Malcolm Scott is a leading prosecutor in the area of WHS. In addition, Malcolm has for many years practised in the areas of general common law and insurance contract law, employment law, medical negligence and succession. Before coming to the Bar in 1990, he worked for the Metal Trades Industry Association, MTIA (now known as the Australian Industry Group), for 13 years, where he was appointed National Manager of Industrial Relations. He specialised in organising very large construction projects and undertook extensive negotiations with unions and their organisations.

Malcolm works closely with solicitors, clients and other members of his legal team to gain a clear definition of the problem, and identify the legal issues in the simplest terms possible. His approach is to solve or work around legal issues as quickly and cost effectively as possible. He believes that a forensic attention to the law and an unwavering commitment to objectivity are the most direct routes to a solution.

With more than 25 years at the Bar, Malcolm is keenly aware of the requirements of an effective Counsel in litigation and resolving disputes. He also actively shares his expertise and knowledge with junior solicitors and Counsel.

Focus Areas + Select Cases

Area Concrete Pumping Pty Limited v Childs (2012) 223 IR 86 - The interesting issue was what level of particularisation of a charge was necessary to excite the jurisdiction of the Industrial Relations Court.

SafeWork NSW v THO Services Limited NSWCCA 2016/148143 - This is the first appeal taken by SafeWork NSW on a basis of a complaint of an inadequate sentence being imposed by a District Court Judge.

WorkCover v St Hilliers Construction Pty Limited Finnane DCJ (13 November 2014) - This was the first matter in which a penalty had been imposed for a breach of s19(2) of the WHS Act. The Defendant was fined $337,500 with regard to the death of a pedestrian on the access road to the Defendant’s construction site.

Chevally v Industrial Court of NSW (2011) NSWCA 357 - The issue in this matter went to the validity of provisions of the OH&S Act where those provisions went to directorial liability.

Inspector Batty v Intercoast Refrigerated Transport Pty Limited (2013) 230 IR 107 - The central issue in this matter was a prosecution for the death of an employee who had voluntarily put himself in a place of peril in order to stop a runaway truck.

Miljus v Watpow Constructions Pty Limited (2012) 82 NSWLR 597 - The central issue being the definition of a duty owed by a builder to employees of a subcontractor when those employees were injured transporting goods to the building site.

Vero Insurance v Railcorp (NSW) (2013) 65 MVR 39 - The issue was the evidence necessary to be brought by an insurer to validly rely upon an exclusion of deliberate self-harm.

Guiseppe Polese v Stanley Home Units Limited NSWSC 2011/3147 - This matter settled during the hearing, the issue was the respective rights of unit holders to the use of common property in a block of units governed by company title.

Stewart (a bankrupt) by his Trustee in bankruptcy Paul Leroy v City Plan (Gosford) Pty Limited and M & R Insurance Brokers Pty Limited - This matter settled before trial, the issue of interest was the liability of an insurance broker in circumstances where the policy of insurance issued by the insurer is not in conformity with the agreement reached between the broker and the company.

ANZ Banking Group v Silvana Moore NSWSC 215/00248912 - This matter resolved prior to hearing. The central issue being what level of advice and information was necessary to be given to a guarantor to ensure the guarantor was voluntarily undertaking the financial obligation.

McCarthy v Wangs Massage and Medicine Pty Limited NSWDC 2015 - This matter resolved during hearing, the central issue was the question of vicarious liability of an employer for the criminal actions of an employee.

Rooth v S Brady Industries Pty Limited[2014] FCCA 2415 - The issue was one of interpretation of an award as to whether the transportation of unladen vehicles could be classified as the transportation of goods.

Brown v Sunnyhaven Disability ServicesFWC 2015 - The matter resolved during hearing, the central issue being the exercise of authority and management structures in not-for-profit organisations.

Over the many years of involvement in this area of law, Malcolm has usually acted on behalf of medical institutions (including medical centres) individual medical practitioners and allied and complementary medical practitioners. He has been involved in cases that range from the proper articulation of a big toe to aspects of brain surgery and most body parts in between.

For many years Malcolm has had an involvement in a number of matters relating to family provision either under the Family Provisions Act or the Succession Act. Matters of this kind are noted for their emotional content and the almost overwhelming need for them to be settled prior to trial.