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Liability

Employers have a duty of care to provide their workers with a safe place and system of work; reasonable and appropriate work duties; all necessary plant and equipment in a good state of repair; and adequate training and instruction to ensure workers can carry out their duties safely.

In order to succeed in a common law claim against their employer, an injured worker must be able to show there was a breach of the duty of care owed by the employer to the worker, which caused the injury to the worker.

Breach of duty of care

In some situations, it may be readily apparent there has been a breach of the duty of care, such as where a machine is not fitted with a proper guard or a piece of equipment malfunctions. However, a Court may also find an employer has breached their duty of care even though the injury may appear to have been caused by the worker's own carelessness or failure to follow the employer's policies and procedures. In these situations, the breach of duty of care by the employer may arise from a failure to properly instruct the worker in the safe performance of his/her work duties.

In some circumstances, it may be found that even though an employer provided instructions and training to its workers, it then failed to adequately supervise the workers to ensure the work duties were being performed in accordance with the employer's instructions and training.

Even in cases where it seems the injury occurred while the worker was performing routine work duties, it may be found the employer failed to ensure the worker was not placed at a foreseeable risk of injury through heavy and/or repetitive tasks or those involving excessive bending, lifting or working in confined spaces.

In some cases, the worker may have suffered an aggravation of a pre-existing injury or condition (which may include age-related degeneration which has not previously caused any symptoms). Only the work-related component of the pre-existing condition can be compensated.

Although many WorkCover common law claims primarily involve physical injury, some claims are for psychiatric injury alleged to have been caused by issues such as bullying, harassment, unfair treatment or discrimination. However, an employer will not be liable if reasonable management action caused the psychiatric injury.

What happens if the injury happens at another site?

When an employer sends an employee to work with another party or at premises under the control of another party, the employer still has a duty to take reasonable steps to ensure the safety of their worker. If the worker is injured as a result of the negligence of the other party, the employer will usually be held partially responsible.

If the injury is caused as a result of the actions of someone else, could the employer be liable?

An employer is also liable for the acts of its other workers which may have caused the injury to the claimant.

If the worker contributed to their injury, could the employer still be found liable?

Even where there has been a breach of duty of care by the employer, a Court may find that the worker's injury was partly caused by his/her own negligence and may reduce the award of damages by a percentage which reflects the extent of the worker's contributory negligence.

Last updated
14 June 2019

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