Enforcement of upstream duties relating to OHS in Victoria: Lessons from proportionate liability?

20 August 2012

As well as a number of “direct duties” on employers, employees and persons in the workplace regarding health and safety, the various statutes in the Commonwealth contain a variety of “upstream duties” on designers, manufacturers, importers and installers of plant and equipment used in the workplace and, indeed, workplaces themselves. These “upstream duties” are not the subject of thorough or consistent enforcement actions largely because of the difficulty and expense of tracking down the offenders and untangling the web of duty holders in respect of any particular circumstance.

This article draws on the concept of proportionate liability and proposes a similar regime whereby the upstream duties might be more regularly and diligently enforced, and therefore adhered to as an extra limb to ensuring health and safety in the workplace.

In the building industry, a policy driver of proportionate liability regimes is that a person ought not pay more than their fair share of the damage suffered by a plaintiff. While this central concept of proportionate liability is sound, its execution has been poor and attracted much criticism. Principal amongst that criticism is the fact that to take advantage of the regime a defendant must, in effect, “put words in the mouth” of a plaintiff. In order to do so, the defendant must contribute to the plaintiff’s case against other persons apart from that defendant. The cost and expense of doing so is borne not by the plaintiff, who does not wish to take advantage of the regime, but by the defendant who wishes to pay for only that proportion of the damage it has caused where it knows, or has a reasonable suspicion, that a separate player has contributed to the plaintiff’s loss.

Despite the poor implementation of the proportionate liability regime the fundamental principle is sound and on that basis we propose that similar principles ought be applied to OHS prosecutions as a method of enforcing the upstream duties while not overtaxing the resources of the inspectorate. If, for example, an OHS defendant who was to be subject to prosecution for a particular offence, considered that an upstream player had contributed to the existence of the occupational risk, permitting that defendant to undertake its own private investigation and lay private charges against the upstream duty holder might be a valuable tool in enforcing those duties.

The suggestion proceeds on the basis that right minded persons would wish the “real” wrongdoer brought to justice. It also acknowledges that the accountability mechanics of s 131 of the OHS Act could conceivably provide little by way of comfort to a primary duty holder under prosecution who considered that an upstream duty holder ought also to be held accountable, but WorkSafe, reasonably, declined to prosecute on the basis that it would be an inefficient use of taxpayer funds.

A proportionate liability type regime wherein primary duty holders the subject of an impending prosecution were permitted to undertake a private prosecution of the relevant upstream duty holder might be the key to better enforcement of upstream duties.  Certainly, the ability for a primary duty holder to bring a third-party prosecution would encourage discussions about OHS during  projects and this in itself would be valuable to secure improved health and safety outcomes.

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This article was first published by Building and Construction Law Journal (2012) Vol 28 BCL 176.



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Ben Davidson

Partner. Melbourne
+61 3 9672 3500


Joseph Barbaro

Partner. Melbourne
+61 3 9672 3052