Chapter heading 1

RECOMMENDATION 44

The model Act should place on all persons carrying out work activities (‘workers’) a duty of care to themselves and any other person whose health or safety may be affected by the conduct or omissions of the worker at work.

RECOMMENDATION 45

The duty of care should be placed on ‘workers’, defined in a way as to cover all persons who are carrying out work activities in a business or undertaking.

Note: The definition of ‘worker’ is to be dealt with in our second report.


What should the duty of care owed by a worker require?

18. 
    The objective of the duty of care placed on a worker is to ensure that the conduct or omissions of the worker do not expose any person to a risk to their health or safety. The role of the worker is more limited than that of the person for whom, or in whose business, the work is being undertaken. The worker has less ability to take active measures for health and safety. The worker’s ability to put themselves or others at risk is usually limited to their immediate conduct in acting in their role within the business or undertaking. The risk associated with the conduct of a worker is usually associated with a want of care or, occasionally, misconduct or failure to co-operate in relation to health and safety (e.g. a failure to follow instructions).
    
19. 
    We therefore consider the duty of care to be owed by a worker should have three elements:
    

• 
  to take care of himself or herself, as well as other persons who may be affected by what the worker does or fails to do at work; and
  
• 
  cooperate with reasonable action taken by the person conducting the business or undertaking (or the relevant person) in complying with the model Act. ²⁵⁸
  

20. 
    The duty of care, being subject to a consideration of what is reasonable, would necessarily be proportionate to the control a worker is able to exercise over his or her work activities and work environment.
    
21. 
    The test of reasonable care should not, in our view, be confused with the standard of conduct and proof required in a civil case for damages for negligence. A breach of the duty of care under the model Act would be a criminal offence, with significant penalties. We recommend that the model Act make clear that the requirement for proving negligence in other criminal laws apply to allegations of a breach of the duty of care of a worker. The application of that principle would require that the breach by the worker involved such a great falling short of the standard of care which a reasonable man in their position would have exercised as to merit criminal punishment.²⁵⁹