FORESEEABILITY AND BREACH OF DUTY UNDER THE WORK HEALTH AND SAFETY ACT 2011 (NSW)

19 Mar 2020

1. This issue was brought to attention by two judgments delivered in 2019: 

a. Orr v Cobar Management Pty Ltd, 27 May 2019, a Judgment of Scotting J; and

b. Orr v Hunter Quarries Pty Ltd, 8 November 2019, a Judgment of Russell J.

2. I will come back to the reasoning in those cases later.

3. However, the issue that excites attention can probably be posed as a question in the following terms:

Is there a point beyond which the actions of experienced, highly trained workers who put themselves at risk of injury in a manner which is inexplicable or unexpected can be considered not reasonably foreseeable?

4. The context in which this question should be asked is one where the relevant action occurred during the completion of a task, that task involves exposure to risks to health and safety, those risks having been recognised and in respect to which the PCBU has put in place procedures and policies to overcome those risks.

5. The premise is that if the action of the worker was not reasonably foreseeable then it is hard to discern what “reasonably practicable” steps to prevent or minimise that risk could or should have been put in place by the PCBU.

COMMON LAW DUTY

6. A discussion on this topic begins with the description of the breadth of the common law duty owed by an employer to an employee.

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Malcolm Scott

Barrister 1990

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