To Avoid Workplace Injuries and Common Law Claims, or Not to Avoid: It is Never a Question

On Thursday 11 November 2021, WorkCover Queensland hosted and presented a webinar on avoiding workplace injuries and common law claims.  The two panel guest speakers were Luke Murphy, Partner of Murphy Schmidt, and Terry Killian, Partner of Hall & Wilcox. 

We take this opportunity to share our key takeaways and summarise its noteworthy content in the follow: 

Key points and tips for employers 

1.  Adopt occupational workplace health and safety as a part of organisation culture:

This means to include practices and procedures in the day to day running of business through the enactment of practical policies that are relevant, timely and reinforced. This should also cover the daily duties and roles of all employees. Complacency increases the risk of injury.

2.  Be diligent of all scopes of risk and consequences:

This means to be aware of not only the high-risk, high-consequence duties, but also the highly repetitive but more low-risk consequence tasks. Even though most business have a good grasp on the high consequential activities, the daily and repetitive ones can also develop into more substantial consequences the longer they are left without proper enforcement assessment. To understand this more, please see our linked article here of the tragic Dreamworld incident.

3.  Maintain relationships with employees post-accident:

This means to keep the communication lines open between employer and employees to ensure that it shows a genuine concern, and it is a priority to assist. This can also be in the form of an apt and timely apology letter. Positive engagements are seen to aid in reasonable resolutions in a timely manner when a common law claim is afoot. The longer negativity continues, if present, the harder it is to resurrect beneficial relationships as the bitterness becomes engrained.

4.  Continue to manage relationships as if the claim was not present:

This means to engage in the employer and employee relationship dynamic through the lens of if the claim was not present. Continue to make decisions not based on ‘how it could impact the claim’.  If both parties adopt an ongoing relationship independent of the claim, then the outcomes are generally seen to be positive. 

Considerations to prevent and avoid injuries from occurring  

Employers manage risk well through the development of their OWHS obligations and policies. The approach to Occupational Workplace Health and Safety (OWHS) is determinative from business to business. Larger organisations tend to be more likely to have more sophisticated structures and therefore more risks to be aware of and manage. 

Organisations that are performing OWHS successfully view it as an integral part of way to do their business. The view is not solely as a compliance requirement or something to be done as an aftermath or to avoid consequences. Existence of documents and materials are helpful, but existence alone is not relevant in and of itself. More and more it is how often the materials are implemented, refreshed, and brought to attention of employees which is important. 

Where OWHS is viewed as an integral part and not as a compliance obligation, there are generally more beneficial outcomes for the adoption of the policies. This is significant in assessing how an injury may have been sustained when an incident occurs. 

It is simply not enough now to have an induction process and leave it for years to be refreshed. If there is a culture of OWHS within the day-to-day operations, there is seen to be more positive adoption and therefore less risks prevalent. 

Clear expectations on risk management and systems of work leads to the generation of significant volumes of documentary material (manuals, procedures, job safety analysis, etc). Yes, these materials are the first place to look when evaluating a claim, however documents are helpful only to a point. It is seen that they do not necessarily replace or overcome an inherent insufficiency on how tasks are completed in the workplace safely on a daily basis. 

Even if an employer pays for the ‘best’ set of draft OWHS procedures, but they do not reflect what actually occurs on the daily and specific to that organisation’s operations, then they do not effectively alter the potential of outcomes from injuries and provide inadequate protections for both the employer and employee.  

It is vital that employers when reviewing OWHS practices to fundamentally understand at a business level, what they do, what they expect, how they train, have we updated, retrained and refreshed where needed?  

Reminder: an absence of policy is an absolute glaring omission and serious repercussions will follow. 

Employers are generally good at managing high-risk, high-consequence actions, like, the risk of a high fall and the immediate catastrophic consequences. However, the majority of common law claims do not come from the same genesis of risks. It is often seen that claims originate from the routine tasks that employees perform each and every day and on one particular occasion, something happens, and an injury occurs. Even though an induction may have been provided, additional and specifically refreshed training needs to be provided to reduce the potential of injuries occurring from complacency of such daily tasks in different varieties. 

Common law claims result in awarding a monetary sum of damages to compensate the employee once and all for the injuries causes the continued lifetime effect that occurs. 

Courts have made it clear it is not a defence that employees should have designed their own risk management systems to self-assess situations to ultimately prevent injuries. This obligation falls on the employer to provide and maintain a safe system of work. However, this does not mean the employer is obligated to micro tailor each and every task, as that is an unrealistic for the employer to go to that level of prescription. The court recognises the different scenarios during the course of work will reasonably ask the employee to exercise some judgment to apply their training to that set of circumstances. 

But a key question asked is whether or not the activity a regular and integral part of the employee’s role?  If so, there ought to be a way that the task is done and enforced by the employer appropriately. 

Considerations to manage and minimise the impact of a common law claim (post injury) 

Contrary to popular belief, most clients are not acting on the motivation for the receipt of monetary damages that comes as the award of a successful claim. Typically, it is seen that the initial intent of wanting to put forward a claim is often because the employee has felt alone, unsupported and dealt with harshly in circumstances of injury. 

Setting in place supportive frameworks for all injured employees post injury can create positive benefits to both parties of the relationship. Consistent with cultural comments on OWHS being relevant and of concern for employers, it reinforces how important it is that the employee is felt supported, and a failure to do that can lead to significant motivations for employees to see lawyers and make claims. 

Best thing for a claim is for an injured employee to go back to work, either in the pre-injury role or in some other meaningful role. This on the back of a positive continued relationship post-injury assists enormously in the communication of claims and resolving them early. 

Employers need to be wary of their immediate response after an incident. Not only the legalistic response and obligations at law, but also how the employer interacts with the injured employee and the impression given. It is important to show a genuine and compassionate response as these impressions when the employee is vulnerable will linger even after 2-3 years when they may decide to bring a claim. Sending an apology letter or letter of regret is a viable example of this (without a written admission of guilt). So long as the letter is sincere and timely, it is a simple practice that be worth its weight in gold. If not in that manner, it may incite the opposite perceived effect. 

It is also important to make sure policies are practically applied and enforced. There is no perfect system and there is only so much a human can do to responding to risks. As such, the court does consider reasonable responses to the particular risk at hand. So long as reasonable steps are taken and the employer was not ignoring the risk or omitting to do something, then the court will take that into consideration as a first positive step. Ensuring that there is a well-documented and well implemented system in place for these instances, along with good risk culture of organisation, also aids in managing a common law claim.  

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