BREACH OF STATUTORY DUTY (a) Breach of Statutory Duty is CIVIL ACTION (i) not criminal action (ii) not

action in negligence ie not breach of a common law duty of care (if neg is not found BSD is poss alternative) (iii) Strict liability (no fault element) (unless required by the statute)

(b) Elements of the Action (i) Intention of Parliamentary (ii) A duty imposed by Statute... (iii) for the benefit of a class including the plaintiff... (iv) on the defendant ... (v) which has been breached by the defendant ... (vi) as a result of which breach harm has been caused to the plaintiff (vii) which harm was within the danger aimed at by the Statute (i) Parliamentary Intent (of a civil right) 1-11 2

Sometimes Parliaments intention is spelled out clearly.. s 82, Trade Practices Act 1975 (Cth) right of action s 32(1)(a), OH&S Act 2000 (NSW) no right of action (re: Part 2 only) Parliaments Intention often unclear, due to compromise in statute construction; - Look at the document itself and interpret its TERMS and CONTENT; Byrne and Frew, - Examine the language and apparent purpose of the legislation Northern Sandblasting Pty Ltd v Harris (1997) EXAMPLES of Breach and No breach

3 General Presumption in favour of civil liability 4 OH & S legislation - Workplace Safety REGULATIONS!! These Acts have liberal interpretation in favour of worker injured as a result of breach; Arnold Industrial safety legislation (ie. At work) implicitly have a cause of action for breach of statutory duty See OConnor v SP Bray Ltd (1937); In the absence of contrary legislative intention... Summarised in Byrne and Frew v Australian Airlines Ltd (1995) -

As a general rule courts tend to favour civil remedies in the SAFETY area and not in others NB: OHS Act v Regulations OH & S Act 2000(NSW) s32 Obligations NOT ACTIONABLE in civil proceedings

BREACH OF STATUTORY DUTY BUT - s 32(2) A breached duty by REGULATIONS is available - Can distinguish between different provisions of the same Act; McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd if no enforcement (penalty or fine) assume action available if fine in statute there is no other remedy available, unsatisfactory for victim 6

purpose to protect workers, convenience and welfare of society, policy reasons X (Minors) v Bedfordshire County Council [1995] action may be possible even if D not intentional, neg or accidental Breach taken by interpreting the words of the statute, with the Facts of the case. 7 - Motorcycle accident: licensing scheme v specific precaution Armstrong v Hastings Valley Motorcycle Club Ltd - Ladder broke was not safe for the purpose for which it was intended; Miller v Hensley - Elevator stopped short of floor was not in safe and proper working condition; Arnold v Cth of Australia and Elevators Pty Limited. - See page 9 also - Safety Inspectors Given Powers to inspect NOT a DUTY. Ie they can choose to inspect. Pyrenees Shire Council v Day - Slipped in open NOT in building NOT a Floor 9 Waters v Trojan Tyres (NSW) Pty Limited Against PUBLIC Authorities DEFENCE 9 s 43 Civil Liability Act 2002 - s43(2) does not constitute a breach of statutory duty unless the act or omission was so unreasonable Ie. A High Degree of Carelessness must be established. (ii) A duty imposed by Statute... Statute stating obligation, action avail where common law recognises duty relationship eg emp-emp, school, hospital Duty imposed by Regulation as opposed to statute Australian Iron & Steel v Ryan (1957), Darling Island Stevedoring (1957) no BSD action for ministerial directive, ie licensing Armstrong v Hastings Valley Motorcycle Club Ltd [2005] 11

BREACH OF STATUTORY DUTY (iii) For the benefit of a class including the plaintiff... Not public at large; P must belong to class of persons protected by statute. Eg. Traffic regulations cannot be basis for action in BSD; Covered: 12 - Employees - Quilty v Bellambi Coal Co Pty Ltd (1966) - Non-employees covered under OHS Regs 2001, reg 9(1)(b) any other person legally at the employers place of work [not trespassers!] - Volunteers - Lenz v Trustees of the Catholic Church [2005] Not Covered: - General Public (Traffic Reg) Phillips v Britannia Hygenic Laundry Co [1923] o Unless duty imposed for particular class (eg. Employee). Expressed in the legislation. - Broad class when statute general Brodie v Singleton Shire Council [2001] - Duties under Social Security Act 1991 & Aust Postal Corporation Act 1989 for General public, not particular group. - Roof repairer of factory Almeida v Universal Dye Works [2000] - Employer providing work for injured employee; Gardiner v State of Victoria [1999] (iv) on the defendant ... 14 - is P owed a duty? Quilty, Wenck, English - does the provision cast an obligation on the D? Darling Island - not transferable by delegating to a competent person Law Reform (Vicarious Liability) Act 1983 (NSW) employer is vicariously liable for BSD imposed on an employee where acting in the course of employment Question of interpretation - Pantalone v Alaouie; the person causing the excavation to be made was the owner of the block, not excavator driver. - Maggiotto Building Concepts Pty Ltd v Gordon [2001] 15 Co-ordinating contractors, Maggiotto were carrying out the work, liable r 73 Confirmed Maggiotto binding in Kolodziejcyk v Grandview Pty Ltd [2002] BUT Distinguished Maggiotto - no need for co-ordination as only one job, So Grandview not carrying out the work Volunteers - Lenz v Trustees of the Catholic Church [2005] NSWCA 446 15 12-14

BREACH OF STATUTORY DUTY Regulations clearly covered non-commercial building operations as well as others. Person carrying out the work was not Lenz but volunteer supervisor, liable under r 73. Also the church was the person in charge of the work under r74, also liable. So regulation covers unpaid volunteered work. DUTY cast on Particular Person; eg. Occupier of Premises Braham v J Lyons & Co Ltd; so far as Reasonably Practicable 16

(v) which has been breached by the defendant ... 16 - How the breach happens is irrelevant; even if everything possible or reasonably practicable done, still liable. o only need to prove duty was breached; o no need to prove lack of reasonable care - an "absolute" obligation SO: If wording of statute does not impose a reasonable care obligations => STRICT obligation, only need to show it happened. EXAMPLES: - Lift Rope broke Properly Maintained - Postmans motorcycle work equipment is maintained - Radiator Cap efficient working order and in good repair - Loose stones - Poor Lighting -

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all practical precautions means if danger not foreseeable, there is no liability McDonald [2004] reasonable care - onus on Plaintiff to prove compliance with 17 provision had been reasonably practicable o Slivak v Lurgi (Australia) Pty Ltd [2001] ie prove practicable precautions were not taken (not a heavy onus) o Overruling Kingshott v Goodyear Tyre & Rubber Co Aust Ltd (No 2) (1987) regulation not breached 18 Rawson Homes Pty Ltd v Donnelly [2005] passageways to be kept free of obstructions, held that area where injury occurred not a passageway Specific Risk view 19 o Steel Cap Boots In good repair: Fytche v Wincanton Logistics Plc [2003] No BSD by Majority - narrow view; the danger intended to be covered was heavy objects, not ice. Minority argued equipment provided must not only cover the specific risk identified BUT must itself be safe, and here it was not!

- General considerations of safety v Specific Risk

BREACH OF STATUTORY DUTY Priority is to prevent injury to person not good repair 20 o Ball v Street [2005] EWCA ; Court of appeal said terms in legislation were interpreted as imposing absolute obligation. Distinguished Fytch ** Purpose of the legislation was NOT to require machinery to be in good repair but imposed duty so as to prevent injury to person using it. Foreseeability by Employers 21 o Robb v Salamis (M & I) Limited [2006] UKHL 56 The Ladder was work equipment; employer should have foreseen risk and fixed ladder so it could not be moved. - Employers are required to take account of the contingency of carelessness. 22

(vi) Caused harm to the plaintiff Harm must be caused by BSD Employee need only prove BSD that resulted in injury Courts reluctant to excuse employer for employees BSD Andar Transport v Brambles [2004] employers liability is ordinarily strict 23 no matter that breach is sole cause of employees actions. o Can allow for shared responsibilities. Opposite judgment Millington v Wilkie [2005] (Climbed ladder, fell off) statute should be interpreted so as not to provide for recovery by an employee whose action alone caused breach. (He was ordered not to climb it) Later decision: 23/24 Lenz v Trustees of the Catholic Church [2005] - Cant just look at carelessness of employee. So long as failure of employer to comply with regulation has had some material impact, employer cannot avoid liability. Failure to provide training John Pfeiffer Pty. Ltd. v Canny (1981)

(vii) harm within scope of the Statute -

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general safety of worker or specific type of accident Gorris v Scott (1874) to prevent disease, not washed-over sheep Mummery v Irvings Pty Ltd (1956) fence machinery to prevent contact, not from things flying out

BREACH OF STATUTORY DUTY Stergiou v N.A. Noulikas Holdings - fall down slope not covered by regulations protecting from overhead dangers

(c) Defences 20 - Remember: s43 for public or other authorities. Others: Contributory Negligence: - Partial defence, Law Reform (miscellaneous provisions) Act 1965 1990 BSD actions by workers against employers reduced by Cont Neg Independent contractors not covered by Workers Comp 1987 Act therefore no Cont Neg Defence - eg Almeida, Maggiotto

- 2002 BSD & Neg reduction of damages by Cont Neg, employee or contractor
Booksan Pty Ltd and anor v Wehbe and ors [2006] Hypocritical to give P right of action and then reduce it because of fault If not a defence then P not motivated to take care Illegality not defence Volenti non fit injuria means action to which person consents cant be an injury. Not avail if risk consented to is one protected by the provision page 22

(d) Breach of Statutory Duty Limitations -

General statutes limiting amounts etc that can be recovered usually apply to BSD for employee limits imposed by Workers Compensation Act 1987 for a contractor limits imposed by the Civil Liability Act 2002