.
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