Australia: "Court Of Appeal Fails To Decide Whether The OH&S Regulation Confers A Private Cause Of Action For Breach Of Statutory Duty On Members Of The Public"

Last Updated: 23 June 2009
Article by Samantha Hubbard

Wynn Tresidder Management v Barkho [2009] NSWCA 149

In Brief

  • An occupier of premises must take all reasonable steps to eliminate hazards, whereas a contractor will only be required to take reasonable action within the limits of its authority and instructions.
  • The Court of Appeal failed to make a decision as to whether a member of the public has a cause of action for breach of statutory duty under the Occupational Health & Safety Regulation 2001, nor whether the Civil Liability Act would apply to the exclusion from operation of the Occupational Health and Safety Act and Regulation. However, the Court of Appeal has identified this as an area requiring clarification in the future.


On 5 April 2004, the plaintiff was injured when she slipped and fell at the top of a carpeted ramp which provided access to and from a car park at a shopping centre under the care, control and management of Wynn Tresidder Management Pty Limited ("Wynn"). The centre was undergoing reconstruction work at the time of the incident. Water was found to have leaked through the roof, onto the carpeted ramp and was then carried onto the tiled floor by pedestrian traffic.

Prior to the injury, a cleaner became aware of the water leak and reported it to security. In accordance with security's instructions, the cleaner placed three yellow warning cones along the length of the ramp, placed a yellow caution sign in the area and dry mopped the wet tiles every 20-30 minutes. However, the plaintiff alleged that she did not notice the water leak, the wet floor, the three warning cones, the caution sign or the cleaner using a mop and bucket when she slipped at the top of the ramp onto the tiled floor.

District Court Decision

The plaintiff commenced proceedings in the District Court of NSW seeking to recover damages in respect of Wynn's alleged negligence and breach of a statutory duty created by the Occupational Health & Safety Regulation 2001 ("the Regulation"). Wynn in turn cross claimed against two cleaning companies but both Cross Claims were ultimately dismissed.

Hungerford QC ADCJ concluded that there had been a persisting water problem which had not been corrected by Wynn and posed a foreseeable risk to the safety of persons using the area. It was found that the cleaner could not attend to rectifying the water leak but that he did all he could reasonably do in relation to relieving its consequences from a cleaning perspective, in accordance with instructions given to him by security. Accordingly, negligence was not made out as against the cleaning companies.

In relation to Wynn, Hungerford QC ADCJ found that it had breached its duty of care by not providing premises which were reasonably safe and by not intervening to take additional reasonable action such as closing the area to the public, arranging an alternative route, restricting access by barricades or positioning a guard to direct persons, such as the plaintiff, to follow a path free from the water hazard.

Clause 34 and 36 of the Regulation require the controller of premises "to identify any foreseeable hazard on the premises that has the potential to harm the health or safety of any person accessing, using or egressing the premises and to eliminate or control any such hazard". It was held that Wynn had not relevantly identified the risk of leaking water onto the floor, that the water risk was not eliminated and that Wynn had not sufficiently controlled the risk. Accordingly, it was decided that Wynn had breached clauses 34 and 36 of the Regulation, which gave the plaintiff a civil action for damages for breach of statutory duty. No contributory negligence was found and Hungerford QC ADCJ awarded the plaintiff $134,068.16 in damages.

On Appeal

McColl JA delivered the unanimous judgment of the Court of Appeal.


On appeal, Wynn argued that the primary judge had erred in failing to find a breach of duty of care by the cleaning company, in finding Wynn liable even though his Honour failed to find any causal connection between the alleged negligence and the plaintiff's injury, in finding that Wynn owed a statutory duty of care founded in the Regulation and in failing to find any contributory negligence on the part of the plaintiff. Damages were also disputed.

Wynn submitted that steps taken by the cleaning company were sufficient and that it could not be expected that a person in the plaintiff's position would have been so inattentive as to fail to observe the warning signs and the cleaner. It was further submitted that the additional steps suggested such as closing off the area had possible consequences of inconvenience and danger.

In response, the plaintiff submitted that the primary judge had been correct in accepting evidence from the cleaner that it had done everything it had been instructed to do and that Wynn had a duty to ensure the safe use of the premises where there was a structural defect during reconstruction work. It was further submitted that the plaintiff had taken reasonable care for her own safety and had failed to see the warning sign which was not, in any event, near the area where she was about to place her foot. The plaintiff also submitted that the primary judge's findings with regard to damages were appropriate.


McColl JA found that the primary judge had not erred in finding Wynn had breached its duty of care to the plaintiff by failing to consider closing the area to pedestrians and disagreed that such a step would create further hazards. Her Honour found the primary judge was also correct in deciding the cleaners had discharged their duty of care. Evidence was noted which suggested the plaintiff had been looking where she was going at the time of the injury but was still exposed to a risk of injury due to the "invisibility" of the danger she was about to encounter, being the water on the tiled floor. It was therefore found that the primary judge was correct in concluding that there was no contributory negligence on the part of the plaintiff.

In relation to the argument that the Regulation does not confer a private right of action upon the plaintiff as she was not an employee of Wynn, McColl JA noted that the Occupational Health & Safety Act 2000 ("the Act") primarily regulated obligations to be discharged in respect of "people at a place of work". However, other sections of the Act were referred to, such as s 8(2), which protected people other than employees from risks to their health or safety arising from the conduct of the employer. Pursuant to s 32(1) of the Act, it was found that none of the provisions conferred a right of action or a defence in civil proceedings.

However, the position was different in relation to the Regulation, which McColl JA noted appeared to afford protection to members of the public accessing places of work, pursuant to clauses 34 and 36. McColl JA therefore considered it possible that the Regulation conferred a private right of action upon the plaintiff.

If the Regulation did confer a private right of action, the next question to be decided was whether a defence of contributory negligence was available to Wynn. McColl JA noted that neither the Act nor the Regulation provided for contributory negligence, but that the Civil Liability Act might apply on the basis that the claim was essentially for damages for harm resulting from negligence. In this regard, her Honour referred to the matter of Booksan Pty Limited v Wehbe, (2006) NSWCA 3 in which it was decided that contributory negligence was available to a cause of action for breach of the Construction Safety Regulations 1950.

However, her Honour ultimately decided that it was unnecessary to reach a concluded view on firstly, whether the Regulation confers a statutory cause of action, and secondly, whether the Civil Liability Act would enable a deduction for contributory negligence, as Wynn's submissions regarding negligence and contributory negligence had been rejected. In relation to the question of damages, McColl JA found that the plaintiff's medical reports sufficiently detailed the factual basis for the opinions offered and therefore rejected

Wynn's submissions that they did not satisfy the criteria for such reports identified in the matter of Makita. Submissions regarding the primary judge's finding for non-economic loss by reference to a "most extreme case" were also rejected as Wynn had failed to show that the conclusion reached by the primary judge was manifestly NSWCA 449.

Ultimately, it was decided that Wynn's appeal should be dismissed with costs. Young JA, who agreed with McColl JA, also noted that a conclusion on the question of whether the Regulation creates a private right of action at all, and in particular in a member of the public, should await a proper vehicle for the decision.


This case clearly supports the proposition that an occupier has an overriding obligation to provide premises which are reasonably safe and to take all reasonable precautions to eliminate hazards. It is also clear that a sub-contractor will be limited in its liability to take all reasonable precautions to prevent injury within the limit of its instructions and authority.

An important implication for occupiers is to ensure that any warning signs placed in the vicinity of hazards are as close to the hazard as practicable to ensure they act as a proper warning to members of the public. Otherwise, as in this case, the court may find that a failure to heed the warnings does not constitute contributory negligence.

Unfortunately, the Court of Appeal has not used this case as a vehicle to determine the following issues, which will need to be clarified in the future:

  1. whether the Occupational Health & Safety Regulation applies to persons in the relationship of occupier and a member of the public, or whether they are restricted to an employment relationship;
  2. whether the Occupational Health & Safety Regulation gives rise to a private cause of action; and if so
  3. whether contributory negligence will be available as a defence, by virtue of the finding that all causes of action for breach of statutory duty pleaded since the enactment of the Civil Liability Act for damages for harm resulting from negligence are governed by that Act.

In the meantime, we remain of the view that there are good grounds for occupiers to dispute all claims made pursuant to the Occupational Health & Safety Act or Regulation and to plead contributory negligence.

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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