What duty of care do Australian employers owe employees?
Published in: January 2017
According to figures released by the Australian Bureau of Statistics, in the year up to June 2010, 640,700 Australian employees suffered some sort of work-related injury or illness, or to put it another way, 5.3% of Australian workers experienced an injury or illness that was a result of their professional duties. Obviously there are some jobs that are inherently more hazardous than others, however, all employers owe their employees a duty to take reasonable care to protect them against any foreseeable injury that may arise during the course of employment. All jurisdictions have occupational health and safety (OHS) laws in place that requires employers to take proactive steps in identifying foreseeable risks, and to implement the necessary measures to prevent injury or illness from occurring in the workplace.
Duty of care is implied
Due to the fact that the duty to take reasonable care is implied in a contract of employment, the fundamental obligation owed by employers towards employees is to ensure his or her safety. Failure to fulfil the obligation, may be considered as a breach of contract, and may give rise to an action for damages due to negligence in the common law. The High Court in O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 229 imposes upon every employer, a duty to take reasonable care for the safety for employees:
“[B]y providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to secure him from danger of injury...The standard of care for an employee’s safety is not a low one.”
An employer’s duty of care is non-delegable, and the obligation resulting from the contract of employment is also personal in nature.
What does ‘reasonable care’ mean?
The duty of an employer to take ‘reasonable care’ to avoid foreseeable risk or injury is an important test, and it is usually enough if the circumstances were as such, that injury to an employee was a possibility which would have occurred to a reasonable employer. Additionally, the duty to take reasonable care also extends to harm that may occur due to inattention or misjudgment by an employee carrying out their work duties, as was held by the High Court in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872.
The duty of reasonable care is not a guarantee of safety
It is important to note, that the standard of reasonable care is not the same as a guarantee of safety for employees. In Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, Gummow and Calinan JJ emphasised the need for employees to take personal responsibility, and observed that “...too ready a judicial inclination to absolve people in the workplace from the duty that they have to look out for their own safety which will often depend more, or as much, upon their own prudence and compliance with directions as upon any measures that a careful employer may introduce and seek to maintain.”
Contact Eddy Neumann Lawyers on (02) 9264 9933 or