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.
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.

The plaintiff was awarded damages.
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.

This article is available in full at Mondaq.