What's New in Employer Liability

Torts – Negligence – Duty of care – Independent subcontractor suffered injury resulting from negligent conduct of co-subcontractor – Whether induction training in industry approved code of practice would have avoided cause of injury – Whether obligations imposed on principal contractor and contractor under the Occupational Health and Safety Act 2000 (NSW) and the Occupational Health and Safety Regulation 2001 (NSW) give rise to a common law duty requiring for its discharge the provision of occupational health and safety induction training in respect of safe work methods of carrying out specialised tasks – appeal allowed

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NOTE: High Court observed that Courts needed to exercise caution in translating the obligations imposed on employers, principal contractors and others under health and safety legislation into a duty of care at common law - reference to a document prepared by theWorkCover Authority of New South Wales titled "Code of Practice: Occupational Health and Safety Induction Training for Construction Work" ("the Code of Practice") as in force on the date of the commencement of the Regulation.

Psychological injury; evidence; causation; relevance of obsessional personality; whether employment a substantial contributing factor to injury; section 11A of the Workers Compensation Act 1987; refusal of application for adjournment; procedural fairness; application to rely on oral evidence on review - Dr Fairleigh issued a WorkCover certificate stating that Mr Gentle was “suffering from a major depressive illness resulting from workplace stressors” and that employment was a substantial contributing factor to this injury;
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TORTS – negligence –statutory duty – Factories and Shops Act 1960 (Qld) s38 (1) – Asbestos Rule 1971 – construction of width of statutory duty – width of duty established in enabling act – rule not extend to protection of non workers in domestic environment - statutory duty did not extend to those in the position of plaintiff – no private right to those outside the statutory duty of care

TORTS – negligence – duty of care – independent subcontractor – duty of care of principal to third party– asbestos - domestic exposure – liability of principal where third party brings home contaminated work clothes into domestic environment – duty of care to third party in carrying on of hazardous activities or handling toxic materials– no self contained test – failure to apply multifactorial approach – failure to address all relevant factual issues – knowledge of principal – steps taken by contractor – toxicity and hazard of asbestos – degree of control of principal – degree of direction and control of subcontractor

 

TORTS – negligence – rescuer- psychiatric injury – whether the defendant owed a rescuer a common law duty of care

TORTS – negligence – psychiatric injury – interpretation of the Civil Liability Act 2002, Pt 3 – whether a rescuer is entitled to damages pursuant to the Civil Liability Act 2002, Pt 3 – meaning of the phrase “the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril”

 

APPEAL AND NEW TRIAL – appeal – excessive damages – cost of future treatment and non-economic loss – review of conclusion as to plaintiff’s psychological condition – whether findings of fact unsupported by evidence – whether primary judge applied personal opinion as to potential for recovery

JUDGES AND COURTS – judicial obligation to make findings of fact on proved evidence

EVIDENCE – medical evidence – assessment of psychological condition of witness – assessment based on inadequate evidence

DAMAGES – measure of damages in actions for tort – personal injuries – future economic loss – considerations for the assessment of future loss of earning capacity in the case of a minor – whether buffer should be awarded

 

Common Law - Practice and Procedure - whether a declaration that any assessment of damages for loss of earning capacity as defined in s 151G of the Workers Compensation Act 1987 includes an award for damages representing the costs of funds management should be made in interlocutory proceedings - advisory opinion – mediation - overriding purpose - applications for discrete consideration of issues properly matters for the trial judge in interlocutory proceedings to be discouraged.

CIVIL LAW – APPLICATION – Where first defendant seeks judgement against the first, third and fourth defendants pursuant to r 293 of the Uniform Civil Procedure Rules 1999 – whether statement of claim of defendants discloses cause of action – where plaintiff seeks an order that the trials of action 550/08 and 212/08 be heard together – whether third parties owed a duty to the plaintiff – injuries – employment

 

Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial commission - Commission declined to act upon the evidence of Dr Murrell on the ground that Dr Murrell had become too close to the Appellant, who was her patient and had become his advocate - no incontrovertible facts to demonstrate that the Commission’s finding was erroneous

 

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – REASONABLE STEPS TAKEN TO ASCERTAIN FACTS - whether applicant should have taken action earlier to establish material facts - whether it was reasonable for the applicant not to pursue inquiries about a potential claim relating to his treatment at a hospital due to his ill-health and while experiencing legal and financial difficulties at the time - counsel for the respondent submits that the discretions in rr 7 and 905(2) are not available, unless an application is made before the time for fulfilment of the condition has expired. It relies for support of that submission on Graham v WorkCover Queensland - reading of this case does not support the submission.

 

The ACTU launches new advertisements for its cause against the nationalised OHS laws. The ACTU claims the changes would prevent workers in NSW and the ACT from taking court action against an employer for breaches of health and safety laws. The proposed new laws also remove the onus on employers to prove they provided a safe workplace (16 September 2009)

 

A former James Hardie company, Amaca Pty Ltd, is launching legal action against the Ipswich City Council in Queensland's District Court, claiming the council was negligent in the 1970s in failing to protect former employee against asbestos-based building materials allegedly made by James Hardie (16 September 2009)

The death of a man crushed by glass in an industrial accident highlights the dangers of working alone; the construction union says (10 September 2009)

The case of a woman who contracted mesothelioma after washing her husband's asbestos-riddled work clothes for 27 years threatens to set off another wave of compensation claims against the occupiers of sites that handled the deadly fibres. Justice James Allsop said Ampol (Qld) had an obligation to understand the medical and OH & S consideration of asbestos, including the risk posed to members of a contaminated worker's domestic household" (11 September 2009)

Workplace injuries are a serious factor that every business, manager and staff member must think about. Direct costs include medical expenses, legal costs, and the cost of finding a replacement. Indirect costs include lost output due to reduced productivity, reduced staff morale, as well as the administration of workers' compensation claims (10 September 2009)

 

On 7 September 2009 the Senate passed without amendments the Safe Work Australia Bill 2008 [No. 2]. Safe Work Australia will now be established as an independent statutory agency with primary responsibility to improve occupational health and safety and workers’ compensation arrangements across Australia

A Police officer who worked at the Southport watch house is claiming $470,000 in damages for physical and psychological injuries after being attacked twice by prisoners in the cells. He claims the QPS failed to provide him with a safe workplace, training or counselling (04 September 2009)

The total of workplace injury costs in the Australian construction industry borne by employees, employers and the community equals 98 per cent of the industry's operating profit (09 September 2009)

 

Victim support groups warn of the ''devastating effects'' workplace death has on the community amid continuing union pressure against the Labor governments' reform of workplace safety laws. Under NSW law, a company must prove that it did not contribute to a death by providing an unsafe workplace. The Federal Government's draft new national safety laws will drop this onus of proof in NSW, and unions will also lose the right to prosecute if WorkCover decides not to (17 September 2009)

 

New OHS laws based on a national Model Act will bring "a race to the bottom" or much-needed clarity for employers, experts will tell The Safety Conference in Sydney. Three issues are set to dominate discussion: the burden of proof, the personal liability of company officers, and the impact on prosecutions (09 September 2009)

A teacher is suing the Queensland education department after allegedly suffering years of bullying from her superior at a special needs school. The law firm for the teacher is preparing a notice of claim against WorkCover as the insurer of Education Queensland for one of the women, while a teacher's aide is assessing whether she is able to make a claim (07 September 2009)

The High Court has ruled that construction firm Leighton Contractors was not subject to a duty of care requiring it to provide training to sub-contractors in the safe methods of carrying out their specialised work. In do so, the High Court has dismissed a negligence claim against Leighton (02 September 2009)

 

Form No FM70.1, Version 3: Application for a Single Employer Self-Insurance License

Form No FM70.2, Version 3: Application for a Group Employer Self-Insurance License

Approved 31 August 2009, and copies available from Q-COMP

 

On 7 September 2009 the Senate passed without amendments the Safe Work Australia Bill 2008 [No. 2]. Safe Work Australia will now be established as an independent statutory agency with primary responsibility to improve occupational health and safety and workers’ compensation arrangements across Australia

 

"The material contained here is no more than general comment. Readers should not act on the basis of the material without taking professional advice relating to their particular circumstances”