WHS Breach Analysis
& Liability Assessment
Independent assessment of duty holder obligations, breach of duty and reasonably practicable controls for Australian courts and tribunals. Plaintiff and defendant instructions accepted nationally.
What Is a WHS Breach Analysis
A WHS breach analysis is a structured expert assessment of whether a duty holder failed to meet their obligations under Work Health and Safety legislation. It examines the specific circumstances of a workplace incident and evaluates whether the controls in place were adequate, whether the risk was foreseeable and whether the duty holder took all steps that were reasonably practicable to eliminate or minimise the risk.
In legal proceedings, a breach analysis provides the court with independent technical opinion on questions that require WHS expertise. Courts and tribunals in Australia are not expected to have specialist knowledge of WHS standards, risk management methodology or workplace safety practice. The expert's role is to explain these matters clearly and give an opinion grounded in professional experience.
Karim Ali conducts breach analyses for both workers' compensation and public liability matters. His assessments cover the full range of incident types, from slips, trips and falls to contractor management failures, machinery incidents and psychosocial injury claims.
The Standard: Reasonably Practicable
The central legal test in most WHS liability matters is whether the duty holder did what was reasonably practicable to ensure the health and safety of workers and others. This is not a strict liability standard. It requires weighing the likelihood and severity of harm against the cost and practicability of the available controls.
Applying this test requires specialist knowledge of WHS risk management practice, industry standards and the controls that were available and commonly used at the time of the incident. This is where expert opinion is necessary.
Whether the risk was reasonably foreseeable, what controls were reasonably practicable, whether those controls were implemented, and whether any failure in controls contributed to the incident and injury.
Duty Holder Identification Under the WHS Act
The Work Health and Safety Act 2011 imposes duties on different categories of persons. A breach analysis begins by identifying which duty holders are relevant to the incident and what obligations each owed at the time.
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Person Conducting a Business or Undertaking (PCBU)
The primary duty holder under the WHS Act. A PCBU must ensure the health and safety of workers and others so far as is reasonably practicable. This applies to employers, principal contractors, labour hire companies and other business operators.
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Officers
Directors and senior managers who have significant influence over the management of a PCBU owe a personal duty of due diligence. Officers must take reasonable steps to ensure the PCBU meets its WHS obligations.
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Workers
Workers have duties to take reasonable care for their own health and safety and that of others, and to cooperate with reasonable WHS instructions given by the PCBU. These duties are relevant where worker conduct is in issue.
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Designers, Manufacturers and Suppliers
Persons who design, manufacture, import or supply plant, substances or structures used at workplaces owe duties in relation to the safety of those items. These duties are relevant in machinery and product liability matters.
The Reasonably Practicable Standard
Section 18 of the Work Health and Safety Act 2011 defines what is reasonably practicable. The assessment requires weighing a number of factors. In a breach analysis, Karim applies this test to the specific circumstances of the matter, drawing on his experience across high-risk industries and his knowledge of industry standards and common practice at the time of the incident.
The assessment is not carried out with the benefit of hindsight. The question is what a reasonable PCBU in the same position would have done at the time, with the knowledge available at the time.
Section 18 WHS Act Factors
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Likelihood of Hazard or Risk Occurring
How probable was it that the hazard would result in harm, given the specific workplace conditions and activities at the time.
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Degree of Harm
The potential severity of injury or harm that could result if the hazard was not controlled, including the number of people potentially affected.
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Knowledge of the Hazard and Controls
What the duty holder knew, or ought reasonably to have known, about the hazard and the ways of eliminating or minimising it at the time.
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Availability and Suitability of Controls
Whether the means of eliminating or minimising the risk were available, suitable for the work environment and capable of being implemented at the time.
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Cost of Controls
The cost of eliminating or minimising the risk, assessed proportionately against the degree of risk. Cost does not outweigh the duty where the risk is significant.
What the Breach Analysis Covers
Each breach analysis is shaped by the specific questions raised in the letter of instruction. The following areas are commonly addressed across workers' compensation and public liability matters.
Assessment of whether the risk that materialised was reasonably foreseeable by a competent PCBU in the same position at the time of the incident. Foreseeability is assessed against the knowledge available in the industry, not with hindsight.
Assessment of whether the controls implemented by the duty holder were adequate to address the risk. This includes review of the hierarchy of controls applied and whether higher-order controls were reasonably practicable in the circumstances.
Identification of the contributing risk factors that led to the incident, and assessment of the causal connection between any failure in controls and the injury or harm that resulted.
Review of the broader WHS management system, including policies, procedures, training records, risk assessments and supervision arrangements, to assess whether systemic failures contributed to the incident.
Analysis of where the controls implemented by the duty holder sat within the hierarchy, and whether higher-order controls such as elimination, substitution or engineering controls were reasonably practicable alternatives.
Comparison of the duty holder's practices against the applicable industry standards, codes of practice and guidance material in force at the time of the incident. Departure from published standards is relevant to the breach assessment.
Evidence Review & Analysis Process
A WHS breach analysis is conducted in a structured sequence. Each step builds on the last to produce a well-grounded, defensible expert opinion.
Letter of Instruction Review
The scope is defined by the questions raised by the instructing solicitor or barrister. Each question is answered in the report.
Document Evidence Review
Full review of all documents provided, including incident reports, safety policies, risk assessments, training records, maintenance logs and photographs.
Duty Holder & Obligation Mapping
Identification of the relevant duty holders and the specific obligations each owed under the applicable WHS legislation at the time of the incident.
Opinion & Report
A clearly reasoned expert opinion addressing each question, prepared in accordance with the applicable court code of conduct and delivered within the agreed timeframe.
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Is a breach analysis the same as an expert witness report?
A breach analysis is a type of expert opinion. It is delivered in the form of an expert witness report that complies with the applicable code of conduct for the relevant court or tribunal. The term breach analysis refers to the substance of the opinion : the assessment of whether a duty holder breached their WHS obligations, rather than the format of the document.
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Can Karim assess breach for both plaintiff and defendant?
Yes. Instructions are accepted from both plaintiff and defendant law firms, as well as insurers and self-represented parties, subject to independence and conflict considerations. The opinion given is the same regardless of who instructs : an honest assessment of the WHS position based on the evidence available.
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What happens if the documents provided do not support a finding of breach?
The expert's duty is to give an honest opinion based on the evidence. If the documents do not support a finding that a duty holder breached their WHS obligations, the report will say so. Solicitors are encouraged to discuss the likely scope and direction of the opinion at the initial inquiry stage to avoid commissioning a report that does not serve the needs of the matter.
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Can the analysis address contributory negligence by the worker?
Yes. Where instructed to do so, the analysis can address the worker's conduct, including whether the worker took reasonable care for their own safety and whether any failure by the worker contributed to the incident. This assessment is conducted alongside, not instead of, the assessment of the PCBU's obligations.
Discuss a Breach Analysis Matter
Contact Karim Ali to discuss the matter, confirm availability and scope, and obtain a fee estimate for the breach analysis.