Countering Common Law Claims

Today George looks at the huge legal monster that is Common Law (you mat like to also read his previous article Common Law Liability which covers the concept in detail). It amazes me that some Safety Professionals can quote every subclause of Statute Law but look blankly when you ask them about Common Law and have no idea about how their responsibility extends beyond employees and specific OHS Legislation. I am no Lawyer so I will be brief and probably stand corrected, but Common Law is based on the premise that you are “Innocent until Proven Guilty” where the other party has to prove you were negligent, as opposed to breaking Statute Law where for example if an employee is injured you are “Guilty Until Proven Innocent” under some piece of specific legislation.

Common Laws are based on principles, precedents from previous cases or, as George states below, non compliance  with any loosely relevant Standard. A desperate Judge who wants to hammer the one with the deepest pockets could even pull the “Common Sense” law. I have seen successful claims made where there was full compliance with Codes and Standards but the particulars of the situation required controls above and beyond that! NEVER think that compliance with the Code or Standard is all you have to do – under Common Law ALL risks have to be assessed and managed in their unique context and take into account not only your employees but all other 3rd parties as well.

We have all heard stories about trespassers or thieves getting injured and suing for damages. One thing that most workplaces don’t consider is the idea of an “attractive nuisance” ie you may have all the strictest procedures and rules in place for your employees but if a group of kids are attracted by say a pile of pallets in the yard or a forklift, decide to enter on the weekend, muck around and get injured then you are probably gone!!

Common Law claims usually result from injury or damage to 3rd parties where you failed in your duty of care (ie Public or General Liability). In the workplace this could be contractors, visitors, trespassers or passers-by. Many employers do not apply the same duty of care to say contractors or labour hire as they would their own employees – they get injured and put in a Workers Comp claim with their Insurer (if they have insurance) who then comes back at you some years later to recover costs under your Liability Policy – BIG TIME!

Countering Common Law Claims

Guest Post by George Robotham

There are four basic duties of the employer under personal liability:

· to provide and maintain competent staff;

· to provide and maintain a safe place of work;

· to provide and maintain safe plant and appliances;

· to provide and maintain a safe system of work. (A system means generally the way things are done).

For a fuller discussion on common law refer to the paper Common Law Liability available from this author

The following practical advice is given:

Maintain a robust safety management system.

Statutory Requirements Given the fact that if a breach of statute (Workplace Health and Safety Act (Qld) is proved, the case for damages for injury arising out of the breach is automatic, one must be especially conscious of ensuring compliance with relevant legislation. Ensuring all employees wear hard hats, safety glasses, hearing protection and seat belts as appropriate is an excellent start.

Other statutory legislation in Qld, The Radioactive Substances Act, The Coal Mining Act ,to name two such pieces of legislation, provide excellent guidance in safety matters even though there is often no legal requirement to abide by them. It is not uncommon in common law claims to call up other legislative requirements regardless of their jurisdiction; the other legislation is referred to as examples of safe, alternate, and reasonable practice adopted by other employers and other industries.

All relevant Australian standards and Codes of Practice should be complied with (where no Australian guidance is available, overseas publications should be examined). The fact that a Standard or Code of Practice is not called up in legislation, is not a valid excuse.

New employees should be trained and employees changing to alternate jobs must be trained in relevant safe job procedures. Regular retraining should be considered. Relying upon the training, a tradesman receives during his apprenticeship may be deemed insufficient.

Personnel must be placed in occupations where they are fully competent and physically and mentally suited to the rigours of their job.

All options must be considered to deal with employees who demonstrate they are not competent to carry out their occupation.

Employers must regularly examine work areas and work operations to ensure a high standard of safety.

Equipment purchased must be of high quality and must be regularly maintained.

The employer must keep up-to-date with modern methods in order to identify safe alternative methods.

Complaints regarding safety matters must be thoroughly investigated and appropriate action taken.

Caution signs, warning signs, job instructions, etc. must be adequate, reasonable, and properly communicated to employees. Their understanding should be checked.

Personal protective equipment must be of highest quality, appropriate to the risk, employees must be trained in its use, it must be properly maintained, and its use must be supervised and enforced.

Adequate, properly trained supervision must be available at all times.

The employer and his staff personnel must always provide the best safety example possible.

George can be contacted on, he welcomes debate on the above (it would be indeed a boring world if everybody agreed with George)

George Robotham, Cert. IV T.A.E.,. Dip. Training & Assessment Systems, Diploma in Frontline Management, Bachelor of Education (Adult & Workplace Education), (Queensland University of Technology), Graduate Certificate in Management of Organisational Change, (Charles Sturt University), Graduate Diploma of Occupational Hazard Management), (Ballarat University), Accredited Workplace Health & Safety Officer (Queensland),Justice of the Peace (Queensland), Australian Defence Medal, Brisbane, Australia,,,07-38021516, 0421860574, My passion is the reduction of permanently life altering (Class 1 ) personal damage

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