An employer’s common law duty of care to employees to protect them from injury is conveniently summarised in Morris v Evolution Traffic Control Pty Ltd & Anor [2023] QDC 195:
- non-delegable;
- to avoid exposing them to unnecessary risk of foreseeable injury;
- not to safeguard employees completely from all perils;
- to take reasonable steps to provide a safe place of work;
- to take reasonabel steps to provide a safe system of work;
- to establish, maintain and enforce the system of work;
- to undertake appropriate risk assessments;
- to devise a proper method of work, train in its use, give instructions on its use and method and take reasonable steps to ensure its implementation; and
- to giving instructions and supervise enforcement of the system of work, including to experienced workers because they may inadvertently or negligently injured themselves.
If a breach of duty is established at common law, it is still necessary to consider whether they breach is recognised under s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’) as the risk must have been:
- foreseeable;
- not insignificant; and
- one where in the circumstances a reasonable person in the position of the defendant would have taken the precautions.
Section 305C of the WCRA also sets out principles for the Court to consider in deciding whether an employer will be liable for personal injury of an employee due to a breach of the employer’s duty of care. However, ss 305B and 305C of the WCRA are unlikley to produce a different result on the issue of liability, compared to the common law.
An employee will not be contributory negligent where they:
- were not disobedient or reckless to instructions;
- were not acting outside the course of their employment;
- had no reasonable knowledge of the risk; and
- have been only inadvertent or inattentive, taking into consideration any distractions.
In considering whether a non-employer defendant will be liable for injury suffered by the employee of an employer defendant, consider:
- Who created the risk?
- Who had knowledge or ought to have had knowledge of the risk?
- How well understood was the risk to the employer versus the non-employer defendant?
- Did the non-employer defendant know that the employer defendant did not have, or was not using, a reasonable system for controlling the risk?
- Who had the power to control or stop the risk?