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[2026] NSWCCA 116
Court of Criminal Appeal (NSW)
2026-07-31
Mitchelmore JA Hamill J Emmett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Burgess v R; Burgess v R [2026] NSWCCA 116
Hearing dates: 15 July 2026
Date of orders: 31 July 2026
Decision date: 31 July 2026
Before: Mitchelmore JA
Hamill J
Emmett J
Decision: (1) Grant leave to appeal in respect of ground 1 and allow the appeal.
(2) Vacate the 21 April 2026 decision and in lieu thereof order that:
(a) In respect of count 1 against the first applicant, the Crown is not permitted to proceed on the basis that the facts alleged in the amended Crown case statement dated 25 March 2026 will, if proved, establish the duty alleged in the first bullet point under “Duty of Care” on page 2 of that document.
(b) In respect of count 1 against the second applicant, the Crown is not permitted to proceed on the basis that the facts alleged in the amended Crown case statement dated 25 March 2026 will, if proved, establish the duty alleged in the first bullet point under “Duty of Care” on page 3 of that document.
(3) Refuse leave to appeal in respect of appeal ground 2.
Original judgment source is linked above.
Catchwords: CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — where business-owner applicants charged with manslaughter by criminal negligence — where load being transported by truck alleged to have been inadequately restrained leading to a death on the road — where Crown case asserted duty of care owed by the applicants in their capacity as managers of business transporting the load — alleged negligence by omission or failure to implement safety procedures — whether primary judge erred in ruling that Crown case could proceed against the applicants on the basis of a duty of care in connection with applicants’ involvement in management of their business — whether facts alleged by Crown capable of establishing a duty of care that might form the basis of conviction for manslaughter by criminal negligence — principles for establishing duty of care in such circumstances considered
CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — leave to appeal — where Crown concession in oral submissions meant no dispute between parties about principal legal question raised by second ground of appeal — whether utility in granting leave to appeal in respect of second ground
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), s 139(5)
Cases Cited: AF v R [2015] NSWCCA 35
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Cittadini v R [2009] NSWCCA 302
Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956; [2024] HCA 25
Miller v Miller (2011) 242 CLR 446; [2011] HCA 9
Mitchell v Glasgow City Council [2009] 1 AC 874; [2009] 2 WLR 481
Nydam v The Queen [1977] VR 430
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
R v Evans [2009] 1 WLR 1999; [2010] 1 All ER 13
R v F (2002) 129 A Crim R 126; [2002] NSWCA 125
R v Miller [1983] 2 AC 161; [1983] 2 WLR 539
R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316
R v Pocock (1851) 5 Cox CC 172; 17 QB 34
R v Taktak (1988) 14 NSWLR 226; (1988) 34 A Crim R 334
Turnbull v R [2016] NSWCCA 109
Texts Cited: Sir James Fitzjames Stephen, A History of the Criminal Law of England, (1883, Macmillan and Co), vol 3
Peter Gillies, Criminal Law (2nd ed, 1990, Law Book Co)
Category: Principal judgment
Parties: Blake Allan Burgess (First Applicant)
Gregory John Burgess (Second Applicant)
Rex (Respondent)
Representation: Counsel:
S Holt KC / R Kurz (First Applicant)
S Howell / H Skinner (Second Applicant)
K Jeffreys / C Tran (Respondent)
Solicitors:
Jasper Fogarty Lawyers (Applicants)
Director of Public Prosecutions (Respondent)
File Number(s): 2023/00223445
2023/00223451
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicants, Blake and Gregory Burgess, are each charged with two counts in the District Court:
(1) manslaughter by criminal negligence (count 1); and
(2) being accessories before the fact to the offence of dangerous driving occasioning death (count 3)
The applicants sought leave in this Court to appeal from interlocutory decisions made by Bennett SC A-DCJ which affect the scope of the Crown case in relation to counts 1 and 3 against them.
The charges arise from an incident on 6 August 2021 involving a load of steel products being transported by Steeline FNW. During the journey, a roll of steel wire fell from the semi-trailer and struck another vehicle, killing the driver. The Crown alleges that the roll of wire was poorly or inadequately secured. On the Crown case, both applicants were involved in loading the roll of wire, and both applicants were also involved in the management of Steeline FNW.
For the purpose of count 1 against each applicant, the Crown alleged that the applicants were criminally negligent both in respect of their roles in loading the trailer (‘loader duty’) and in respect of their roles as managers who were responsible for that activity (‘manager duty’).
The applicants’ trial was originally fixed to commence on 19 May 2025. At the commencement of the trial, the applicants sought that counts 1 and 3 be quashed or permanently stayed against them. The primary judge refused those applications on 23 May 2025 (the ’23 May 2025 decision’). The trial was subsequently delayed because of a plea of guilty made by one of the applicants’ co-accused.
In April 2026, in response to an amended Crown case statement, the applicants sought a ruling from the primary judge that the alleged ‘manager duty’ did not exist (ie, the duty of care in connection with the applicants’ involvement in the management of the business). This application was refused by the primary judge, who held that the Crown case could “proceed as it proposed” on 21 April 2026 (the ’21 April 2026 decision’).
The applicants sought to appeal against the 23 May 2025 decision and the 21 April 2026 decisions on two grounds, being that the primary judge erred in:
(1) permitting the Crown to proceed against the applicants on count 1 on the basis of a duty of care ‘as a person concerned in management’ of a business; and
(2) holding that on count 3 the Crown need prove only that each applicant knew the configuration of the load and the restraints, rather than actual knowledge of the inadequacy of the restraints.
The Court (Mitchelmore JA, Hamill and Emmett JJ) held, allowing the appeal in respect of ground 1, and refusing leave to appeal in respect of ground 2:
Ground 1: Duty of care for which the Crown contended
(1) General principles for involuntary manslaughter by criminal negligence, where negligence by omission is alleged, considered: [34]-[46].
Nydam v The Queen [1977] VR 430 considered; R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 applied; Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 applied; R v Taktak (1988) 14 NSWLR 226; (1988) 34 A Crim R 334 applied; R v Evans [2009] 1 WLR 1999; [2010] 1 All ER 13 considered; R v Miller [1983] 2 AC 161; [1983] 2 WLR 539 considered; R v Pocock (1851) 5 Cox CC 172; 17 QB 34 considered.
(2) The Court considered and explained the duty of care accepted as capable of arising in R v Moore (2015) 91 NSWLR 276 [49]-[71]. For Simpson JA and Bellew J, who were in the majority on the relevant ground, the duty was based in part (but not solely) on the fact that the accused played a causative role in the sequence of events which gave rise to the risk of injury: [72].
R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 considered; Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 considered; R v Evans [2009] 1 WLR 1999; [2010] 1 All ER 13 considered; Mitchell v Glasgow City Council [2009] 1 AC 874; [2009] 2 WLR 481 considered; R v Taktak (1988) 14 NSWLR 226; (1988) 34 A Crim R 334 considered.
(3) The Court considered the situation where an accused is said to have voluntarily assumed responsibility for the safety of a dangerous activity or is voluntarily employed in an occupation that bears on public safety: [74]-[85]. While the voluntary assumption of responsibility for the safety of a dangerous activity may be a relevant consideration, it is not a touchstone for the existence of a duty of care, or by itself creates a duty of care for the purpose of a prosecution for manslaughter based on gross or criminal negligence: [74].
Cittadini v R [2009] NSWCCA 302 considered; R v Taktak (1988) 14 NSWLR 226; (1988) 34 A Crim R 334 considered; R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 considered; Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 considered; Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956; [2024] HCA 25 considered; R v Pocock (1851) 5 Cox CC 172; 17 QB 34 considered.
(4) The Court noted caution when an analysis by reference to salient features was invoked. An incremental and analogical approach is necessary: [77], [86].
Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956; [2024] HCA 25 applied; R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 considered.
(5) It is possible that a personal duty of care might be owed by an individual in a managerial position in a company to people whose lives were put at risk by a dangerous activity the individual caused the business to engage in, or by a dangerous state of affairs that the individual played a causative part in creating: [86]. However, the facts alleged by the Crown involved neither acts nor conduct by which the applicants played a causative part in the creation of the danger, nor acts nor conduct by which the applicants personally assumed responsibility for the safety of the dangerous activity (putting to one side their roles in loading the trucks): [87].
R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 distinguished.
(6) Accordingly, the primary judge erred in deciding that the Crown should be permitted to proceed as proposed in relation to the duty alleged to arise out of the applicants’ managerial roles: [90].
Ground 2: As to the utility of ground 2
(7) The Crown made a concession in its oral submissions which meant that there was no dispute between the parties about the principal legal question raised by ground 2: [101]. In light of the Crown’s concession, there was no utility in granting leave to appeal in respect of ground 2: [108].
Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024) 281 CLR 338; [2024] HCA 27 considered.
The applicants are each charged in the District Court with two counts, being manslaughter by criminal negligence (count 1) and being accessories before the fact to the offence of dangerous driving occasioning death (count 3). They are being tried together with co-accused William Strong, who is also charged with the manslaughter by criminal negligence count (count 1) as well as with the offence – as principal – of dangerous driving occasioning death (count 2).
The applicants seek leave in this Court to appeal from interlocutory decisions made by the primary judge which affect the scope of the Crown case in relation to counts 1 and 3 against them.
The charges arise from an incident on 6 August 2021 involving a load of steel products being transported by semi-trailer by a corporate group described in the evidence as ‘Steeline FNW’, between its premises in Toowoomba and its premises in Grafton. Steeline FNW operates a business involving the manufacture and transport of steel products. The load included wire products, coiled in rolls, which were placed on two pallets against the headboard of the truck’s trailer, on top of other steel products. The rolls of wire were strapped together horizontally with FROMM plastic straps and were secured vertically with two ratchet webbing straps which were placed over the top of the pallets and attached to the trailer. During the journey, a roll of wire, weighing 26.5 kg, fell from the trailer of the truck and struck another vehicle, killing the driver, Martin Stait. The Crown alleges that the roll of wire was poorly or inadequately secured.
The roll of wire had been loaded onto the trailer at the premises of Steeline FNW on the previous day, 5 August 2021. Both applicants are alleged to have been involved in loading the roll of wire. On the Crown case, both applicants were also involved in the management of Steeline FNW. For the purposes of count 1 against each applicant, the Crown alleged that the applicants were criminally negligent both in respect of their roles in loading the trailer (described in submissions as their alleged ‘loader duty’) and in respect of their roles as managers who were responsible for that activity (described in submissions as their alleged ‘manager duty’).
Mr Strong is alleged to have been the driver of the truck at the time of the accident. Adam Ohlmeyer, who was another driver of the truck at times during the journey, was also charged and in May 2025 pleaded guilty to count 1.
The applicants’ trial was originally fixed to commence on 19 May 2025. At the commencement of the trial, the applicants made a number of applications, including that:
counts 1 and 3 against the applicants be quashed on the basis that, as particularised, neither charge involved an offence known to the law; and
the District Court permanently stay both counts on the basis that they were doomed to fail.
The primary judge refused these applications on 23 May 2025 (the ‘23 May 2025 decision’).
The trial did not proceed in May 2025, due to the guilty plea by Mr Ohlmeyer, after which the Crown indicated that it proposed to call him in the Crown case.
On 25 March 2026, the Crown provided an amended Crown case statement. The allegations in that amended Crown case statement about the alleged duties of care are described further below. In April 2026, the applicants sought a ruling from the primary judge that the alleged ‘manager duty’ does not exist (ie, the duty of care in connection with the applicants’ involvement in the management of the business).
On 21 April 2026, the primary judge refused the applicants’ application and decided that the Crown could “proceed as it proposed” (the ‘21 April 2026 decision’).
On 24 April 2026, the applicants sought leave to appeal from the 23 May 2025 decision “insofar as it related to the mental element required for count 3” and from the 21 April 2026 decision. The applicants require an extension of time to appeal from the 23 May 2025 decision.
Ground 1 challenges the decision that the Crown should be permitted to proceed against the applicants on count 1 on the basis of a duty of care “as a person concerned in management” of a business. Ground 2 contends that the primary judge erred in holding, for the purposes of count 3, that the knowledge requirement would be met by the Crown proving that each applicant knew the configuration of the load and restraints, without necessarily proving actual knowledge that the restraints were inadequate.
The substantive relief sought in this Court is:
- On Ground 1, an order setting aside the ruling of Bennett SC A-DCJ delivered on 21 April 2026 and published as R v Strong, Ohlmeyer, Burgess & Burgess [2026] NSWDC 107 to the extent it permits the Crown to proceed against the applicants on Count 1 on the basis of the manager duty; and a declaration that the duty of care identified in the Amended Crown Case Statement dated 25 March 2026 as the “manager duty” is not a duty of care known to law for the purposes of the prosecution against either applicant for involuntary manslaughter by criminal negligence.
- On Ground 2, an order setting aside so much of the ruling of Bennett SC A-DCJ delivered on 2[3] May 2025 and published as R v Strong, Ohlmeyer, Burgess & Burgess [2025] NSWDC 243 at ([87]-[88]) as held that the Crown need prove only that each applicant knew the configuration of the load and the restraints; and a declaration that, on a charge under ss 346 and 52A(1)(c) of the Crimes Act 1900 (NSW) where the principal’s driving is alleged to be dangerous because the load was inadequately restrained, the Crown must prove that each accused had actual knowledge of the inadequacy of the restraint and that knowledge of the physical configuration of the restraints as applied, or knowledge of a mere possibility of inadequacy is not sufficient.
The trial judge erred in permitting the Crown to proceed against the applicants on Count 1 on the basis of a duty of care ‘as a person concerned in management’ of a business as such a duty is not known to law.
The argument below in relation to count 1 was attended by some complexity. In order to understand the disposition of the application to this Court, it is necessary to canvass this in more detail.
In the Crown case statement as it stood prior to the May 2025 applications, the Crown alleged that both applicants owed what may conveniently be described as a ‘loader duty’ and a ‘manager duty’. These expressions should be understood as labels for the two duties alleged by the Crown and not as necessarily reflecting established legal relationships or the sole fact (at least in this Court) on which the Crown relies to establish that a duty exists.
In response to a request for further particulars in respect of count 1, a solicitor acting for the Crown sent an email which included the following (the paragraph numbers corresponding to the numbered requests for particulars):
1A. The duties of the accused to the deceased in their capacity as managers of the business fall within their common law duty arising from their voluntary assumption of a role which bears upon public safety (cf: R v Taktak (1988) 14 NSWLR 226 at 238);
1B. The duties of the accused to the deceased in loading the trailer fall within, a) their common law duty to take proper precautions in dealing with dangerous things (cf. R v Taktak at 236); and b) their common law duty arising from their voluntary assumption of a role which bears upon public safety (cf. R v Taktak at 238).
2A. The breach of duty by the accused in their capacity as managers of the business was the omission to implement adequate systems and procedures for the safe loading and transport of goods.
2B. The breach of duty by the accused as loaders was the loading of the trailer in a way that was inadequate as particularised in the Annexure to the Crown Case Statement.
- The breach of duties by the accused resulted in the load being inadequately restrained. As a result of the inadequate load restraint, the load failed, as referred to in the Annexure to the Crown Case Statement. As a result of the load failing, a roll of wire fell from the trailer. While it was in motion through falling from the trailer, it impacted with the vehicle driven by the deceased, and with the deceased. That impact resulted in the death of the deceased.
- The applicants deny that, as managers of the business, they owe a duty of care to road users. However, the Crown asserts that, as the applicants had voluntarily assumed roles in the management of Steeline FNW’s transport operations, they had a duty to take reasonable steps to conduct the transport operations of Steeline FNW in a way that did not expose road users to the risk of death or serious injury. That duty falls within the common law duty of care arising from voluntary employment in an occupation which bears upon public safety, as outlined in Taktak. That is what is meant by the particularised duty to ensure that the activities of the business did not expose other road users to the risk of death or serious injury.
- The following factors support that the applicants owed a duty to road use[r]s arising from their position in the management of the business:
a. A reasonable person in the applicants’ position would for[e]see a risk of serious injury or death to road users from the transportation of truckloads of steel products by road;
b. Road users are vulnerable, as they have no control over the manner in which the business transports goods and are unaware of the dangers posed.
c. The applicants have assumed responsibility for safety of the transportation activity;
d. The applicants have control over the transportation activity and the ability to direct that steps be taken for the safe transport of products;
e. The cost of conducting transport activities in a safe way is a reasonable business overhead.
In this Court, the Crown confirmed its reliance on these paragraphs as providing further particulars relevant to the amended Crown case statement that would come to be filed on 25 March 2026.
In the 23 May 2025 decision, the primary judge rejected the applicants’ arguments in relation to both duties. The applicants have not cavilled with the primary judge’s conclusion that the alleged facts provided a basis for the loader duty. In this Court, it was common ground that the facts alleged in the Crown case statement, so far as they concerned the applicants’ role in loading the truck, would establish that a duty of care was owed capable of supporting a conviction for manslaughter by criminal negligence.
There is some doubt about whether his Honour regarded himself as ruling on a single duty, or two separate duties. In the 23 May 2025 decision, the primary judge did not clearly delineate between the two duties. The reasons included the following:
- My understanding of the Crown case in these proceedings is that the conduct upon which the alternative bases rely are substantially the same facts, the negligence resting in the process in which the spools of wire product were loaded onto and secured to the trailer, with the same conduct relied upon for the proposition in the first and second alternatives advanced by the Crown. There is no requirement for the jury to reach a verdict upon a unanimous finding as to the basis for the liability of Blake and Gregory Burgess for negligent manslaughter. I do not accept the submission that the alternative[s] do not depend substantially on the same facts but upon discreet (sic) acts and omissions.
…
- I accept that the Crown’s use of the concept of ‘voluntary assumption’ is upon the basis of the duty owed by [the applicants] from their management roles in the loading procedures, and in the work they performed in loading the trailer: R v Taktak (1988) 14 A Crim R 334 at 345. I accept that this is available to the Crown upon the evidence of which the court is so far aware.
Consistent with there being a lack of clarity about whether the Crown alleged one duty or two duties, the Crown’s oral submissions to his Honour referred to a duty with “two limbs”. The Crown also submitted that the applicants’ status as managers informs the duty they owed as loaders.
By the time of the argument in April 2026, the applicants accepted by reference to the High Court’s decision in Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 that, so far as the loader duty is concerned, the fact that each was a “manager” could be a feature ascribed to the reasonable person as part of the assessment of the standard of care to be applied, including that any special knowledge that each applicant had might be relevant to how a reasonable person with that knowledge would act. Their managerial roles will, at least in this respect, be relevant to the jury’s assessment of whether the loader duty was breached and, if so, whether the breach was serious enough to amount to manslaughter by criminal negligence.
When the Crown served the amended Crown case statement on 25 March 2026, it included the following in respect of the first applicant so far as the ‘manager duty’ was concerned:
Duty of Care
The accused was the manager of a company, the business of which included the transportation by road of goods that were potentially dangerous by virtue of their nature, size, and weight. The accused had a duty to take reasonable steps to avoid the risk of death or serious injury to road users (including the deceased Martin Stait) from the transportation activities of the business.
…
Content and standard of care
The scope of the duty of care owed by the accused as a manager of the company included the duty to take reasonable steps to implement systems and procedures for the transport activities of the business to be conducted in a way that avoided exposing other road users to the risk of death or serious injury. The duty included taking reasonable steps for vehicle loaders and drivers to understand and follow the industry Performance Standards and Load Restraint Guide, and taking reasonable steps to implement plans and procedures for the safe transport of dangerous goods.
…
Breach of duty
The accused breached his duty of care as a manager by failing to take reasonable steps to implement, or ensure the implementation of, adequate systems and procedures for the safe loading, restraining, and transportation of goods.
…
As a result of the breaches of duty, a roll of wire fell from the vehicle, causing the death of Martin Stait.
Duty of Care
The accused was a person concerned in the management of a company, the business of which included the transportation by road of goods that were potentially dangerous by virtue of their nature, size, and weight. The accused had a duty to take reasonable steps to avoid the risk of death or serious injury to road users (including the deceased Martin Stait) from the transportation activities of the business.
…
Content and standard of care
The scope of the duty of care owed by the accused as a person concerned in the management of a company included the duty to take reasonable steps to implement systems and procedures for the transport activities of the business to be conducted in a way that avoided exposing other road users to the risk of death or serious injury. The duty included taking reasonable steps for vehicle loaders and drivers to understand and follow the industry Performance Standards and Load Restraint Guide, and taking reasonable steps to implement plans and procedures for the safe transport of dangerous goods.
…
Breach of duty
The accused breached his duty of care as a person concerned in management by failing to take reasonable steps to implement, or ensure the implementation of, adequate systems and procedures for the safe loading, restraining, and transportation of goods.
…
As a result of the breaches of duty, a roll of wire fell from the vehicle, causing the death of Martin Stait.
The Crown will maintain that the accused Blake Burgess and Greg Burgess owed duties arising from their assumption of responsibility for the supervision and management of the transport activities of the FNW Steeline business. While this has been described as the “manager duty”, it does not depend on the accused having a particular job title, or having a pre-existing category of relationship with the deceased.
The specific acts that it is alleged each accused did not do include:
- Taking steps for loaders and drivers to be adequately trained in transport safety and load restraint;
- Implementing safe loading procedures and plans for steel goods transported, including rolls of wire;
- Implementing arrangements for loading and load restraint to be done by trained and competent loaders;
- Implementing systems for checking and/or auditing loading and load restraint practices;
- Implementing systems for checking and maintaining the mechanical safety and adequacy of equipment used in the transport activities;
If it is proved (by evidence or agreement) that Blake Burgess and Greg Burgess also loaded the particular truck in question, then they also owed the duties alleged (the so-called “loader duty”) arising from that particular activity.
Regardless of the duties that the Court allows the Crown to rely on (i.e. whether the so-called “manager duty” may be alleged), the Crown will press all evidence that relates to the safety of the conduct of the transport activities of the business.
- As I noted, use of the phrase “manager duty” was introduced in the accused’s submissions with the implication that it reflects how the accused perceives the Crown case.
- As I understand, what the Crown argues it is particular conduct or omissions by the accused that they performed or failed to perform in their role as managers, in which they voluntarily assumed responsibility for the risk of harm to road users proximate to the trailer load as it continued on the journey undertaken. Rather than a specific array of obligations arising from a recognized relationship between them as managers of the business and road users generally, or that attach by force of the legislation provided in the National Heavy Vehicles scheme, which is not the basis of the liability that I understand the Crown to be pursuing, it is the conduct or the failure to act on the part of the accused in the circumstances in which they voluntarily assumed responsibility for the risk of harm ,which the Crown intends to argue to the jury was negligent such that they are liable for manslaughter.
- I agree with the accused’s observation to which I earlier referred that this case should be a simple one, involving consideration of how the trailer was loaded, how that compared with the way in which a reasonable person in the accused’s position would have loaded it, and whether there was a departure amounting to criminal negligence.
- Whether as a loader, or as a manager with the assumption of risk for which the Crown contends, the proposed Crown case, which does not elevate the term “management duty” in the way that the accused submit it does, does not involve novel concepts or fall outside of the scope of the principles application to an allegation of negligent manslaughter.
- As noted in my earlier judgement, beneath the heading Consideration, the method deployed to secure the rolls of wire, the inadequacy of the restraints, and reasons for the failure of the load, are factual matters within the province of the jury, however if the evidence of these facts is accepted, it is sufficient to prove that the method deployed in securing the load to the trailer was inadequate with a patent risk that the restraints would fail and the load lost.
(5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the trial Judge in the proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding.
His Honour was not of the opinion contemplated by this provision. Accordingly, his Honour regarded his ruling in the 23 May 2025 decision as binding.
The primary judge’s decision was:
The Crown may proceed as it represents its intention to do so presenting a case against the accused Blake Allan Burgess and Gregory John Burgess for negligent manslaughter in respect of their acts and omissions when loading the subject vehicle, and in respect of their acts and omissions when as managers of the enterprise they voluntarily assumed responsibility for the risk of harm to road users proximate to the trailer load as it continued on the journey undertaken.
The decision that was recorded in the titular material of the published reasons (currently subject to publication restrictions) is: “The Crown may proceed as proposed.”
The primary judge also refused a certificate under s 5F(3)(b) of the Criminal Appeal Act 1912 (NSW) on the basis that his Honour regarded the decision as replicating what had previously been decided.
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.
This statement (adopted and approved on many occasions) is framed on the basis that the Crown sets out to prove that the accused did a particular act, consciously and voluntarily, which caused the death of the victim. The position becomes more difficult where, as here, the Crown advances a case based in part on alleged omissions.
At least where negligence by omission is alleged, a conviction for manslaughter by criminal negligence can be sustained “only where the person accused was under a legal duty to act in a particular way — that is, to do the specific act the omission of which was the cause of death”: R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 at [145]-[146] (‘Moore’). The applicants and the Crown before this Court both accepted that in the circumstances of this case the Crown must allege, and establish beyond reasonable doubt at trial, that each applicant owed a duty of care which was breached in a criminally negligent way.
The question whether a given set of facts gives rise to a duty of care is a question for the judge. The question whether the facts exist is a question for the jury: Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 (‘Burns’) at [20] per French CJ; Moore at [148].
In Burns at [22], French CJ embraced what his Honour described as a frequently cited, albeit non-exhaustive, taxonomy that may support a charge of involuntary manslaughter – at least where the allegation is of criminally negligent omission – set out by Yeldham J (Loveday J agreeing) in R v Taktak (1988) 14 NSWLR 226; (1988) 34 A Crim R 334 (‘Taktak’) at 243-244. Criminal liability may arise for breach of a duty of care owed to another where:
(a) a statute imposes the duty; (b) the duty arises from a certain status relationship (such as parent and child, employer and employee, doctor and patient); (c) the duty arises from a contract; or (d) the duty arises from the voluntary assumption of the care of another, so secluding a helpless person as to prevent others from rendering aid.
It is appropriate to stress that the “assumption of responsibility” addressed by Yeldham J in Taktak was the voluntary assumption of care of a helpless person. When the lens is sought to be widened, to consider the voluntary assumption of responsibility for the safety of a particular worksite or a particular dangerous activity, different considerations may arise. Taktak does not provide authority for the proposition that a duty of care necessarily arises in the latter situations. These reasons return to this below.
Chief Justice French went on to say in Burns at [23] that a duty of care may also arise where a defendant has played a causative part in the sequence of events which have given rise to the risk of injury. In Burns at [102]-[107], the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) similarly accepted that a person may come under a duty to act where they have created or contributed to the creation of a state of affairs which they know, or ought reasonably to know, has become life-threatening (citing R v Evans [2009] 1 WLR 1999; [2010] 1 All ER 13) or where they become aware that they have done a physical act which, whether or not they appreciated it at the time, does in fact create a risk of the relevant harm (citing R v Miller [1983] 2 AC 161; [1983] 2 WLR 539, where the offence was arson and the relevant harm damage to property). The plurality at [105] expressly declined to decide whether it is a general principle in Australia that whenever a defendant’s act imperils an interest protected by the criminal law (for present purposes, life) and the defendant becomes aware of the events creating the peril, the defendant has a duty to take reasonable steps to prevent the peril from resulting in the harm in question. Their Honours stressed at [107] that courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act.
In argument before this Court, the applicants and the Crown both contended that this Court should be guided, in assessing whether a duty to act may have arisen in this case, by some of the passages cited by Yeldham J in Taktak in his Honour’s analysis of the circumstances in which a person’s omissions, failure or neglect to act may render them liable for manslaughter by criminal negligence. At 236, Yeldham J cited a passage from Stephen, History of the Criminal Law of England (1883), vol III at 10-11, a passage also cited by Bathurst CJ in Moore at [62], that included the following:
By the law of this country killing by omission is in no case criminal, unless the thing omitted is one which it is a legal duty to do. Hence, in order to ascertain what kinds of killing by omission are criminal, it is necessary, in the first place, to ascertain the duties which tend to the preservation of life. They are as follows:— A duty in certain cases to provide the necessaries of life; a duty to do dangerous acts in a careful manner, and to employ reasonable knowledge, skill, care, and caution therein; a duty to take proper precautions in dealing with dangerous things; and a duty to do an any act undertaken to be done, by contract or otherwise, the omission of which would be dangerous to life. Illustrations of these duties are the duty of parents or guardians, and in some cases the duty of masters, to provide food, warmth, clothing, etc, for children; the duty of a surgeon to employ reasonable skill and care in performing an operation; the duty of the driver of a carriage to drive carefully; the duty of a person employed in a mine to keep the doors regulating the ventilation open or shut at proper times.”
Legally recognised duties of care can also arise in other situations. Typically, they arise by virtue of [a defendant’s] voluntary employment in an occupation the performance of which bears upon public safety. Thus, the railway gate-keeper is under a duty to shut the gate before a train comes and if owing to neglect the gate-keeper does not do so, with the result that a road-user is run down by a train and killed, he or she is prima facie guilty of manslaughter. Likewise, an old English case upheld the conviction for manslaughter of a man who had, while employed to manage an engine used to haul miners up from a coal-mine, left his post leaving it in the charge of an incompetent person. Shortly after he did this, and as a consequence of the substitute’s lack of skill, a miner had been thrown down the shaft and killed. It was explained that “a man may, by a neglect of duty, render himself liable to be convicted of manslaughter …”.
In all the cases of indictment for manslaughter, where the death has been occasioned by omission to discharge a duty, it will be found that the duty was one connected with life, so that the ordinary consequences of neglecting it will be death.
We return to this below.
Demonstrating that there is a duty is only the first step, although it is the principal issue on this appeal. As Stephen went on to say in the passage cited by both Yeldham J in Taktak at 236-237 and Bathurst CJ in Moore at [62]:
To cause death by the omission of any such duty is homicide, but there is a distinction of a somewhat indefinite kind as to the case in which it is and is not unlawful in the sense of being criminal. In order that homicide by omission may be criminal, the omission must amount to what is sometimes called gross, and sometimes culpable negligence. There must be more, but no one can say how much more carelessness than is required in order to create a civil liability. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused. No rule exists in such cases. It is a matter of degree determined by the view the jury happen to take in each particular case.
The Crown in this Court did not contend that the present situation is an established category of case in which a duty of care is recognised. Rather, the Crown contended, by reference to the analysis of Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 (‘Stavar*’*) at [102]-[103] and of Bathurst CJ in Moore at [110]-[116], that a duty of care arose by reason of the combination of the following ‘salient features’:
it was reasonably foreseeable that transportation of steel products by road may cause serious injury or death to road users;
road users have no control over how goods are transported and are unaware of the dangers posed, such that they were vulnerable to the applicants;
the applicants assumed responsibility for the safety of the business’ transport activities;
the applicants had control over the business’ transportation activities;
the cost of conducting transport safely was a reasonable business overhead and thus not prohibitively expensive;
the duty of care was not owed to the world generally but to road users potentially affected by the transportation; and
the asserted duty of care is not inconsistent with any applicable statute.
For the reasons that follow, while this Court does not exclude the possibility of a duty being owed by persons in managerial roles such as the applicants, the Crown’s position in this Court proceeds on a misunderstanding of what this Court held in Moore. The Crown cannot be permitted to proceed in the trial as proposed below or in this Court, and accordingly leave should be granted in respect of ground 1 and the appeal allowed.
The outcome of this appeal turns in large part upon a proper understanding of what was held, by majority, in R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 (‘Moore’).
Mr Moore was the sole director, and also an employee, of KLA Bricklaying Pty Ltd (‘KLA’). KLA engaged another employee, Mr Hands, to undertake bricklaying at a construction site. Mr Hands was killed while working on the construction site when a freestanding wall collapsed on him. In addition to being the sole director of KLA, Mr Moore had signed a “Bricklayers Safety Plan” which named KLA as “trade contractor”. The wall which fell had been built without being braced to any other structure. The intention had been that cupboards would be installed which would stabilise the walls, but the wall fell, causing Mr Hands’ death, before those cupboards were installed. Mr Moore was charged with manslaughter by criminal negligence.
The trial judge had ordered that the indictment be permanently stayed on the basis, relevantly, that the Crown’s case did not disclose a common law duty owed by Mr Moore to found criminal liability. Mr Moore was not Mr Hands’ employer – that was the company, KLA. The duties owed by a corporate employer to its employees are not, per se, owed by a director of the corporate employer: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 (‘Andar’). In summary terms, the trial judge concluded that Mr Moore did not personally owe a duty to Mr Hands, that such a duty was not supported by Andar, and that there was no warrant to impute such a duty in circumstances that appeared to be novel: see Moore at [178]-[182].
The Crown appealed on three grounds: first, that Mr Moore was under a statutory duty imposed by workplace safety legislation (a ground which was not successful and requires no further consideration in this application), second that Mr Moore owed a common law duty to Mr Hands because he “played a direct central causative part in the sequence of events which gave rise to the risk that the wall might collapse” (see Moore at [44], quotation in original), third that the Court should recognise a “novel duty of care” with particular reference made to the salient features analysis in Allsop P’s decision in Stavar.
The Court (Bathurst CJ, Simpson JA and Bellew J) agreed that the first ground should be rejected. The bench differed in respect of grounds 2 and 3, although all three judges agreed that there was a case on duty of care that could and should go to the jury. On a fair reading of the reasons, the majority comprised Simpson JA and Bellew J, who upheld ground 2 and rejected ground 3 with Simpson JA writing the leading judgment. The Chief Justice would have rejected ground 2 and upheld ground 3.
One matter about which all three judges agreed was that Andar did not preclude the possibility of Mr Moore personally owing a duty of care to Mr Hands. Andar holds that it is a corporate employer that owes the employer’s duty to provide a safe system of work, and that a person’s status as director of that company is insufficient to impose on that person a personal duty – and Bathurst CJ goes so far at [68] as to say that this is even where “the director was responsible for the implementation of those parts of the company’s activities which gave rise to a particular claim for breach of duty”. However, this does not preclude the imposition of a duty on an employee – even if that employee is also a director – to take reasonable steps to prevent harm being occasioned to fellow employees: see [75] per Bathurst CJ.
As Simpson JA stressed at [191], Andar can be misunderstood, or taken to convey more than it in fact stands for. While Andar held that a director of a corporate employer does not, qua director, owe the same duties as those owed by the corporate employer itself, that does not preclude a duty being owed by the director qua employee. As her Honour observed at [193], it has long been recognised that one employee might be liable to another employee for injury resulting from a causal act of negligence by the first employee (a liability which the employer may in turn become liable for, by the separate doctrine of vicarious liability). Her Honour concluded at [193]-[194]:
- … The clear implication [from the doctrine of vicarious liability] is that the employee responsible for the injury does have that liability, arising out of a duty of care in accordance with ‘the neighbourhood principle’ stated in Donoghue v Stevenson.
- This is to say no more than that the mere fact that KLA, as employer, owed a duty of care to Mr Hands to provide a safe system of work did not have the corollary that [Mr Moore] could not also owe Mr Hands a duty of care. Whether he did, and if so, what it entailed, will hinge upon the factual circumstances, not all of which were known at the time of the decision, and which were to be the subject of determination by a jury.
Their Honours accordingly turned, in their respective judgments, to the question of whether the prosecution should be permitted to proceed on the basis of ground 2 (a common law duty arising from Mr Moore’s direct causative role in the sequence of events that created the risk) or ground 3 (a novel duty of care based on particular salient features).
Although Simpson JA wrote the leading judgment on ground 2, it is convenient to note first some aspects of the reasons of Bathurst CJ in relation to grounds 2 and 3, as they assist in understanding Simpson JA’s conclusion.
The Chief Justice rejected ground 2 on the basis that a duty of this kind required that “it was the act of the accused or defendant which put the deceased in danger” (see at [101]) and that, as it was not suggested that Mr Moore was responsible for the construction of the wall or its design, Mr Moore’s act did not cause the danger to arise (see at [104]).
In relation to ground 3 – the so-called novel duty of care – the Chief Justice’s central reasoning was as follows:
- In Sullivan v Moody, the court pointed out at [50] that the question of the existence of a duty involves “a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle”. In Stavar, Allsop P at [102] pointed out that “If … the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references [sic] to the ‘salient features’ or factors affecting the appropriateness of imputing a legal duty”. I agree, but would add that any legal reasoning should proceed by way of analogy from decided cases: Crimmins at [74]; Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 at [24]–[25].
- In the present case, as I have indicated, it would be open to the jury to find, as a matter of fact, that it was reasonably foreseeable that there was a danger that the wall would collapse. It would seem to me to follow from this that it was also open to the jury to conclude that it was reasonably foreseeable that such a collapse could cause serious injury or death to persons working in the near vicinity of the wall.
- It would also be open to the jury to conclude that the deceased was vulnerable, in the sense described in cases such as Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [118]; Crimmins at [100]; and Brookfield Multiplex at [130]. If the jury was satisfied that the deceased was unaware of the danger, which the respondent was aware of as a result of his conversation with Mr Didio, then it could be found that the deceased, by reason of his lack of knowledge of the risk, was not in a position to protect himself.
- Further, it would be open to the jury to find that, by signing the Safety Plan, the respondent assumed responsibility for safety on the site. Although assumption of responsibility is not a determinative factor in the question of whether a duty exists, it remains a relevant factor to take into account: Stavar at [103].
- Importantly, it would be open to the jury to find that the respondent had control over the site and the ability to direct that steps be taken to properly secure the wall. The importance of such a power to direct and control has been emphasised in a number of cases: Stevens v Brodribb at 31; Kondis v State Transport Authority (1984) 154 CLR 672 at 687–688; [1984] HCA 61. In Crimmins at [107] McHugh J, with whom Gleeson CJ agreed, emphasised the importance of the power to direct and control (see [71] above).
- Further, it would be open to the jury to find that the wall could be braced at very little cost or inconvenience: see Stavar at [103]. Finally, there is no question in the present case of any indeterminacy of liability. The only persons to whom the respondent would owe a duty were persons working near the site of the wall during the course of the construction.
- In these circumstances, it seems to me that if a jury found these facts, it would be open to the judge to conclude that the respondent owed the duty contended for by the Crown. It cannot be said that such a contention is foredoomed to fail.
…
- It follows that a duty of care could arise if the following facts were established beyond reasonable doubt.
(a) That a reasonable person in the position of the appellant would foresee a risk of serious injury being occasioned to the deceased by reason of the wall not being braced.
(b) That the deceased was vulnerable in the sense that he was unaware of the danger presented by the unbraced wall.
(c) That the respondent had assumed responsibility for safety on the site.
(d) That the respondent had control over the site and the ability to direct that steps be taken to secure the wall.
(e) That the wall could be braced at little cost or inconvenience.
122. As it is possible that these facts could be established, it cannot be said that the Crown case is foredoomed to fail. In these circumstances, the appeal should be allowed.
It will be observed that, of the seven ‘salient features’ relied upon by the Crown in this case, the first five correspond to the five matters addressed by Bathurst CJ at [111]-[115] and summarised at [121].
Justice Simpson, by contrast, upheld ground 2 on the basis of a close reading of the High Court’s decision in Burns and decisions cited therein. Her Honour embraced the observation of French CJ in Burns at [23] and the plurality at [102]-[107] that a duty of care may arise where a defendant has played a causative part in the sequence of events which have given rise to the risk of injury. As Simpson JA observed at [228], this was drawn from the decision of R v Evans [2009] 1 WLR 1999; [2010] 1 All ER 13 at [31] that:
… for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise.
The requisite additional feature that transforms what would otherwise be a mere omission, a breach at most of a moral obligation, into a breach of a legal duty to take reasonable steps to safeguard, or to try to safeguard, the person in question from harm or injury may take a wide variety of forms. Sometimes the additional feature may be found in the manner in which the victim came to be at risk of harm or injury. If a defendant has played some causative part in the train of events that have led to the risk of injury, a duty to take reasonable steps to avert or lessen the risk may arise. Sometimes the additional feature may be found in the relationship between the victim and the defendant: (eg employee/employer or child/parent) … Sometimes the additional feature may be found in the assumption by the defendant of responsibility for the person at risk of injury … In each case where particular circumstances are relied on as constituting the requisite additional feature alleged to be sufficient to cast upon the defendant the duty to take steps that, if taken, would or might have avoided or lessened the injury to the victim, the question for the court will be whether the circumstances were indeed sufficient for that purpose or whether the case remains one of mere omission.”
It will be observed that, in the extract cited by Simpson JA, several “additional features” were identified that can transform a mere omission or a breach of a moral obligation into breach of a legal duty to take reasonable steps. This coheres with the analysis in Taktak, explained above. One of the features identified in Mitchell is that a defendant “has played some causative part in the train of events that have led to the risk of injury” – that is given by Lord Scott as an example of a situation where a duty arises because of “the manner in which the victim came to be at harm of injury”. Alternatively, the additional feature may arise from the relationship between the victim and the defendant. Another possible additional feature is “the assumption by the defendant of responsibility for the person at risk of injury” (emphasis added). This third example is concerned with assuming responsibility for a person, which is consistent with Yeldham J’s observations in Taktak about assuming responsibility for the care of a helpless person.
Turning to the position of Mr Moore at [236], Simpson JA stressed that the victim constructed the wall under the direction of Mr Moore and that Mr Moore was responsible for decisions concerning the wall. In that context at [237], her Honour identified three “additional features”, as identified in Mitchell, which were applicable to Mr Moore:
the manner in which the victim came to be injured;
Mr Moore’s causative part in the train of events that led to the risk of injury; and
the relationship between Mr Moore and the victim, noting that although Mr Moore was not the victim’s employer, he “stood in a quasi-employer position”.
Ultimately, her Honour at [241] grounded her conclusion as to the existence of duty of care on the relationship between two co-employees of the corporate employer, KLA:
- On the evidence available in this case, I would have no hesitation in concluding that the respondent, in his capacity as a co-employee, owed [the deceased] a duty of care. Two circumstances that give to that conclusion are:
(i) his authority over the manner in which Mr Hands performed his work
(ii) his decision-making role with respect to, inter alia, whether the wall was to be braced.
- The far more difficult question is whether the duty extended to requiring the wall to be braced. No conclusion can be reached as to that in the absence of necessary factual findings, which will very likely depend upon the expert evidence.
- In this respect, I agree with what the Chief Justice has said at [112]-[117] and [121].
It is clear from the introductory words, “In this respect”, that her Honour embraced the observations of Bathurst CJ as relevant to the scope of the duty, having discerned a duty on what she regarded as orthodox grounds centred in Mr Moore’s causative part in the train of events leading to injury and in the relationship between Mr Moore and the victim.
In a separate judgment, apparently concurring with both Simpson JA and Bathurst CJ, Bellew J at [258]-[260] said the following in respect of ground 2:
- Simpson JA has made reference to the judgment of French CJ in Burns (at [23]) as well as the judgment of the plurality in that case (at [102]–[107]). Her Honour has also made reference to the judgment of the Court of Appeal in Evans (Gemma) (at [31]). Those decisions postulate particular circumstances in which a duty of care may arise. Those circumstances include where a defendant has played a causative role in the sequence of events which have given rise to a risk of injury. The Crown argued that in the context of the present case, the relevant risk was a risk of collapse of the wall.
- The Chief Justice has set out (commencing at [110]) a number of factors which may render it open to a jury to conclude that the respondent owed a duty of care to the deceased. I agree with the Chief Justice, for the reasons he has expressed, that those factors are capable of supporting such a conclusion.
- It follows that I agree with the Chief Justice and Simpson JA that the appeal should be allowed on the basis of the second ground.
With great respect to Bellew J, this appears to involve a misreading of the Chief Justice’s reasons, which would have rejected ground 2 but allowed ground 3. Nevertheless, the above extract highlights that Bellew J regarded a central matter as being that Mr Moore played a causative role in the sequence of events that gave rise to a risk of injury, and also that his Honour considered that more was required, which could be met, in the particular circumstances of that case, by the factors listed by the Chief Justice. His Honour clearly agreed with Simpson JA that this was not a novel duty of care.
Justice Bellew’s reasons in relation to ground 3 were as follows (at [261]-[263]):
The novel duty
- The Crown approached this issue by enumerating what were said to be various “salient features”, and submitting that such features gave rise to a duty of care. In my view, there are difficulties with that approach.
- Firstly, there was no attempt made to draw any appropriate distinctions between those features which are factual, those which require value judgments and those which may require the application of legal policy: Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 at [172] (Basten JA, Simpson J (as her Honour then was) agreeing). Further, and perhaps even more fundamentally, there was no clear articulation by the Crown of the nature and scope of the posited duty.
- For these reasons, I agree with Simpson JA that Ground 3 should be rejected.
Neither Simpson JA nor Bellew J were willing to recognise any novel duty of care for which the Crown contended.
One difference in relation to ground 2 between Simpson JA (with whom Bellew J agreed) and Bathurst CJ is that Simpson JA and Bellew J did not ask whether there was an alleged act of Mr Moore which caused the danger to arise, but rather whether Mr Moore played a causative part in the sequence of events which gave rise to the risk of injury. This alternative formulation, while it keeps the focus on acts or conduct of the accused, calls for a wider lens. It recognised that Mr Moore’s own acts or conduct might have played a causative part in the train of events that led to the injury, even though Mr Moore did not himself build or design the wall. But it also recognised that more was needed to demonstrate that a duty existed. For Simpson JA, this could be discerned in the relationship between Mr Moore and the victim (ie, they were co-employees with Mr Moore being in a position of “quasi-employer”); for Bellew J, it was the additional factual matters summarised by Bathurst CJ at [121].
Contrary to the way the matter was advanced before the primary judge (in fairness not pressed in the same way in this Court), the existence of a duty of care is not determined simply by asking whether the applicants voluntarily assumed responsibility for a particular risk.
While each of Burns, Taktak and Moore recognise that voluntary assumption of care for a helpless person might give rise to a duty, none of them support a broader proposition that the voluntary assumption of responsibility for the safety of a dangerous activity is a touchstone for the existence of a duty of care, or by itself creates a duty of care for the purpose of a prosecution for manslaughter based on gross or criminal negligence. In Moore at [113], Bathurst CJ recognised that the assumption of responsibility may be relevant but is not determinative. This is one of the paragraphs with which Simpson JA expressly agreed at [243], albeit in the context of determining the scope of the duty, and with which Bellew J agreed at [259].
The voluntary assumption of responsibility, at least as a basis for a duty of care to protect against pure economic loss, is attended by substantial complexity in civil cases. In Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956; [2024] HCA 25 (‘Mallonland’) at [33]-[34], the plurality (Gageler CJ, Gordon, Stewart, Gleeson, Jagot and Beech-Jones JJ) at [33]-[34] said this of a voluntary assumption of risk:
- Where a defendant has assumed a responsibility towards the plaintiff to take reasonable care to avoid economic loss to the plaintiff, a duty of care may well be established. The term “assumption of responsibility” has been criticised as “imprecise and beguiling but deceptively simple”. An assumption of responsibility is best understood as an undertaking (whether express or implied) by a person to take on a task or job for another person or class of persons, from which it can be inferred that the first person accepted that he or she would take reasonable care when engaging in that task or job.
- Where a duty to take reasonable care to avoid causing pure economic loss is said to arise out of an assumption of responsibility by a defendant to a particular person or class of persons, the defendant can negate or limit that assumption and thus the duty by words or conduct directed to that person or class. That is because such a negation or limitation amounts to a denial of an assumption of responsibility on the part of the defendant which the person or class cannot ignore or reject. For example, no duty to avoid causing pure economic loss will arise in connection with the provision of advice or information if the defendant “had effectually disclaimed any responsibility for it”.
Consistent with this, their Honours stressed at [46] that the extent to which the defendant assumed responsibility to the plaintiff depends on an assessment of the entirety of their relationship.
At [37], their Honours emphasised the necessity, when considering whether to recognise a duty of care in a novel case, of “an incremental and analogical approach, paying close attention to relevant precedents and any risk of incoherence in the principles they establish”.
The Crown in this case did not point to a pre-existing relationship between the applicants and the road users, which might mean the applicants had assumed responsibility to the road users. The primary cases to which the Crown pointed in support of an incremental and analogical approach were the examples cited in Taktak about the situation where an accused is voluntarily employed in an occupation that bears on public safety, this Court’s decision in Cittadini v R [2009] NSWCCA 302 (‘Cittadini’), and the decision in Moore itself.
As for the person who is voluntarily employed in an occupation performance of which bears upon public safety (Taktak at 238 citing Gillies), the extract from Gillies set out at [42] above did not describe this as a touchstone for a legal duty of care – rather it says that the “other situations” in which a duty of care has been legally recognised “typically” involve such voluntary employment. Using that formulation as a touchstone becomes circular – if one asks how the performance of the occupation must bear upon public safety, the answer is that it bears upon public safety so directly or so significantly that it warrants the recognition of a duty of care. None of the examples suggest it is sufficient that the person is employed in a position in which they are able to take steps to protect the public, nor could that be consistent with the general recognition that the law does not require a person to act unless they are under a duty to act. As the citation from R v Pocock makes clear, the person’s engagement must require them to perform certain acts, the ordinary consequence of neglect of which would be death (or perhaps serious injury). The engagement must also be such that the law will recognise a personal duty owed to the class of person in question. While it is possible for persons in a managerial position in a business to have such a position, the Crown in this case has not identified facts which would establish that the applicants’ occupations warrant this conclusion.
In Cittadini, the appellant was managing director of a company which contracted with the owner to construct a yacht: see at [30]. Mr Cittadini accepted that he owed a duty of care not only to the owner of the yacht (with whom his company had a contractual relationship) but to anyone who sailed on it (with whom there was no contractual relationship). As the appellant conceded the duty, there is no consideration in the judgment of which facts established that the duty arose. The Crown candidly acknowledges that the decision provides at best “some support” for the existence of a duty. The basis of Mr Cittadini’s concession is of course unknown, but at [22] McClellan CJ at CL (Fullerton and Schmidt JJ agreeing) records that it was common ground that Mr Cittadini was in charge of the construction of the yacht. Clearly, there were facts which established that Mr Cittadini played a causative role in the construction of a vessel to which it was obvious people would entrust their lives.
As for the Crown’s reliance on Moore, a central element for establishing a duty in the assessment of both Simpson JA and Bellew J was Mr Moore’s causative role in the sequence of events which gave rise to the risk of injury. This requires identification of acts or conduct by an accused person which played a causative role. The facts to which Simpson JA drew attention in Moore included that:
Mr Moore was the sole director and also an employee of KLA;
Mr Moore, on behalf of KLA, signed a “Bricklayers Safety Plan” which specifically confirmed that “we” would make sure that the structure would remain stable and secure from collapse as it was built;
after the wall was built (but several days before it fell), the foreman on the construction site specifically suggested that the wall should be braced and Mr Moore declined, saying, “that will be right”.
The Crown’s allegations against the applicants in respect of the ‘loader duty’ involve analogous facts that involve the applicants engaging in acts or conduct which are alleged to have played a causative role in creating the dangerous situation (ie, the trailer with an unsafe load). So far as the ‘manager duty’ is concerned, no equivalent facts are alleged. The Crown has not alleged that either applicant took a step, or engaged in a course of conduct, which might be regarded as analogous to Mr Moore signing the safety plan. During argument in this Court, the Crown relied upon the following allegation in the “Background” section of the amended Crown case statement:
In 2021, before the incident, [the first applicant] directed [the Operations Manager] to implement policies and procedures around the business’s work practices, including safety and loading procedures. However, the business continued to operate without those procedures in place.
That allegation is not enough on its own to establish that the first applicant owed a duty to all road users who may be at risk from the transport operations of the business. The fact that a person perceived a deficiency and directed that it should be rectified cannot be sufficient to create a duty to road users if that duty was not already owed to that class of person. Furthermore, neither the Crown case statement nor the further particulars provided by the Crown indicated that this fact was relied upon to establish the existence of a duty. To the extent this was a fact said to be relevant to why the duty arose, the Crown case statement should have made this clear.
This is not a case where the Crown has alleged that an accused person gave instructions for a business to embark upon a dangerous activity, or otherwise engaged in any particular acts or conducts, as managers as distinct from loaders, which caused the danger to arise. When pressed during argument, the Crown relied on its particulars of the applicants’ failures to implement appropriate safety procedures or systems. The difficulty with this is that, as is clear from Taktak and Moore, these failures are only relevant after it is shown that the duty to act arose. If the Crown contends that a duty arose from the applicants playing a causative role it must identify the acts or conduct which, if proved beyond reasonable doubt, would establish that the applicants played a causative role.
Furthermore, as is clear from the analysis of Moore above, while playing a causative role may be an important step towards establishing a duty, it will not necessarily suffice. In fairness, the Crown appears to accept this. The Crown’s case includes the other seven matters which were relied upon in its submissions as ‘salient features’ (see [47] above), the first five of which are factual matters analogous to the five matters identified by Bathurst CJ at [121], and the last two of which are additional legal considerations that may inform the presence or absence of a duty of care. In an appropriate case, the existence and scope of a duty might be informed by the matters identified by Bathurst CJ in Moore at [121] (accepted as relevant to one stage of the inquiry or another by Simpson JA at [243] and Bellew J at [259]) and also informed by the two additional matters identified by the Crown (degree of indeterminacy and consistency with statutory context). However, the plurality’s caution in Burns at [107] must be borne in mind, that courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act.
When an analysis by reference to salient features is invoked, it is appropriate to note that the plurality in Mallonland at [36] drew attention to academic and judicial criticism of this approach, although noted there was no contention in that case that the Court should depart from that approach. Justice Edelman went further at [59] and [104], expressing the view that any application of that analysis should be as narrow as possible. Consistent with Bathurst CJ’s view in Moore at [110], such legal reasoning should proceed by analogy to decided cases. By incremental reasoning analogous to Moore, it is possible that a personal duty of care might be owed by an individual in a managerial position in a company to people whose lives are put at risk by a dangerous activity the individual causes the business to engage in, or by a dangerous state of affairs that the individual plays a causative part in creating. Such a situation would be a far cry from the hypothetical Samaritan; such a person may already have an obligation in contract to their corporate employer to take reasonable care for other people’s safety, although as Moore makes clear there will be a separate question whether the individual’s acts and conduct placed them under a personal duty to third parties.
This Court does not exclude the possibility of a duty of care arising in connection with a managerial role, but the facts alleged by the Crown in this case involve neither acts nor conduct by which the applicants played a causative part in the creation of the danger (as regards the ‘manager duty’ as distinct from the ‘loader duty’), nor acts nor conduct by which the applicants personally assumed responsibility for the safety of the dangerous activity (again, putting to one side the ‘loader duty’ which is not in contest in this Court).
As Simpson JA indicated in Moore at [242]-[243], the considerations identified by Bathurst CJ at [121] may also inform the content of any duty. If the Crown alleges that an accused person’s duty of care requires them to take particular steps, such that the accused may be liable for manslaughter for failing to take those steps, then the Crown must allege the facts which the Crown says give rise to a duty having that content. This is necessary to enable the trial judge to perform their function of determining whether, if those facts are proved, a duty of care arose the content of which includes what the Crown alleges. The trial judge can then direct the jury that, if those facts are found, a duty of care with the relevant content arose.
It may be possible to conceive of situations in which managerial decisions might lead to the person(s) making those decisions owing a duty of care to take reasonable steps to protect road users from the risk of death from a particular dangerous business activity – thereby enlivening potential liability for manslaughter by criminal negligence by omission or failure to act. However, it is undesirable (and unfair to the applicants) to speculate further as to what additional facts might be alleged in the circumstances of the present case which might suffice to establish a duty of care.
It follows from the foregoing that the primary judge erred in deciding that the Crown should be permitted to proceed as proposed in relation to the duty alleged to arise out of the applicants’ managerial roles. There is some doubt about whether this Court needs to grant relief in relation to the 23 May 2025 decision as well as the 21 April 2026 decision.
The Crown contends that the 23 May 2025 decision involved an “interlocutory order or judgment” within the meaning of s 5F(3) of the Criminal Appeal Act, because it determined the scope of the case in a way that could not be changed later (or, at least, could not be changed later without engaging s 139(5) of the Criminal Procedure Act). The Crown accordingly contends that the primary judge was correct in April 2026 to ask whether s 139(5) permitted the earlier decision to be revisited, and that in this Court the applicants need leave to reopen the earlier 23 May 2025 decision in relation to count 1.
The applicants resist this on the basis that the primary judge in May 2025 appeared to be dealing with a single alleged duty, arising out the applicants’ conduct in loading the trailer but “informed by” their managerial role. The applicants say the argument in April 2026 related to the Crown case as crystallised in the amended Crown case statement dated 25 March 2026, where two duties were clearly articulated, now labelled the ‘manager duty’ and the ‘loader duty’. The Crown submissions during argument in May 2025 would tend to support this argument, and the 23 May 2025 decision at [71] and [85] is consistent with it.
Ultimately, it is not necessary to decide whether the 23 May 2025 decision was infected by the same error that we have discerned in the 21 April 2026 decision. In the latter decision, the primary judge clearly decided that the Crown should be permitted to proceed on the basis of what has been labelled the ‘manager duty’. To the extent that s 139(5) applied, his Honour’s assessment of whether it was in the interests of justice for his earlier ruling to be binding was affected by his view – which we have held to be erroneous – that the Crown had adequately identified a case that should be permitted to proceed on the basis of a duty of care owed by the applicants by reason of their managerial roles within the business. His Honour received full argument on the issue in April 2026 and delivered the 21 April 2026 decision, in which he made what is accepted to be an interlocutory order that the Crown should be permitted to proceed as the Crown proposed. For the reasons set out herein, this Court has concluded that there is appellable error in this order, and the matter is an appropriate one for a grant of leave to appeal.
It is unnecessary to grant separate relief, so far as count 1 is concerned, in respect of the 23 May 2025 decision. The relief proposed in lieu of the order made on 21 April 2026 – addressed below – suffices to remedy the error regardless of whether the same error can be discerned in the reasons given or decision made in May 2025.
It follows that leave should be granted and the appeal allowed in respect of ground 1. The Crown should not be permitted to proceed as it proposes, as regards the duty alleged to arise by reason of the applicants’ managerial roles.
The primary judge’s decision on 21 April 2026 – which the Crown accepts was an “order” for the purposes of s 5F of the Criminal Appeal Act – should be vacated.
This Court will not grant the consequential declaration sought by the applicants in prayer 4 of the notice of appeal (see [13] above). First, it goes too far. As the foregoing reasons make clear, this Court does not exclude the possibility that an employee may come to owe a duty of care, capable of founding a conviction for manslaughter, by reason of managerial decisions or conduct in a managerial capacity. The Crown has not alleged sufficient facts to warrant such a conclusion. These reasons articulate what this Court has concluded, and what this Court has insufficient facts to conclude. Further declaratory relief is unnecessary. Given that there are good reasons not to grant the declaratory relief, it is not necessary to consider further whether such relief falls within the scope of this Court’s power in s 5F(5).
While declaratory relief will not be granted, it is appropriate to make an order instead of the order which is to be vacated. The order is that:
In respect of count 1 against the first applicant, the Crown is not permitted to proceed on the basis that the facts alleged in the amended Crown case statement dated 25 March 2026 will, if proved, establish the duty alleged in the first bullet point under “Duty of Care” on page 2 of that document.
In respect of count 1 against the second applicant, the Crown is not permitted to proceed on the basis that the facts alleged in the amended Crown case statement dated 25 March 2026 will, if proved, establish the duty alleged in the first bullet point under “Duty of Care” on page 3 of that document.
It is not appropriate for this Court to express a view – which would be necessarily speculative – about whether the Crown should be permitted to advance any alternative or replacement duty of care. It is not known whether the Crown will seek to advance a duty of care based on different or additional facts. Whether the Crown should be permitted to advance another duty case will be a matter for the trial judge, taking into account all relevant circumstances including the history of this matter, the significance of the ‘manager duty’ given the applicants’ concession in relation to the ‘loader duty’, the imminence of any hearing date and the potential impact of delay.
The trial judge erred in finding that on Count 3 the Crown need prove only that each applicant knew the configuration of the load and the restraints, rather than actual knowledge of the inadequacy of the restraints.
The Crown made a concession in this Court which means that there is no dispute between the parties about the principal legal question raised by ground 2. The Crown concedes that it is not sufficient, for count 3, to prove that each applicant knew the configuration of the loads and the restraints. The Crown accepts that it must prove that the applicants also knew that the load restraints were poorly applied such that there was a risk (which the Crown accepted during argument must be a “real risk”) that the load constraint could fail. The Crown accepts that this follows from the High Court’s decision in Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024) 281 CLR 338; [2024] HCA 27 at [76] (Gageler CJ and Jagot J); [149] (Gordon J, Steward J agreeing at [308]), [202]-[203], [268] (Edelman J) and [354] (Beech-Jones J, Gleeson J agreeing at [311]), a decision which neither party drew to the primary judge’s attention.
There is, however, a dispute about the disposition of the matter in this Court. To deal with that dispute, it is necessary to understand the position taken by the Crown below and the primary judge’s central reasons.
Prior to the hearing in May 2025, the Crown had contended that, to prove the knowledge element for count 3, it was sufficient to prove that the applicants knew the manner in which the load was restrained.
In its written submissions on 18 May 2025, while the Crown accepted it needed to prove that the manner in which the load was secured was in fact inadequate because it carried the risk of failure, the Crown contended that it did not need to prove that the applicants had a subjective belief about the “‘inadequacy’ or ‘dangerousness’” of the load. In the alternative, the Crown contended that it was sufficient for the Crown to prove that the applicants knew that the load restraint was “inadequate” in the sense that they knew that the load restraints were poorly applied so that “there was a risk that the load restraint would fail”.
The primary judge at [88], in refusing the relief sought by the applicants in respect of count 3, accepted the Crown’s primary position [AB 120]:
What the Crown must prove is that the accused knew of the configuration of the load and the restraints deployed, but it need not prove that the accused knew that by reason of the nature and content of the load, the apparatus deployed, and the means used to secure the load that it was such as to pose the risk [of] harm it alleges. The Crown must prove as a fact that there was such a risk regardless of whether the accused appreciated it.
The primary judge accordingly refused to quash the indictment or grant a permanent stay in relation to count 3.
It is common ground in this Court this his Honour’s acceptance of the Crown’s primary position was erroneous. However, because the Crown advanced an alternative case which the applicants accept is available (ie, proving the stricter knowledge element), it is also common ground that his Honour was correct to refuse to quash the indictment or grant a permanent stay in relation to count 3.
In light of the Crown’s concession, there is no utility in granting leave to appeal in respect of ground 2. The Crown could not now properly seek to advance a case that, to prove the knowledge element for count 3, it need prove only that each applicant knew the configuration of the loads and the restraints. To be clear, the position taken in this Court was to acknowledge that the ‘primary case’ on knowledge advanced before (and accepted by) Judge Bennett was deficient.
While this means that the primary judge’s reasons below at [88] are agreed to be erroneous, it is well established that the appeal lies from the judgment or order, not the reasons. The judgment or order was to refuse the applications to quash the indictment or grant a permanent stay. The applicants raised a concern that if the “ruling” in the reasons below at [88] is not vacated or set aside, then the primary judge would regard it as binding by operation of s 139(5) of the Criminal Procedure Act unless the primary judge reached the opinion identified in that subsection.
There are two answers to this concern. First, there is no real prospect of this issue arising, given the Crown’s concession in this Court and its indication that it will not be advancing a case that would depend on the “ruling” in the reasons below at [88]. Second, if there were any suggestion below that a “ruling” in the reasons below at [88] might be binding, the Crown’s concession in this Court would prima facie provide a compelling basis for the judge to form the opinion that it is not in the interests of justice for the ruling to be binding.
In circumstances where the Crown has confirmed that it will not advance a case based on the lesser knowledge requirement – and has accepted in writing in this Court that such a case is not available at law – appellate intervention of this Court is not warranted. If a trial judge makes a decision in criminal proceedings (regardless of whether it is an order or a ruling) that a particular prosecution case can proceed, but the Crown on mature consideration confirms that it will not pursue that case, it is neither necessary nor appropriate to take up this Court’s resources to have the trial judge’s decision vacated.
That being the case, leave to appeal on ground 2 should be refused. It is unnecessary to deal with the other hurdle which the applicants faced on this ground, being that they sought to appeal from what they described as a ruling and which was not clearly shown to be an “interlocutory judgment or order” for the purposes of s 5F(3) (cf R v F (2002) 129 A Crim R 126; [2002] NSWCA 125 at [10]-[11]; AF v R [2015] NSWCCA 35 at [31]; Turnbull v R [2016] NSWCCA 109 at [30]-[35]).
In respect of appeal ground 1 (count 1), leave to appeal should be granted and the appeal allowed. The 21 April 2026 decision should be vacated and, in lieu thereof, this Court should make the orders set out at [98] above.
In respect of appeal ground 2 (count 3), leave to appeal should be refused.
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Paragraph [63] - "d J's" changed to "Yeldham J's" in the last sentence. Paragraph [91] - "April 2021" changed to "April 2026" in the last sentence.
[2026] NSWDC 107
(2004) 217 CLR 424
(2012) 246 CLR 334
(2009) 75 NSWLR 649
(2024) 98 ALJR 956
(2011) 242 CLR 446
(2012) 247 CLR 531
(2015) 91 NSWLR 276
(1988) 14 NSWLR 226
(2024) 281 CLR 338
(2014) 254 CLR 185
(1999) 198 CLR 180
(1984) 154 CLR 672