Dear Colleagues;
I apologise to those who are not in NSW and not interested in the tort of breach of statutory duty (BSD). Feel free to close this email now! But I wanted to provide some comment on a recent case on the issues which seems to me to take quite a wrong view of the law, and if allowed to stand as a precedent will deprive some plaintiffs of an important remedy for wrongs.
The case in question is the trial judge's decision in Minogue v Rudd [2012] NSWSC 305 (12 April 2012) http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=157772 (drawn to my attention by my colleague David Hambly.) The facts involve a workplace injury, and I think the analysis of the common law negligence claim is by no means beyond criticism. But the particular comments I am concerned with relate to the way that the judge deals with a claim for BSD. The claim was based on a couple of provisions of the Occupational Health and Safety Regulation 2001 (NSW)- repealed from 1 Jan 2012 but still likely to be invoked for some years to come, of course, as cases work their way through the system.
The BSD claim was ruled out by the judge, Adamson J, at [73]-[74], by virtue of s 39A of the OHS Act 2000 (NSW). A couple of features of that Act and BSD claims are worth clarifying before noting what her Honour said:

1. It has long been accepted that a BSD claim will usually be inferred from industrial safety legislation, both in the UK and also in Australia (see eg Dixon J in O'Connor v S P Bray in 1936).
2. The OHS Act 2000 s 32(1) explicitly ruled out a BSD action in relation to the "general duties" provisions of the Act.
3. But s 32(2) allowed the possibility of a civil action under the regulations.

In this context s 39A provided as follows:

"39A Civil liability under regulations
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. "

To my mind this is a reasonably clear provision- because the regulations are able to be read as creating civil liability, and indeed against the common law background likely to be so read, Parliament wanted to allow the Executive to exclude "specified" provisions as not being so actionable. Indeed, the Executive did so in enacting some new regulations about "major hazard facilities" a few years ago, by specifying in reg 175E(2) that breaches of that regulation would not be actionable. But otherwise s 39A was not used.

Despite this, I would have thought, fairly obvious meaning, the High Court seems to have confused her Honour by a footnote they added to the decision in Leighton Contractors Pty Limited v Fox [2009] HCA 35; 240 CLR 1 at 19 by citing s 39A. Nothing that the High Court said there leads to the view that the regulations can never be actionable. But sadly that is what Adamson J ruled in Minogue at [74]:

"I reject the plaintiff's submission that he has a private action based on breach of
statutory duty in respect of Regulation 39. It is not open to the plaintiff in light of s 39A of the
OH&S Act."

This is, not to put too fine a point on it, clearly wrong. There is even previous authority which demonstrates that it is wrong. There is a lucid analysis of the interaction between the OHS Act and Regs in the decision of Hungerford ADCJ in Irwin v Salvation Army (NSW) Property Trust & Anor [2007] NSWDC 266 (17 December 2007) at [104]-[108]. It is interesting that the judge in this case had previously served on the NSW Industrial Commission dealing with the criminal jurisdiction under the OHS Act and Regs. His Honour gave a clear review of the civil BSD action, noting at [104] that s 39A "may" provide for an exclusion but there had been no such provision in the regulation he was considering. There is a certain irony to the fact that the very provision being considered in Irwin, and ruled to be actionable, was cl 39 of the Regs, the same one rejected as actionable by Adamson J in Minogue.

Those who know the judicial heirarchy in NSW will point out that in the Supreme Court Adamson J was not bound by a decision of the District Court. This is true, but one would have thought that judicial courtesy would have meant that the previous decision was mentioned and at least commented upon. More to the point, there is a direct comment from the Court of Appeal (again obiter, but clearly significant) which is contrary to her Honour's view in the remark of McColl JA at [82] in Wynn Tresidder Management v Barkho [2009] NSWCA 149 that s 39A
"appears to confer an implied power to make a regulation which creates a duty enforceable by action at the suit of a person injured by its breach, an implication which gains some support from s 32(2)". Her Honour chose to "read down" this actionability based on what I regard as irrelevant policy reasons, but she at least recognised that there would be prima facie actionability.
Young JA in that same decision declined to rule on the actionability of the regulations, and added:
"[116] The proper construction of s 39A of the Occupational Health and Safety Act 2000 referred to by her Honour in [82] should also await a proper vehicle for decision."
It may be that an appeal from the decision in Minogue by the plaintiff would provide a "proper vehicle" for a sensible reading of the provision.

(It should also be noted that there is also a very odd remark about s 39A when her Honour comments at [74] that "Section 39A remained in force until 30 June 2005 when it was repealed by the Statute Law (Miscellaneous Provisions) Act 2005." I have checked the notes section in the official NSW legislation website, and it records that s 39A was inserted in 2003, but was the topic of no further action until the repeal of the 2000 Act on 1 Jan 2012. (In other words, as far as I can tell it remained fully in force until that date.) This comment does not affect the ruling but it is a further reason to doubt whether proper consideration was given to the s 39A issue.)

Regards
Neil



Neil Foster
Senior Lecturer
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
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