The Law Handbook 2024

Chapter 10.3: Transport accident injuries 949 then a court may award damages, or up to 12 months remuneration, or order reinstatement or that the worker be given employment. Alternatively, a worker or prospective worker can apply to the Industrial Division of the Magistrates’ Court for similar orders if there has been discriminatory conduct for a prohibited reason. An employer or prospective employer has a number of possible defences to all of the above proceedings. Such defences include compliance with the Occupational Health and Safety Act 2004 (Vic), the worker being unable to perform the ‘inherent requirements’ of the adjusted employment, and the worker engaging in a fraudulent or dishonest claim. Common law claims Introduction A worker who is injured in circumstances involving the negligence of the employer, or of fellow workers for which the employer is liable, may have a claim for common law damages. There may also be a claim against a third party such as the occupier of premises where a worker is injured. Negligence An action for common law damages is based on the negligence of the employer or of fellow workers, or even of a third party. An employer owes all employees a duty to take reasonable care for their safety. If there is failure to observe the standard of care required in the circumstances, the employer is liable to them for most damage that results. Fellow workers also owe a duty of care to each other. A worker who is injured by a fellowworker’s negligence may be able to sue both the employer and the fellow employee for damages. An employer is liable for the negligence of the workers committed in the course of their employment, even where the employer is not personally at fault. The usual factors that go towards an employer’s failure to take care can be classified as follows: • failing to provide safe plant and equipment; • failing to provide safe premises and safe means of access to the premises; • failing to provide competent fellow workers; and • failing to provide a safe system of work. The last, broad category covers the organisation of the process or work. It can involve a single incident or incidents over time (e.g. repetitive work). Negligence may include a failure to: • provide adequate or competent staff to assist; • instruct the worker or the fellow workers in the operation of their part of the process; or • properly warn of the dangers involved. There is no absolute liability on the part of an employer. The important question is whether the employer has taken all reasonable precautions available in the circumstances to eliminate a foreseeable risk of injury. Breach of statutory duty Breach of statutory duty is discussed generally in Chapter 10.1: Negligence and injury. Whether the employer may have breached a safety duty imposed by legislation will often form an important part of a worker’s action for negligence. In Victoria, working conditions are regulated by a number of Acts and regulations. Breach of this legislation generally leads to the employer being prosecuted for an offence and probably being liable to pay damages to an injured worker. A number of Victorian Acts and regulations deal with employers’ duties to their workers, including the Occupational Health and Safety Act 2004 (Vic) and the Occupational Health and Safety Regulations 2017 (Vic). Contributory negligence A common defence is that of contributory negli­ gence (see ‘Establishing liability’ in Chapter 10.1: Negligence and injury). It would be difficult for the employer to prove such negligence if there has been no disobedience, no departure from usual practice and no awareness of danger by the worker. Also, the employer must, when taking reasonable care for the safety of workers, have regard to the risk of injury because of some inattention or misjudgment by the worker. Workers compensation In almost all cases where a worker is injured in circumstances giving rise to a common law action for damages, there is also a right to workers compensation. It is now not necessary for a worker to make a choice whether to receive workers compensation or damages.