Duty of Care in Occupational Health and Safety Act

This article discusses the duty of care in the Occupational Health and Safety Act in Australia. It explains the responsibilities of employers, employees, and other individuals in ensuring safety and health in the workplace. The concept of negligence claims and the requirements for proving breach of duty are explored. The article also covers the issue of damages and the potential defenses that can be raised. Case laws are provided for reference.

Duty of Care
Student Name
College

Introduction
In Australia, the laws regarding duty of care are legislated in the 1964 Occupational Health and
Safety Act from different states, common law and the commonwealth. Regarding statute law,
which refers to laws that come about due to government process include legislations and their
regulations. Following this, the Occupational Health and Safety Act (OHSA) places
responsibilities of ensuring safety and health in the work place on employers, employees, self-
employed persons and other persons such as individuals controlling workplaces and construct
building. Similarly, the act outlines the duties as follows: employers should as far as it is
practicable, ensure that the work place is free from hazards; employers should take reasonable
care to ensure their own safety and those of others and that persons who are self employed
should ensure as far as it is practicable ensure that their work place does not in any way affect
the safety and health of others.
Following this, the act places the general duty of care on the various individuals such as
employers to ensure that their own safety and other persons at their place of work and those that
may be injured. The general duty of care aims at preventing people from getting injured,
contracting a disease or being killed because of activities taking place at the work place.
On the other hand, common law which is developed through the system of precedents has been
interpreted to mean that employers owe a duty of care to workers and third parties to take
reasonable care to ensure safety for every person. Following this, it is assumed that control of
working conditions largely rests with the employer as well as the duty to ensure occupational
safety and health. Regarding this, an employee may make a claim in the civil courts for injuries
sustained form an employer’s failure to take reasonable care to ensure safety. The claims arising
from such situation are normally referred to as ‘negligence claims’.
Under common law, the person bringing a negligence claim must prove damage in order for an
action to be taken. This differs from the 1984 OSHA since the focus is mainly on prevention.
Under the Acts, courts normally impose fines and where the act entails gross negligence, a prison
term is imposed. However, the injured parties are not compensated. Contrary to this, under
common law, each individual case is determined depending on its qualification. First, the court
considers whether the step taken by an employer is reasonable. Regarding this, the idea of what a
‘reasonable person’ would have done under the given circumstance is applied so as to be able to
determine the standard of care that the employer ought to have taken. Further, since there is no
legal definition of how a reasonable person would have behaved, the final decision depends on
the faces surrounding each case.
In cases of employers, emphasis has been put on the increased level of care required in
accordance with the current development and with new ideas of justice and raised concerns with
safety in the society. Therefore, whatever is construed to be reasonable should be in accordance
with the standards of the community at the moment (Mason & Dawson, 1996). Similarly, when
considering the position of the employer, the general test regards the behavior of a reasonable
and prudent employer taking precaution to ensure safety following what he knows or ought to

have known and where he or she has knowledge of the risks, he has an obligation to put in more
effort than usual (Stakes, 1998). Therefore, under common law the duty of care arises where the
employer could have foreseen that his or her conduct will cause harm to the plaintiff as was
established in Donoghue v. Stevenson.
Question 1
The following gives a clear illustration as to whether Ravi owed Archana a duty of care during
the occurrence of the incident. Regarding this, Archana has to raise the issue of negligence as it
falls under common law. Whenever common law is raised, one has to prove for features. First
and the most relevant under this issue is that; the claimant has to establish that there was the duty
of care owed to him or her by the defendant when the incident took place. In this instance,
Archana can argue that Ravi owes her the duty under the concept of general duty which provides
that employers have to take all practicable measures to ensure safety of their employees and
those of other individuals that might come to their place of work. In addition, Ravi being the
manager is tasked with the general control of the place and ensuring to avoid injury of other
persons. The duty comes into existence upon proving that their act or omission could reasonably
be expected to affect the people around. Similarly, one has to show that he or she was depending
on the particular person tasked with ensuring safety, to take precaution in the circumstance.
Prove of these shows that the person owed the individual the duty of care. Therefore, in this
instance Ravi owed Archana a duty of care since, it is expected that Ravi the manager ought to
take reasonable care to ensure that the mess is cleaned. Contrary to this, Ravi after being
informed of what had happened, just asked for it to be cleaned but failed to follow up. The
follow up could have proved his reasonable care to ensure a safe place free from harm for the
clients.
Question 2
Regarding prove of breach of a duty, in the case of Wyong v. Shirt, the High Court came up with
the test used to establish whether a defendant has breached his or her duty of care owed to the
other person. The test requires answers to the following questions to be given: would any
reasonable person in the given circumstance have foreseen a risk of injury to the injured party or
parties arising out of his conduct? And what would have the person done as a way of responding
to the foreseeable risk? In addition, the court in determining liability of the defendant has to
consider what was known to him or her at the time of the incident. Further, the laws provide that
a person does not breach the duty of care unless it is proved that; the risk was foreseeable, it was
significant and that a reasonable person would have taken precaution to prevent the harm.
Therefore, in this instance, Archana in proving the breach of duty of care can argue that: any
reasonable person in the position of Ravi could have been capable of foreseeing that the mess at
the door could cause injury to the clients coming and leaving the place. This is so because the
place at that particular night was very busy and people engaged in drinking which required a
high level precaution to be taken to ensure safety. Additionally, at the time the incident occurred,
Ravi was well aware about the mess at the door but up to the moment he did not follow up on
Dara to ensure it had been attended to. Therefore, despite the fact that Ravi ordered Dara to

clean up, he did not take reasonable care to follow it up and this therefore makes him liable for
breach of duty.
Question 3
The issue of damages arises where a person has suffered harm or loss and it is essential in any
case where the plaintiff is suing the defendant for negligence. Following this, an employee is
termed to be legally liable if the client suffers harm under his or her care, upon prove that the
employee was negligent. In order to prove this, a number of factors have to be established. The
plaintiff has to establish that the employee owed him or her duty of care; that the injury suffered
in the circumstance was reasonably foreseeable; that the employer did not take reasonable care to
prevent the occurrence of the injury and that harm suffered was caused by the breach of duty. In
the instance of Ravi and Archana, it is clear that on that fateful night, Ravi was the manger and
therefore in charge of overseeing everything. In addition, Ravi as illustrated in question one
owed Archana a duty of care and therefore he was to ensure her safety as well as that of other
clients.
Further, the injury suffered by Archana was reasonably foreseeable since the mess had been
made near the door that was the pass was. Under this circumstance, any reasonable person would
have been capable of foreseeing a risk that could be caused by the mess at the door. On the other
hand, Ravi after being informed of the mess only asked Dara to clean it and failed to play his
supervisory role of ensuring safety and therefore failing on taking reasonable precaution.
Therefore in this circumstance, Archana as a client was under the care of Ravi who owed her a
duty of care. Following this, he failed to take reasonable caution to ensure safety and which
proves the element of damage caused.
On the other hand, Archana can successfully prove damage since after falling that night; she got
a back fracture that requires her to be operated on unlike before the incident where she was in
good health. Also, due to the injuries sustained, she will not be able to continue with her part
time job which proves the damage she has suffered and has to go through because of failure on
the part of Ravi to ensure that the place of work is safe and free form any harm to the workers
and the third parties in general. Following, this Ravi will be liable for the damages that have
been suffered by Archana.
Question 4
Following the occurrence of the incidence, Ravi is able to raise some common law defence to be
relied on. The defences include; inevitable accident where upon raising it, he can state that since
Archana had taken part in drinking the accident could not have been avoided. Additionally, he
can rely on contributory negligence where he will have to prove that; since Archana had taken
part in drinking she could not have taken reasonable care to ensure her safety.

Question 5
Regarding damages, Archana can prove two types of damages; the general and special damages.
She can ask for general damages following that she generally suffered due to the failure on the
part of the manager Ravi, failing to take precaution to ensure the place is safe for the clients. In
addition she can successfully claim for special damages for suffering a back fracture that will
have to see her spend some months in bed and also need surgery. She can also claim for special
damages following her giving up her job due to the injuries sustained from the incident.
Conclusion
Therefore, the conclusion drawn is that: Archana can successfully bring negligence claims
against Ravi for failing to take reasonable measures to ensure that he provides a safe and health
working place for the clients at MacDonald’s in particular Archana who has sustained injuries
due to the fateful incident. Following this, Archana is able to claim for general and special
damages for harm caused.

Cases Laws
Donoghue v Stevenson, 301 N.Y. 468, 95 N.E.2d 802, 95 N.Y.S.2d 610 (1932).
Swanowick j stokes v guest keen and nettlefiled (bolts and nuts) ltd 34 N.Y. 46, 35 N.E.2d 562, 35
N.Y.S.2d 30 (1968)
Foundry case final appeal: mason, willson and dawson jj, 5 U.S. 137, 2 L. Ed. 60, 2 L. Ed. 2d 60
(1803).