As well as a number of "direct duties" on
employers, employees and persons in the workplace regarding health
and safety, the various statutes in the Commonwealth contain a
variety of "upstream duties" on designers, manufacturers,
importers and installers of plant and equipment used in the
workplace and, indeed, workplaces themselves. These "upstream
duties" are not the subject of thorough or consistent
enforcement actions largely because of the difficulty and expense
of tracking down the offenders and untangling the web of duty
holders in respect of any particular circumstance.
This article draws on the concept of proportionate liability and
proposes a similar regime whereby the upstream duties might be more
regularly and diligently enforced, and therefore adhered to as an
extra limb to ensuring health and safety in the workplace.
In the building industry, a policy driver of proportionate
liability regimes is that a person ought not pay more than their
fair share of the damage suffered by a plaintiff. While this
central concept of proportionate liability is sound, its execution
has been poor and attracted much criticism. Principal amongst that
criticism is the fact that to take advantage of the regime a
defendant must, in effect, "put words in the mouth" of a
plaintiff. In order to do so, the defendant must contribute to the
plaintiff's case against other persons apart from that
defendant. The cost and expense of doing so is borne not by the
plaintiff, who does not wish to take advantage of the regime, but
by the defendant who wishes to pay for only that proportion of the
damage it has caused where it knows, or has a reasonable suspicion,
that a separate player has contributed to the plaintiff's
Despite the poor implementation of the proportionate liability
regime the fundamental principle is sound and on that basis we
propose that similar principles ought be applied to OHS
prosecutions as a method of enforcing the upstream duties while not
overtaxing the resources of the inspectorate. If, for example, an
OHS defendant who was to be subject to prosecution for a particular
offence, considered that an upstream player had contributed to the
existence of the occupational risk, permitting that defendant to
undertake its own private investigation and lay private charges
against the upstream duty holder might be a valuable tool in
enforcing those duties.
The suggestion proceeds on the basis that right minded persons
would wish the "real" wrongdoer brought to justice. It
also acknowledges that the accountability mechanics of s 131 of the
OHS Act could conceivably provide little by way of comfort to a
primary duty holder under prosecution who considered that an
upstream duty holder ought also to be held accountable, but
WorkSafe, reasonably, declined to prosecute on the basis that it
would be an inefficient use of taxpayer funds.
A proportionate liability type regime wherein primary duty
holders the subject of an impending prosecution were permitted to
undertake a private prosecution of the relevant upstream duty
holder might be the key to better enforcement of upstream duties.
Certainly, the ability for a primary duty holder to bring a
third-party prosecution would encourage discussions about OHS
during projects and this in itself would be valuable to secure
improved health and safety outcomes.
For further information contact Andrew Pitney, Ben Davidson and
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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