The neglected tort - breach of statutory duty and workplace injuries under the Model Work Health and Safety Law

The tort of 'breach of statutory duty' (BSD) operates at the intersection of private and public law by providing a civil remedy for those whose injuries were sustained as a consequence of a statutory breach. One of the areas where the tort has clear relevance is the area of work health and safety, with the courts almost invariably holding that the breach of a statute primarily designed to protect workers from injury will provide them with a civil remedy as well as having criminal law consequences. The tort continues to be recognised in this area at the highest judicial level in most common law jurisdictions, including Australia. Despite judicial recognition, the BSD action has been neglected by practitioners and criticised by some academics. This article argues that BSD should be revisited and restored to the lawyers' toolkit as a viable alternative action for compensation for some work health and safety injuries. In the past 25 years, the law of work health and safety in Australia has undergone a number of dramatic shifts culminating in the introduction of national model legislation in most Australian jurisdictions in 2012. The article also examines the impact of the introduction of harmonised model legislation on the BSD tort