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

George Robotham

George Robotham

George was a Legend in the Safety World who passed away in Sept 2013 but left us with a great legacy
George Robotham
I have worked in OHS for most of my working life, many years in the mining industry including over 10 years in a corporate OHS role with BHP. Since leaving the mining industry I have worked in a variety of safety roles with a variety of employers, large & small, in a variety of industries. I was associated with my first workplace fatality at age 21, the girl involved was young, intelligent, vivacious and friendly. Such a waste! I was the first on the scene and tried to comfort her and tend to her injuries. She said to me “George, please do not let me die” We put her on the aerial ambulance to Rockhampton base hospital where she died the next day. I do not mind telling you that knocked me around for awhile. Since then I have helped my employers cope with the aftermath of 12 fatalities and 2 other life-altering events. The section "Why do Occupational Health & Safety" provides further detail but in summary, poor safety is simply very expensive and also has a massive humanitarian cost. My qualifications include a certificate I.V. in Workplace Training and Assessment, a Diploma in Frontline Management, a Diploma in Training & Assessment Systems, a Bachelor of Education (Adult & Workplace Education) , a Grad. Cert. in Management of Organisational Change and a Graduate Diploma in Occupational Hazard Management. I am currently studying towards a Masters in Business Leadership. Up until recently I had been a Chartered Fellow of the Safety Institute of Australia for 10 years and a member for about 30 years. My interest is in non-traditional methods of driving organisational change in OHS and I have what I believe is a healthy dis-respect for many common approaches to OHS Management and OHS Training. I hold what I believe is a well-founded perception that many of the things safety people and management do in safety are “displacement activities” (Displacement activities are things we do, things we put a lot of energy into, but which when we examine them closely there is no valid reason for doing them). My managerial and leadership roles in OHS have exposed me to a range of management techniques that are relevant to Business Improvement. In particular I am a strong supporter of continuous improvement and quality management approaches to business. I believe leadership is the often forgotten key to excellence in most aspects of life. I hold the Australian Defence Medal and am a J.P.(Qualified). I have many fond memories of my time playing Rugby Union when I was a young bloke.

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