Duty of Care at Work vs. Duty of Care in Society

Duty of Care under WHS law and Duty of care under Civil law are not quite the same thing.

WHS law applies to businesses and commercial undertakings and requires the business have and operate a health and safety management system that protects workers from physical and non-physical harm and ensures that employees are given instruction and training and are supervised to do their work safely. Business owners and Directors must ensure workplace risks are eliminated or controlled.

Civil laws exist to protect the safety and wellbeing of citizens in social situations where there may be obvious risks in certain circumstances, or if engaging in an activity or course of action. "Obvious risks" include risks that are easily recognizable, or a matter of common knowledge.

This post will examine these two responsibilities and how they are similar, yet different.

Understanding Individual Duty of Care

Individual duty of care involves the moral and legal obligation every person has to prevent harm to others. It's more than just "thou shalt not murder." These are established in the laws of Society which apply to everyone in everyday social situations. If one was to break those laws, they may be prosecuted in a Civil proceeding. Negligence that results in harm to another person or damage to another's property is a violation of duty of care and may result in a civil proceeding. For example, a mother and father have a duty of care to their children. A hospital has a duty of care to its patients. A renter has a duty of care to look after the place they are renting. Police have a duty of care to citizens to prevent foreseeable harm.

Per Section 5H of the Civil Liability Act 2002 No 22 - NSW Legislation an individual does not have a duty of care to warn another of obvious risk, unless the person asks for information about known or associated risks of an activity or course of action, or if there are other laws that require notice be provided, or if the person is a professional offering a service where risk of harm or personal injury or death is a possible consequence of the service.

Similarly, in Section 5M of the Act if a person presents risk warnings to another person about a recreational activity and the other person engages in that activity this does not of itself mean that the person who gives the risk warning to the other person owes a duty of care to that person to take precautions to avoid the risk of harm from the activity. Neither are they required to establish that the person received or understood the warning that was given or was capable of receiving or understanding the warning that was given.

While there is no common law general duty to rescue and therefore no duty to render assistance in New South Wales, there are specific laws for specific situations that do require that one must render assistance, such as the Road Transport Act 2013 (NSW) s 146 which requires any driver of a motor vehicle that is involved in an accident to stop and render assistance. Failure to do so is a criminal offence under the Crimes Act 1900 (NSW) s 52AB.

Any person that comes to the aid of another in an emergency is protected by Good Samaritan laws which offer legal protection to people who give reasonable assistance to those who are, or whom they believe to be injured, ill, in peril, or otherwise incapacitated. (The protection is intended to reduce bystanders' hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death.) Under Section 57 of the Civil Liability Act 2002, a good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

In emergency situations, individuals must weigh their good intentions against potential risks. The basis of determination is "what would a reasonable person do?" For example, if a person at the beach saw another person in deep water who was in trouble, but could not themselves swim, it would be unreasonable to expect them to put their life at risk by trying to rescue the other person. Both people may drown. It would be reasonable to expect that the person who saw the distressed swimmer to go to the Lifeguard station and inform the professionals. The Lifeguards could then effect a rescue.

Understanding Duty of Care in business

The health and safety management system of a business, company, or organisation is there to ensure a safe working environment. As per Section 19 of the WHS Act 2011, every company, corporation, or organisation has this as their primary duty of care. Business owners, Directors, and CEOs have their own duties to ensure those systems exist, operate, and are managed.

While this primary duty of care rests fully and only with the organisation itself, employees too have duties: to take reasonable care of their own health and safety and that of their co-workers, and to reasonably comply with instructions and supervision from their managers and supervisors.

At work, it is an expectation of a worker's duty in "taking reasonable care" to intervene if they see a co-worker, customer, or visitor doing something unsafe at their workplace that might put themselves or others in harm's way. You would expect this of a "reasonable human being." It is also expressly stated in Section 28 of the WHS Act. Visitors, customers, and anyone attending a worksite that is not an employee of the company also must take reasonable for their own health and safety when they are visiting as per Section 29 of the WHS Act.

In the workplace:

• Organisations have duty of care.

• Directors and CEOs have a duty to ensure.

• Workers and visitors have a duty to take reasonable care.

  
  

In social situations:

• Individuals have a general duty of care that includes not causing harm to others, being honest, obeying the law, and acting in a way that a "reasonable person" would be expected to act.

• With the exception of a few specific circumstances an individual does not have a duty of care to warn others of danger or risks (but they may by choice.)

• Individuals do not have duty of care over persons they have warned.

• Individuals may face civil proceedings if their negligence has caused harm to another or to another's property.

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.