All employers owe a duty of care to their workers to not expose them to risks that may affect their health and safety. This duty has been incorporated in the Workplace Health and Safety legislation.
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To be covered by the duty the individual must be considered a worker. The term worker covers employees, contractors, volunteers and work experience students.
The employer’s duty of care extends to anyone who enters into their workplace such as customers or members of the public. Employers do not have the power to delegate this duty to someone else, they can only engage others to assist them.
However, the duty is not so unreasonable as to require the employer to ensure that accidents never happen at the workplace, but it does require them to ensure that workers are safe from risks in the particular circumstances. Some of the factors that an employer should take into account:
- The likelihood of a hazard or risk
- The degree of harm that might result
- Whether the person knew or should have known about the risk involved
- The availability and implementation of ways to eliminate or minimise the risk
- The cost associated with eliminating or minimising the risk
No single factor can determine what is or was at a particular time reasonably practicable to be done to ensure the health and safety of workers. Rather, all factors need to be taken into consideration in order to determine the highest level of possible and reasonable protection is provided.
The cost associated with eliminating or minimising the risk should only be taken into account after all other factors have been considered. Measures would only be considered unreasonable if the costs associated with them are grossly disproportionate to the risk.
In Smith v Ducala Pty Ltd, a worker sustained second degree burns when the steel drum he was cutting with an angle grinder exploded. The Court held the company was liable because it failed to identify the hazards and assess the risks arising from the storage of flammable material in steel drums. The Company also failed to develop a safe system of work for the handling and storage of used fuel drums. It also failed to train or inform their employees of safe handling procedures for the used fuel drums.
It is important to note that an employer’s duty of care is not limited to physical injury, as the duty also extends to employees who suffer reasonably forseeable psychological injury.
Practical steps that a company could take to abide by their duty of care obligations include:
- Provide training to employees on safe work practices
- Regularly inform workers about safety issues
- Have an implemented bullying and harassment policy
- Regularly review procedures
- Provide employees with personal protective equipment
- Take appropriate action where health and safety policies or procedures have been breached (even if no one has been injured)
- Work together with employees to identify any health and safety concerns there might be in workplace.
If you require any further information in regards to the above, contact the team of lawyers at The Quinn Group on (02) 9223 9166 or submit an online enquiry.
