The NSW Court of Appeal recently considered whether an occupier's duties under Occupational Health & Safety Act (2001) (OHS Act) and Regulations 2001 (OHS Regulation) should be extended to create a private statutory cause of action for a member of the public. Although the Court of Appeal failed to conclude on the point, the case contains some interesting obiter that indicates that the Court would be hesitant to extend the application of the OHS Act and OHS Regulations to members of the public.
Fiona Barkho (plaintiff) was injured when she slipped and fell on a wet floor at the Neeta City Shopping Centre (Centre), which was owned and operated by Wynn Tresidder Management (Wynn) on 5 April 2004. The Centre was undergoing major reconstruction at the time and a carpeted ramp provided temporary access from the 2nd floor car park into the Centre. The access ramp into the Centre was covered with timber boards and heavy rain had caused the roof to leak onto the carpeted ramp. Pedestrians moving over the ramp had carried rain from the carpet onto the Centre's tiled floor.
On arrival at the Centre on the morning of 5 April 2004, a cleaner discovered the leak and placed three yellow warning cones along the length of the ramp and reported the leak to security. Security instructed the cleaner to place a yellow caution sign near the entrance to the Centre and dry mop the wet area of floor every 20-30 minutes.
The plaintiff arrived at the Centre at approximately 9.30am where she parked in the level 2 car park and proceeded down the carpeted ramp to the Centre. Approximately half an hour later, the plaintiff left the Centre, walked up the ramp and slipped on the tiled floor at the top of the ramp. The plaintiff alleges that at no time did she notice the yellow warning cones on the ramp and only saw the yellow warning sign and the cleaner mopping the floor when it was too late.
At first instance, the plaintiff sued Wynn in the District Court alleging negligence and a breach of Clauses 34 and 36 of the Regulation 2001. Wynn cross-claimed against two cleaning companies contracted to clean the Centre.
Hungerford QC ADCJ concluded that Wynn had breached its duty of care as there had been a persisting water problem that was bought to the attention of Wynn by way of notification to security at the Centre and that this problem posed a foreseeable risk to safety of persons using the area. In coming to this conclusion, his Honour noted that Wynn could have taken measures such as closing the area to the public, arranging an alternative route, or arranging a guard to direct members of the public away from the water. Wynn's cross-claim was dismissed against the cleaning companies, as the cleaner had done all he could reasonably do from a cleaning perspective to fix the problem.
Clause 34 of the Regulation requires a "controller" of work premises to take reasonable steps to indentify hazards that present a foreseeable risk of harm. Clause 36 requires the elimination or control of such a risk. Hungerford QC ADCJ held that Wynn had not sufficiently identified the risk of the water leaking onto the floor and the risk had not been sufficiently controlled or eliminated. Following a line of authority in O'Connor v SP Bray Ltd , it was held that Wynn was in breach of clauses 34 and 36 of the Regulation, which gave the plaintiff a civil action for damages for breach of statutory duty.
The plaintiff was awarded damages.
Wynn appealed against both findings. McColl JA delivered the unanimous finding of the Court of Appeal.
It was held that Wynn had breached its common law duty of care. Therefore it was not necessary to decide whether the statutory regime should apply. However, several interesting comments were made in relation to the application of the Regulation. McColl JA commented that:
- Hungerford QC ADCJ ought to have first determined whether the
protection of clauses 34 and 36 extended to persons in the
relationship of occupier and member of the public, as opposed to
occupier and employee, before deciding that the Regulation applied.
- Nothing in the second reading speech of the Bill for the OHS Act and OHS Regulation indicated that the legislature intended to extend the protection of that legislation to members of the public, rather its focus was identified as including "eliminating risk in the workplace, responsibility for workplace safety and injury management" [Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 May 2000, at 5937].
- The duties imposed by OHS Act and Regulation are arguably absolute and could operate to exclude the provisions of Part 1A of the Civil Liability Act 2002 (NSW). This could restrict the right of an occupier to plead contributory negligence.
- If the trial judge was correct to apply O'Connor, then members of the public who are injured on premises that are both places of work and are accessible to public, may be in a considerably better position than members of the public whose causes of action are governed solely by the Civil Liability Act 2002.
Although obiter only, the comments of McColl JA, agreed with by the Court, shows a reluctance by the NSW Court of Appeal to create a right of action under OHS law for a member of the public who is not performing work on the premises where the injury occurs. Occupiers may take some comfort from these comments, particularly the Court's reluctance to deprive a defendant of any benefit available under the contributory negligence provisions of the Civil Liability Act 2002.
Wynn Tresidder Management v Barkho  NSWCA 149
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