Employer's Duty of Care
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 their employment.
NSW also has occupational health and safety laws in place that require employers to take proactive steps to identify foreseeable risks, and to implement necessary measures to prevent injury from occurring in the workplace.
Negligence is the term used to describe a failure to take reasonable duty of care to avoid causing injury or loss to another person. There are generally accepted four steps in proving negligence:
- That there is a duty of care.
- That the defendant breached that duty of care by some behaviour or inaction that did not meet the standard of care which a reasonable person would meet in the circumstances.
- That any damage suffered was caused by that breach of duty.
- That damage suffered by the plaintiff (injury or loss) is foreseeable, and expected injury or loss in the circumstances.
In the case of an employer, there is no doubt that an employer owes an employee a duty of care to ensure his or her safety whilst in the workplace.
The law imposes upon every employer, a duty to take reasonable care for the safety of its employees.
That duty can be described as follows: “by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual unexpected risks and by instructing him in the performance of his work where instructions might reasonably thought to secure him from danger of injury…. The standard of care for employee’s safety is not a low one.”
An employer’s duty of care is a non-delegable duty which means an employer cannot delegate that duty to someone else. An employer is always responsible for the safety of its employees.
An employer has a duty only to take “reasonable care” so as to avoid foreseeable risk of injury. This is not a guarantee of safety. An employer must avoid injury by providing reasonable care in the circumstances. For example, it is not reasonable to require an employer to spend thousands of dollars on safety equipment if the risk of injury without such equipment is relatively low.
A court will ultimately decide having regard to all of the circumstances whether or not an employer has breached their duty of care and does not meet the standard of care which a reasonable person would expect in the circumstances of the injury.
Claim against employers for breach of duty of care are governed by the NSW Workers compensation legislation. They are known as Work Injury Damages claims.
A claim for work injury damages can only be made if you have a whole person impairment of 15%.
You will need your lawyer to have the whole person impairment assessed before you can make a claim.
Find our blog articles on Work Injury Damages HERE.
If you need assistance with your duty of care claims, please do not hesitate to contact us as follows;