A shot across the bows of private statutory causes of action for personal injuryAuthor : Charles Thornley

Public and Products Liability

In Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 the NSW Court of Appeal considered whether a breach of Regulations under the Occupational Health and Safety Act 2000 (NSW) (OHSA) conferred a private cause of action on a member of the public. Insurers will be relieved to hear what the Appeal Court had to say.


Fiona Barkho was visiting the Neeta City Shopping Centre (Centre).  Heavy rain had caused a leak onto a temporary carpeted ramp. Pedestrians had carried water from the ramp onto a tiled section of the Centre’s floor.  Barkho slipped and fell as she stepped onto the tiled floor, injuring herself.

Judgment at first instance

Barkho sued, amongst others, the Centre manager Wynn Tresidder Management Pty Ltd (WTM) for breach of its occupier’s duty of care and for breach of Clauses 34 and 36 of the OHSA Regulations (Regulations). Clause 34(1) requires a œcontroller of work premises to take reasonable steps to prevent a foreseeable risk of harm while Clause 36 requires the elimination or control of such a risk.

Hungerford J found that WTM had breached its duty of care.  His Honour also found that the Regulations afforded Barkho a private cause of action for damages in the event of breach (following the line of authority in O’Connor v S P Bray Ltd [1937] HCA 18).  His Honour found that WTM had breached the Regulations and was also liable on that basis. WTM appealed against both findings.

Court of Appeal

WTM’s appeal against the finding that it had breached its common law duty of care was rejected. The Court of Appeal therefore did not need to consider the statutory cause of action, but in the leading judgment McColl JA provided a strong indication that the Court would have overturned Hungerford J’s decision on that issue for the following reasons:

+     Before Hungerford J considered whether the Regulations provided a private cause of action, he should first have considered whether they extended to cover persons in the relationship of occupier and member of the public.

+     It seems improbable that legislation whose long title and stated object is to secure the health, safety and welfare of persons œat work would extend to provide a private cause of action to members of the public.

+     Nothing in the Second Reading Speech to the Bill suggests that the legislature intended to extend the Bill’s provisions to protect members of the public entering shopping centres, but rather suggests an intention that the legislation address the elimination of risk in the workplace.

+     The definition of œplace of work in the OHSA is capable of extending to areas in a shopping centre to which the public and workers have access.  However. despite the Regulations appearing to protect members of the public accessing places of work, there are substantial policy reasons for concluding that the legislature did not intend the OHSA and its Regulations to extend to protect a member of the public in the circumstances in which Barkho was injured.

+     To the contrary, the Civil Liability Act 2000 NSW (CLA) evidences a determination on the part of the legislature to limit the circumstances in which damages can be recovered for negligence outside of the workplace.

+     The absolute or strict duties imposed by Clause 34 and 36 are in contrast to the enquiries required to determine the existence of a duty of care and its breach under the CLA.

+     If the Regulations confer a private cause of action to members of the public injured in premises where people also work (such as shopping centres) that would result in the inequitable situation where those persons would be in a substantially better position than those injured in places where people do not also work.

+     Even if the Regulations did provide a private cause of action, to the extent that the Regulations are inconsistent with the CLA they should arguably be excluded from operation.


Despite being obiter dictum this aspect of the judgment should be welcomed by insurers for the following reasons:

+     It is a timely shot across the bows of any attempt to circumvent the reforms introduced under the CLA by the use of statutory causes of action under the OHSA.

+     It indicates that the Court of Appeal will likely restrict the application of the OHSA and its Regulations to the workplace “ the area where the legislature intended the legislation to apply.

+     It reaffirms the importance and overriding role of the CLA in governing the recovery of damages for physical injury suffered outside of the workplace.