Understanding Common Law for Workplace Injury: Employer's Duties and Employees' Rights
We here at Younsel have briefly covered some aspects of the statutory approach regarding workplace occupational health and safety (OHS) laws; however, we have not touched upon how the common law deals with an employee who has suffered from a work-related disease or injury, but before we further explore the broad common law approach, allow us to take a moment to state that this piece is only a very general overview of some aspects of the common law in relation to workplace injury, and if you do need help regarding a workplace issue, always seek the assistance of a lawyer who will be able to help you with understanding your position relating to your specific matter.
What duties does an employer owe an employee?
If an employee chooses to bring an action against an employer for negligence, there are a number of things that the employee must prove that include some of the following:
- that the employer owed the employee a duty of care;
- that the act or omission by the employer breached the standard of care required to discharge that duty to the employee;
- that the breach caused the disease or injury of the employee, taking into account that on the balance of probabilities, the employer’s act or omission materially contributed to the harm suffered by the employee;
- that the injury or disease was not too remote in that the injury or disease was reasonably foreseeable as a consequence of the negligent act or omission by the employer.
If an applicant employee proves the aforementioned elements, the court may issue the employee a monetary award for economic and non-economic loss, which may as close as possible, put the employee in the same position as they would have been if they had not suffered the injury or disease.
Do the statutory provisions affect the common law?
All jurisdictions in Australia have legislation that alters the scope of common law actions for damages in relation to injuries suffered, and for negligence at work. However, we should point out that the laws differ between the States and Territories regarding injuries suffered at work, and furthermore, some of the laws codify a number of the principles of negligence found under the common law (eg causation), while other provisions appear to modify some aspects of the common law (eg whether a person’s intoxication or illegality is to be considered in conjunction with contributory negligence) in some of the statutory instruments.
This piece is only a broad overview regarding the topic of workplace injury and should not be considered as legal advice. If you do have a workplace issue that needs dealing with, please seek the help of a legal practitioner who will be able to assist with your matter.
