Accidents at work. No employer wants their staff to get injured. Likewise, no employee is wanting to leave work early because they broke a limb. As you may see, this all revolves around the topic of negligence a branch of tort law. Therefore, the short answer is yes an employer usually has a duty of care to their employees. However, there are certain cases where an employee may have a bigger duty than usual. Read on to find out more.

What is a duty of care?

The best way to think of a duty of care is like a legal relationship. There is a doctor/patient relationship. You can also have the teacher/student and in this case employer/employee. The defining aspect is the balance of power and responsibility. A teacher has more power and responsibility for her students than they have over her. However, a duty of care is just one of many steps towards negligence in the Civil Liability Act 2002 (NSW)

Employers Owe A Duty Of Care

Now if we return to employers they have a well established legal duty. Therefore, the next question is how does the duty actually work. This duty is a two-part deal. First, there is who owes who what, in this case employers look after employees. Then the next part is what is the scope. In other words what things should the employer do in order to fulfil their duty? This could mean having WH&S policies in the workplace. They could do date checks on equipment and make sure the work environment is safe.

Example
Sandy operates her business out of an office space. She has 3 employees who work for her there. During the month, Sandy decides to replace the flooring in the officer herself. After she replaces the floor some of the new tiles aren’t stuck properly. Later in the day one of her employee’s steps and the tile slides, breaks and cuts her foot. This is a very specific example, but as you can see the boss has a duty of care to her employees. This duty is to provide a safe working environment. The boss, Sandy is the one who changed the floor. Then due to her negligence, one of her own employees injured themselves. This means they fall inside the scope of duty.

Vicarious Liability

Vicarious liability is when someone is responsible for someone else. As a business, you will have employees, this means you can be liable for their bad actions. Furthermore, a key case Hollis v Vabu demonstrates this. In the case, a bicycle courier while delivering managed to hit a pedestrian. The pedestrian then sued the employer of the courier as vicariously liable. Two important features stand out here. Firstly the employer believed the courier just to be a contractor, not even an employee. Then the court decided that the courier was an employee thus making the business liable for the courier’s negligence. This means as an employer you should be aware of your obligations to potential employees and contractors. If you’re still unsure you can check with a tort lawyer.

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Justin Pasqualino

Justin is a legal intern at LawPath as part of the content team. He is currently studying a Bachelor of Laws and a Bachelor of Economics at UTS.