COMMON LAW

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COMMON LAW

• What is common Law
• Common Law -v- Statutory claims
• Statutory Claim no fault

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COMMON LAW CLAIMS

• The Process
• Liability
• Threshold issue
• Particulars of Negligence
• Contributory negligence
• Third Party involvement
• Quantum damages that may be paid from any
  breach of the employer duty

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COMMON LAW CLAIMS

• MAIN ISSUES
• Liability
• Contributory Negligence
• Third Party Involvement
• Quantum damages that may be paid from any
  breach of the employer duty

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Basis of Awarding Compensation

• Defendants conduct falls below the standard
  regarded as normal or desirable
• Basis of Liability
• Breach of contract (documentation required)
• Breach of statutory duty
• Negligence

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Breach of Statutory Duty

• Separate civil cause of action may be available
  where a statute gives rise to a private right of
  action
• Workplace Health and Safety Act 1995

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Workplace Health Safety Act

• Duties on employers and others
• Application of the Act
• All Queensland workplaces
• Everyone who may be affected because of
  workplaces
• Obligations
• Employers
• Workers
• Others such as principal contractors

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Obligation of Employers

• Complying with Regulation or
• Complying with Code of Practice or
• Adopt and follow another way that gives the same
  level of protection against the risk
• If no regulation or code of practice exists about
  a risk at the workplace, they must choose an
  appropriate way to manage exposure to the risk,
  take reasonable precautions and exercise due
  care.

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Obligation of Employers

• DIR website advises the five steps of the risk
  management
• process are
• Step 1 Look for the hazards
• Step 2 Decide who might be harmed and how
• Step 3 Decide on control measures
• Step 4 Put controls in place
• Step 5 Review the controls

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Obligation of Employers

• Factual Considerations
• Is there a relevant Regulation or Code of
  Practice?
• Did the employer conduct the five step process?
• How and when did the employer decide on control
  measures and put the measures in place?
• Did the employer weigh up whether they had taken
  enough precautions, or could they have done more?
• Did the employer involve the workers in this
  process?
• Did the employer consider industry practice?
• Did the employer exercise reasonable diligence?
• What timeframe and who was responsible?

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Obligation of Employers

• Did you review the controls or measures?
• Did you
• Remove the harm or prevent the risk
• Replace it with something less harmful
• Separate people from the harm
• Change work processes or the physical work
  environment, for example, by redesigning work,
  plant, equipment, components or premises
• Apply administrative arrangements, for example,
  limit entry or time spent in a hazardous area
• Use personal protective equipment 

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Obligation of Employers

• Did you record the steps they took and do they
• Walk through the workplace and look for hazards
  in a systematic way
• Ask workers about hazards
• Consult with workplace health and safety
  representatives and committees
• Conduct a safety audit
• Review workplace records such as sick leave and
  incident reports
• Acquire information from designers, manufacturers
  and supplier
• Talk to their industry association and suppliers
  of equipment and consumables
• Obtain ergonomic advice from experts
  (Occupational therapists, ergonomists)  

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Obligation of workers

• Workers have a number of obligations under the
  WPHSA
• However common law duty of employer is extremely
  high and the Court will apply relevant precedents
  (discussed further herein)

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Negligence

• 3 elements of negligence
• The existence of a duty of care
• The breach of that duty
• Occurrence of damage as a result of the breach
• Courts impose a very high standard of care on
  employers

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Duty of care

• Existence of duty of care will rarely be in
  dispute
• The dispute will be about the extent of that duty
• The duty is to take reasonable care and to avoid
  exposing the employees to unnecessary risk of
  injuries

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Duty of care continued

• To provide adequate plant and equipment, a safe
  place of work and a safe system of work
• Duty is non delegable

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Duty of Care

• Employer has a duty to warn the employee of the
  risk of injury. They owe a duty to give warnings,
  repeated at regular intervals
• (a) giving sufficient detail about the symptoms
  of carpal tunnel syndrome, or other potential
  injury or condition
• (b) setting out the known causes of the syndrome/
  condition and
• (c) stating that-
• (i) if untreated the syndrome could lead to
  permanent disability
• (ii) it was desirable to consult a doctor as
  soon as the symptoms appeared and
• (iii) early treatment for the syndrome usually
  led to complete recovery.

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Foreseeability

• The risk of injury is foreseeable provided it is
  not far fetched or fanciful
• Employer must take into consideration an
• employees inattention
• For example
• the risk of doing repetitive work

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Preventability

• Is there an alternative system of work?
• Has employer implemented a new system of work
  since the event?
• This issue only offers some limited scope for
  defence

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Reasonableness

• Is the non-adoption of an alternative system of
  work reasonable?
• Look at
• Magnitude of the risk
• Probability of its occurrence
• Along with expense, difficulty and inconvenience

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Breach of Duty System of Work

• Duty to establish, maintain and enforce the
  system
• McLean v Tedman
• Arguments
• Employer - danger was obvious and the practice
  was the workmens choice
• Claimant as the danger was obvious and serious
  in its consequences, there was a duty on the
  employer to take suitable precautions to prevent
  such an accident

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Bartley v Coles Myer - Enforcement

• Claimant was a butcher who cut his left hand
  while boning and slicing. He claimed that
  employer failed to supervise him properly to
  ensure that he used a glove.
• Management tried to enforce the use of a glove
  but the claimant resisted and was wilfully
  disobedient.

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Bartley v Coles Myer - Enforcement

• Employer argued that it could not reasonably have
  done anything more to prevent non-compliance.
• Held employer should have
• Tried persuasion
• Been progressively more insistent in its demands
  of compliance.
• If all else failed it should have threatened
  dismissal and, if necessary, dismissed him.

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Bartley v Coles Myer - Enforcement

• Factual Considerations
• Instructions and directions, including the signs
• When given?
• Who given by?
• Statement from supervisor/s
• Whether other co-workers wore the gloves
• Did the worker or other workers refuse to wear
  them?
• If so, what did management do?
• Did management pursue the avenues suggested by
  the Court in Bartley?

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Obvious Risks/Commonsense at work

• The mantra of obvious risks relates to
  day-to-day activities of people and the
  requirement that they take care to look out for
  themselves and be aware of obvious risks in their
  environment
• Common in public liability sphere
• Limited application to employer employee
  relationships
• Walking up stairs
• Getting into and out of cars/trucks

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Safe Plant and Equipment

• Plant and equipment must be safe
• PPE where necessary
• Latent defects employer may not be liable

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Safety of Premises

• Duty to provide safe premises
• This extends to any site used in connection with
  those premises
• Premises of a third party

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Contributory Negligence

• Need to establish that the claimants conduct
• amounts to a failure to take reasonable care of
• their own safety
• Mere inadvertence is not enough
• Workers Compensation and Rehabilitation Act
• provisions (s. 307)

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Vicarious Liability

• Employer is vicariously liable for the negligent
  act of an employee

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Multi-Party Claims -Third party contributions

• WorkCover can bring another party into the action
• Liability may be shared

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QUANTUM

• General Damages
• Past Economic Loss
• Special Damages past and future
• Future Economic Loss
• Others that follow on from the above are
• Interest
• Superannuation
• WorkCover Refund

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THE PROCESS

• Receive the Notice of Claim
• Factual Investigation assists with determining
  liability
• Disclosure of all information
• Medical investigation assists with determining
  quantum
• Obtain medical records
• Further independent medical examinations
• Permanent Impairment on the
• statutory claim -v- impairment assessed
• for the common law claim

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COMMON LAW CLAIMS

• The Process
• Liability
• Threshold issue
• Particulars of Negligence
• Contributory negligence
• Third Party involvement
• Quantum damages that may be paid from any
  breach of the employer duty

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COMMON LAW

• THE END
• QUESTIONS