Who is owed a duty of care?

*Contents of this blog relate to Queensland legislation.

Employers must provide a reasonable standard of care in relation to any acts that could reasonably foresee harm occurring to an employee.

This duty of care relationship extends beyond that of an employer ensuring that a worksite is in a safe condition for workers. Where an employee suffers injury as a result of the employers negligence, that injured person is entitled to compensation as a result of the injuries suffered. In most cases it is easy to establish the existence of the duty of care owed. However in some situations it is not as simple to decipher whether or not that duty existed in the circumstances.

The duty of care owed does not solely relate to employees in relation to being provided with a safe physical working environment. For example, in terms of employers providing safe and orderly equipment to use, or by providing a safe work setting free from hazards. This duty of care also extends to providing a safe working environment for employees free from causing any psychological harm to an employee. This duty owed can be somewhat more complicated in establishing whether or not that duty of care was breached.

Some common examples of psychiatric claims commenced as a result of an employer breaching its duty of care include:

• Bullying and harassment claims;
• Assault in the workplace, causing anxiety;
• PTSD or other conditions caused directly by a traumatic incident.

The duty of care owed in a workplace cannot be delegated. The employer will be directly liable for causing a psychiatric injury to an employee through the liability that attributes to the cause by way of the actions that are those of the company, or its employees. For example, the employer will be directly liable for a worker suffering a psychiatric injury as a result of continued bullying to that person by a fellow employee.

To commence a compensation claim for a worker who sustained a workplace psychiatric injury we need to prove whether a breach of duty has occurred. To do this we firstly need to look separately at breach and causation, and how the court assesses whether or not a duty of care was owed.

Breach

The court has argued in several cases that an employer does not owe an employee a duty of care unless the risk was foreseeable, the risk was not insignificant, and whether in the circumstances a reasonable person in the position of the employer would have taken precautions.

In deciding whether a reasonable employer would have taken precautions against a risk of harm, the court considers:

• The probability that the harm would have occurred even if care had been taken;
• The likely seriousness of the harm;
• The burden of taking precautions to avoid the risk of harm.

If the above factors can be established, for example if the employer knew about the situation that led to the psychiatric injury, and failed to take any action to prevent or implement actions to cease that situation from continuing, it can be proven that the employer breached their duty of care to that employee.

To determine whether an employer has breached of the duty of care owed, the court must always judge the employer’s conduct in light of what was known to them at the time, and without having the benefit of hindsight.

Causation

To determine whether a breach of duty occurred causing injury the following elements need to be determined in regards to causation:

• that the breach of duty was a necessary condition to the occurrence of the injury;
• it is appropriate for the scope of the liability of the person in breach to extend to the injury caused.

It needs to be determined whether any reasonable precautions taken would have prevented an injury. The duty of care owed here means that an employer has a legal obligation to avoid causing their employees harm, however such duty owed only extends to harm that is reasonably foreseeable. This means that for an employer to be held responsible for a worker’s psychiatric injury, the employer needed to be warned of the probability of the harm.

We must keep in mind that recent courts have determined that there are significant limitations on the duty of care that should be offered by employers. It was determined in the case of Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44 that it is general knowledge that some workplaces can be stressful. Here it was determined that the law does not impose an overarching duty to all employers to recognise that workers are at risk of suffering from a psychiatric injury as a result of stress in the workplace. This case demonstrates to us that the duty of care cannot be breached, unless a worker has brought to the attention of the employer their associated employment stress or condition. This then puts the employer on notice of the risk, which then becomes reasonably foreseeable to the employer as to possibility of the injury.

For a compensation claim to be successful it needs to be argued that the employer failed to consider the warning signs that the worker stated to them. The question that must be asked is: was it reasonable to require an employer to take action in the circumstance to prevent the psychiatric injury from occurring?

There are of course other recognised relationships where a duty of care is owed. These consist of road user to road user, hospital to patient and school to student. If it can be proven that negligence has occurred within these relationships a claim for compensation can also be investigated. Examples of these negligence claims include:

• A road user has failed to stop at a red traffic light, and has collided with their car causing injury;
• A student’s school has failed to adequately supervise a child and that child was injured as a result;
• A doctor performed surgery and negligently caused injury to that patient.

Summary

Employees must know that the extent of the duty of care owed, and the steps that need to be implemented by employers does differ based on the type of work being undertaken. The question that must be asked in relation to whether an injured person who suffers a psychiatric injury is entitled to compensation is: was the duty of care provided by the employer reasonable, and did the employer need to take action in the circumstances to prevent the psychiatric injury from occurring.

In the circumstances however all employers must ensure that they provide a safe system of work for employees, taking all steps necessary to reduce or completely avoid the foreseeable risk of both physical and mental harm. Talk to on our experienced lawyers today, 13 43 63.