The High Court’s recent decision on health and safety liability at common law, which reminds us that individuals have responsibilities for their own health and safety, should pacify employers who are concerned that, in some Australian jurisdictions, occupational health and Safety (OHS) legislation imposes absolute duties on employers
by Kate Gibbs
The High Court’s recent decision on health and safety liability at common law, which reminds us that individuals have responsibilities for their own health and safety, should pacify employers who are concerned that, in some Australian jurisdictions, occupational health and safety (OHS) legislation imposes absolute duties on employers.
The High Court upheld a judgement in favour of an injured delivery driver in Thompson v Woolworths (Qld) Pty Ltd [2005], but ordered that her award of damages be reduced by a third on account of her contributory negligence.
Thompson was aware of the risks of moving the bins at Woolworths that injured her back, the Court found, on top of the fact that she knew she had already injured it. Her award damages were therefore reduced.
The decision continues the Court’s apparent embrace of the notion of personal responsibility, and sends a timely message to OHS regulators, as well as employers, that the duty to take reasonable care has its limits, and that foreseeability and remoteness of risk of injury will also be considered.
As the Australian Chamber of Commerce and Industry (ACCI) pointed out, the High Court has made it clear that individuals also have responsibilities and can contribute to negligence.
The High Court said that the required standard of reasonable behaviour does not imply the elimination of all risks. “In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses.”
The ACCI is now calling on States and Territories where reasonableness and foreseeability have been turned into near absolute liability, to find alternative ways of assessing employer liability.
The ACCI pointed out that employers are concerned that OHS regulation in some States and Territories has been interpreted to impose almost absolute duties on them to rid the workplace of all risks, contrary to these High Court decisions. Employers should now be seeing the light at the end of the negligence tunnel, realising that safety liability will no longer rest solely on them.
Kate Gibbs is the editor of Human Resources ’ sister publication Lawyers Weekly.
