The end of contributory negligence in ACT work injury damages claims?

21 May 2021

Roberson v Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as ActewAGL Distribution [2020] ACTSC 320


In December 2020, Acting Justice Crowe of the Supreme Court of the ACT held that a breach of a statutory duty under the Work Health and Safety Regulation 2011 (ACT) (WHS Regulation) did confer a right of action to claim damages.

The injuries

The plaintiff, Mitchell Roberson, claimed damages in relation to three separate injuries allegedly suffered during the course of his employment as an electrician with the defendant.

The first injury was suffered in late 2013, due to the nature and condition of the plaintiff’s work duties, including working in and out of trenches and fitting switchboards in a crouched position. These duties resulted in pain and stiffness in his lower back and right hip (the 2013 injury).

The plaintiff submitted an injury report in December 2013 after his hip pain was causing significant limitations on his capacity to perform domestic tasks. The plaintiff was medically assessed and it was recommended that he undergo hip surgery. His work duties did not change, despite that he was promoted to the position of ‘Site Lead’.

In July 2014, the plaintiff underwent hip surgery and was incapacitated for work for three months. He then commenced a gradual return to work, initially on restricted duties. He resumed full pre-injury duties in February 2015.

As at late 2017, the plaintiff’s work tasks changed to include maintenance on high voltage switchboard stations. On 16 December 2017, he, along with three others, had to manually remove and lift a switchboard weighing roughly 400 kilograms. He experienced sharp pain in his lower back thereafter (the 2017 injury).

On 15 October 2018 , the plaintiff suffered from lower back and left hip pain while lifting another heavy switchboard (the 2018 injury). Further hip surgery was recommended at that juncture.

The allegations

The plaintiff alleged that his three injuries were sustained as a result of the negligence of his employer.

Alternatively, it was alleged that the employer had breached statutory duties owed under sections 34, 35, 36 and 60 of the WHS Act.

A breach of statutory duties under section 73(1)(b) of the Scaffolding and Lifts Regulation 1950 (ACT) was also alleged in relation to the 2013 injury and the 2018 injury.

Limitation period

The plaintiff’s damages claim in relation to the 2013 injury was statute-barred by operation of s16A of the Limitation Act 1985 (ACT), given that it was lodged more than three years after the injury.

The plaintiff was unsuccessful in his application to extend the limitation period, with Crowe AJ largely accepting the defendant’s submissions that:

  • the plaintiff had not provided a satisfactory explanation for the delay in bringing claim; and
  • the defendant had suffered actual prejudice in investigating that claim.

The plaintiff’s damages in relation to 2013 injury, had the limitation period been extended, were nonetheless assessed at $158,086.00.

Statutory breaches and preservation of private rights

In relation to the 2017 injury and the 2018 injury, Crowe AJ found that the defendant was negligent in failing to implement a safe system of work. Damages for those injuries were assessed at $1,115,754.00 and $181,475.00 respectively.

In relation to the 2018 injury, Crowe AJ also found that the defendant failed to provide a safe means of access in the course of building work, in breach of s73(1)(b) of the Scaffolding and Lifts Regulation 1950 (ACT).

In relation to the causes of action under the WHS Regulation, the defendant argued that section 267 of the Work Health and Safety Act 2011 (ACT) precluded the plaintiff from bringing a civil proceeding against it. That section relevantly states:

267 Civil liability not affected by this Act

Except as provided in part 6 (Discriminatory, coercive and misleading conduct), part 7 (Workplace entry by WHS entry permit-holders) and division 13.7 (WHS civil penalty provisions), nothing in this Act is to be construed as—

    1. conferring a right of action in a civil proceeding in relation to a contravention of a provision of this Act; or
    2. conferring a defence to an action in a civil proceeding or otherwise affecting a right of action in a civil proceeding; or
    3. affecting the extent (if any) to which a right of action arises, or a civil proceeding may be brought, in relation to breaches of duties or obligations imposed by regulation.

The plaintiff argued to the contrary and referred to D’Arcy v Caltex [2019] ACTCA 27, with reference to the following pertinent excerpts:

  • In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others will be regarded as involving a correlative private right.
  • The correlative private right will arise where the legislature creates a duty intended to protect a specified class of persons and the rights of a person within that class are infringed. The fact that a provision incorporates a penalty for breach does not necessarily exclude a right to sue for breach of statutory duty.

Ultimately, Crowe AJ accepted the plaintiff’s position and adopted the view of the Victorian Courts in looking at similar provisions in the decisions of Acir v Frosster Pty Ltd [2009] VSC 454 and Govic v Boral Australia Gypsum Ltd [2015] VSCA 130. His Honour concluded that section 267 preserved a plaintiff’s private right of action for a breach of a regulation, such as the WHS Regulation.

The plaintiff was thus not prevented from pursuing his claims for breach of statutory duties under the WHS Regulation. The plaintiff was successful with those claims, as the defendant had failed to identify the risk of injury, failing to minimise it and failed to appropriately manage it.

Implications of decision

Prior to this decision, the traditional position adopted by defendants, when responding to pleadings alleging a statutory breach under the WHS Regulation, was to assert that it did not confer a right to claim damages.

The decision is significant in that, once a statutory breach is established, there will be no basis for the Court to make a deduction for contributory negligence, given that s102(2) of the Civil Law (Wrongs) Act 2002 (ACT) prescribes that:

‘… if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant’s contributory negligence.’

The decision highlights the difficulties faced by workers compensation insurers in particular when responding to a work injury damages claim, as arguably such claims are now strict liability claims.

It remains to be seen whether a claimant, who is almost entirely the author of their own demise (see for instance Jancevski v WR Engineering Pty Ltd [2018] ACTCA 34) may still be able to recover damages, with no reduction for contributory negligence.

This article was written by Chris Dennett, Partner and Guillaume Nouri-Girones, Solicitor.

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