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Background on the Case

Question:

Discuss about the Risk and Due Diligence Employment.

Castro was a worker working on a site for approximately two weeks. He was not the member of the team working in the site and was engaged in moving very heavy oxygen cylinders (about 146 lbs) needed on the sites. These very heavy oxygen cylinders needed to be carried from a place, which was 20-30 yards away from the site. The nature of the site did not permit the use of trolleys to help the workers carry these heavy oxygen cylinders. One fine day, when Castro was carrying the heavy oxygen cylinder he injured his back causing him permanent disability. This happened as he slipped and fell while carrying the said heavy oxygen cylinder, Castro was carrying the said oxygen cylinder across his arms, which were held in front of his body when he slipped and fell on his back and the oxygen fell with him to the other side of his body. The incident caused damages to Castro, which was permanent in nature.  Therefore, the issue in the said case is to determine whether employer in the said case will be accused of negligence in providing a “safe place system of work” to his employees. The negligence of the said employer can be proved under the Work Health and Safety Act 2011 in Australia and also under the tort law of negligence.

The Australian parliament gives powers to each state to pass its independent state Acts. Therefore, the every state in Australia has its own different set of employment laws. In the said case, we have used the Work Health and Safety Act 2011 and Regulations, which are applicable in New South Wales State of Australia. The employment laws in Australia are very strict and protect the well-being of every employees working in Australia (Australia 2011). The employment laws in Australia also keep a check on every employer engaging employees in Australia to provide the employees with safe and health working conditions. The employment laws make certain parameters, which every employer needs to comply with in Australia, relating to safety and health of the employees they engage or hire. In Australia, there are three major regulations, which govern the workplace safety, and health regulations, which every employer needs to comply with to maintain a good, safe and healthy working environment for his employees. These legislations are Work Health and Safety Act 2011, Work Health and Safety Regulations 2011 and Safe Work Australia Act 2008 (Althaus,  Bridgman and Davis 2012).

The meaning of the term “worker” as defined under the Work Health and Safety Act 2011 is an individual who carries out work in any capacity for an individual who is conducting a business and includes within its scope works like employer, subcontractor, employee of a subcontractor, a trainee, student working to gain work experience and a volunteer (Deakin, Johnston and Markesinis 2012).

The Work Health and Safety Act 2011 make provisions, which make it a duty of every employer to maintain certain required standards of health and safety measures for the employees working for their undertaking or business. The basic duty which every employee is obliged towards is appropriate management of risk. Section 17 of the Work Health and Safety Act 2011 states that a duty is imposed on every individual who acts as an employer to eliminate the risk of health and safety as far as it is reasonably practical to do so. In case where it is not possible to eliminate risk to the health and safety of employer, it is the duty of every individual hiring such employees to minimize those risks as far as reasonably practical to do so (Dympna Glendenning 2012).

Employment Laws in Australia

The next section of the Work Health and Safety Act 2011 defines what is reasonably practically as this term can be very misleading and interpreted according to ones comforts. Therefore, section 18 defines what is the standard requirement for ensuring health and safety in a reasonably practical manner according to the Work Health and Safety Act 2011 (Braun,  Skene and Merry 2010).  Reasonably Practical in relation to ensuring health and safety means a thing, which was practically possible to be done at the time the potential risk or hazard, appeared to occur and the availability of methods to reduce the said risk as conducted or employed by the employer (Symeonides 2011).


The Work Health and Safety Act 2011 make it the primary duty of the employer or an individual who engages workers to ensure the health and safety of his workers while the workers are at work for his business or understanding. This means that the employer has no responsibility of any health risk or safety risk, which the employers may face when the same are not connected or attributed to the workplace of the employer. Therefore, a working working in a textile mill is diagnosed with asthma which is not a result of his work place will not make the employer liable under the said Act (Quinlan2012).

In a recent case, an organisation and officers in Australia where charged for violation of health and safety provisions under Work Health and Safety Act 2011.In Mckie v Al-Hasani and Kenoss Contractors Pty Ltd (in liq) [2015] ACTIC 1 (23 June 2015), on March 2012, Kenoss Contractors Pty Ltd was conducting some work in a tunnel site in Australia. A truck driver was electrocuted by tripping from his truck to unload gravel at the dumping ground of the site (Bloom 2010). This happened as the truck driver touched a power line in the tunnel. Thus, the organisation and its management was charged of violating the provisions of Work Health and Safety Act 2011 (Crivelli, Furceri and Toujas-Bernate 2012). The judgement in the said case was against the organisation, which was liable to pay the penalties under the section 32 of the Work Health and Safety Act 2011.

Thus, the above-mentioned case law in Australia makes it clear that it is mandatory for all employers in Australia to ensure that they maintain a reasonably practical preventive measure to eliminate or minimise any potential risks, which affect the health and safety of the employees who are working for the employers. This risk requires preventive safeguards from the employer only while the employee is working and no after-work hour health and safety requirements are necessary (Parker Harris, Owen and Gould 2012). However, if an injury or harm is attributed due to the effect of workplace, the employer will be liable under Work Health and Safety Act 2011 (Squelch and Guthrie 2010).

The Work Health and Safety Act 2011 make provisions for various penalties when the employers fail to ensure health and safety of their workers and employees. The penalties under the said Act are stated in Division 5 of the Work Health and Safety Act 2011. The penalties are described by classifying the same into different categories. There are three categories, which give the limit of the compensation, which the employer is required to bear in case he breaches the provisions of the Work Health and Safety Act 2011 depending upon the seriousness of damage, which is caused to the employee or the worker. The negligent of an employer under the said Act also attracts the violation of tort law of negligence. Thus, an employer who has failed to ensure health and safety safeguards for his employers also can be charged against negligence under the tort laws in Australia (Coumarelos et al. 2012).

Duty of Employer to Maintain Health and Safety Measures


Negligence is a part of tort law, which is referred as a failure by a person to exercise his duty of care towards an individual to whom the said person owed that breached duty of care. The essence of proving negligence is that injury and damage should result from the beach of duty of an individual (Carty 2010). Classic example of negligence is when a person is walking on the street and is injured by a plant pot falling from the window of someone’s house. In this case, the person walking is the plaintiff and the person owning the plant pot is the defendant. In this case, the defendant is liable to compensate the plaintiff for his injury.

For proving negligence, the plaintiff has to establish the presence of the following elements:-

  • Duty- The defendant owed a duty of care to the plaintiff
  • Breach – The defendant failed to exercise the said duty of care towards plaintiff (Chung et al. 2010).
  • Injury – The plaintiff needs to establish that the defendant’s breach of duty of care caused harm or injury to the plaintiff
  • Cause – The plaintiff needs to establish that the harm was a direct result of defendant’s breach of duty of care
  • Damages – The plaintiff is entitled to be awarded compensation or damages for the injury or harm caused due to the said breach of duty.

Thus, in the said case, if an employer fails to ensure the health and safety measures for his employees, he is liable under tort law of negligence as the employer owed a duty of care towards his employees which if a employee is injured die to any negligence on the part of the employer will attract negligence charges (Steele 2010).

In the given case, it is first important to establish that Castro was the worker under the definition of worker mentioned in the Work Health and Safety Act 2011. As Castro was not a member of the team working in the said site, he is still considered as the worker or the employer of the employer who was conducting the site work. This is because the definition of worked under the Work Health and Safety Act 2011 clearly states that volunteer are considered workers too under the Work Health and Safety Act 2011.


In the present case, Castro suffered from a back injury, which caused him permanent disability, as he was the sole person carrying heavy oxygen cylinder (about 146 lbs) all by himself, which was needed on the site. As this, oxygen cylinder was being carried from 20-30 yards away from the site, where the nature of the site did not allow trolley to be used to carry these heavy oxygen cylinders, it was the duty of the employer to keep the heavy oxygen cylinders close to the site where they were needed. Under the Work Health and Safety Act 2011, it is the primary duty of every employer to ensure health and safety of his employees and workers. This is to be achieved by maintaining appropriate management of risk. This risk is to be managed by ensuring that the risk of health and safety are eliminated as far as it is reasonably practical to do so. In case where it is not possible to eliminate risk to the health and safety of employer, it is the duty of every individual hiring such employees to minimize those risks as far as reasonably practical to do so. Thus, in the said case, it was the duty of the employer to keep the heavy oxygen cylinders close to the working site where they were required or appoint a set of employees which can carry the said heavy oxygen cylinders assisting one and other and together. Thus, the employer in the said case surely breached the provisions of the Work Health and Safety Act 2011 and has to bear the penalty according to the category 2 of the penalties mentioned in the Work Health and Safety Act 2011 for causing permanent disability to its employees by his reckless conduct.

The said employer can also be charged for negligence under tort law. As every employer has a duty of care towards his employees, failing to exercise the same, which caused injury to the employee, attracts the principles of negligence under tort law. Thus, as the employer in the said case can be accused of negligence under tort law and will be liable to pay compensation to his worker for injury that caused permanent disability

Conclusion

In the said case, the employer of Castro will compensate Castro for his injury, which resulted into permanent disability. His employer has violated the sections of Work Health and Safety Act 2011, which required him to ensure health and safety for his employers at reasonably practically level. Therefore, the employer has been negligent and will bear the penalties as mentioned under Work Health and Safety Act 2011. The employer can also be liable under tort law of negligence to compensate Castro for his injury.

Reference List

Althaus, C., Bridgman, P. and Davis, G., 2012. The Australian policy handbook. Allen & Unwin.

Australia, S.W., 2011. National Work Health and Safety Strategy 2012-2022.Canberra, ACT: Commonwealth of Australia. Retrieved from.

Bloom, A., 2010. To Be Real: Sexual Identity Politics in Tort Litigation. North Carolina Law Review, 88.

Braun, A., Skene, L. and Merry, A., 2010. Informed consent for anaesthesia in Australia and New Zealand. Anaesthesia and intensive care, 38(5).

Carty, H., 2010. An analysis of the economic torts. Oxford University Press, USA.

Chung, J., Farrar, J., Puri, P. and Thorne, L., 2010. Auditor liability to third parties after Sarbanes-Oxley: An international comparison of regulatory and legal reforms. Journal of International Accounting, Auditing and Taxation,19(1), pp.66-78.

Coumarelos, C., Macourt, D., People, J., McDonald, H.M., Wei, Z., Iriana, R. and Ramsey, S., 2012. Legal Australia-wide survey: Legal need in Australia(Vol. 8). Law and Justice Foundation.

Crivelli, E., Furceri, D. and Toujas-Bernate, J., 2012. Can policies affect employment intensity of growth? A cross-country analysis.

Deakin, S., Johnston, A. and Markesinis, B., 2012. Markesinis and Deakin's tort law. Oxford University Press.

Dympna Glendenning, 2012. Education and the Law. A&C Black.

Parker Harris, S., Owen, R. and Gould, R., 2012. Parity of participation in liberal welfare states: human rights, neoliberalism, disability and employment. Disability & Society, 27(6), pp.823-836.

Quinlan, M., 2012. The ‘pre-invention’of precarious employment: the changing world of work in context. The Economic and Labour Relations Review, 23(4), pp.3-24.

Squelch, J. and Guthrie, R., 2010. The Australian legal framework for workplace bullying. Comparative Labor Law & Policy Journal, 32(1).

Steele, J., 2010. Tort Law: Text, cases, and materials. Oxford University Press.

Symeonides, S.C., 2011. Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey. The American Journal of Comparative Law,59(2), pp.303-394.

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