Who is at fault
Every worker has the right to work in a safe environment and every employer has a duty of care to their workers.
An employer’s duty of care goes beyond the main workplace. This means an employer needs to take reasonable steps to ensure safety wherever they've asked their workers to work, whether it's their main workplace or another location.
Employer must provide (in a reasonable and practical sense):
- a safe place to work
- a safe system of work
- reasonable and appropriate work duties
- equipment that's in good working order
- adequate training and instructions.
All of these things help workers work safely. But, if an injury happens at work, how is it decided whether it’s because an employer has breached their duty of care?
To be successful in a common law claim, workers must show that their employer hasn’t provided a safe work environment (breached their duty of care). They must also prove this caused the injury. This is known as 'fault'.
Proving that an employer hasn't provided a safe work environment can be a complex and detailed process. A workers may wish to get some independent legal advice.
Contributory negligence
If a worker is injured in the workplace, an insurer may consider whether they contributed to their injury happening in some way. The legal term for this is called contributory negligence. If proven, this may impact the amount of damages that are paid.
Protection for apologies and expressions of regret
Apologies have a positive role in resolving disputes and providing a mechanism for achieving justice between people with differing perspectives. A sincere apology offered in a timely manner can reduce anger about what happened and begin the process of rebuilding trust.
Apologies and expressions of regret provided to workers following a workplace injury are protected under the Workers’ Compensation and Rehabilitation Act 2003 and excluded from being considered in determining liability for common law damages, where a Notice of Claim for Damages is made on or after 30 October 2019.