As is the case for workers, other persons at a workplace may, by their conduct or omissions, expose themselves and others to risks to their health or safety.
We consider therefore that others at the workplace should owe a duty of care to themselves and others who may be affected by their conduct or omissions at the workplace.
What should the duty of care owed by other persons require?
We consider the duty owed by other persons should be similar to that of a worker, but without the requirement to report unsafe conditions, etc.
The reasons for requiring other persons to take reasonable care for themselves and other persons at work are similar to those relating to the duty of care of a worker. Similarly, a failure by an ‘other person’ at a workplace to co-operate with any reasonable action taken by the person conducting the undertaking (or the relevant person) in complying with the model Act may place persons at risk.
Appreciating such persons in this category might include visitors to a worksite or, alternatively, the public (passing by a worksite) who may be affected by the conduct of the undertaking, there are a range of persons that might be captured by this provision. Therefore such a duty of care would be proportionate to any control such a person is able to exercise, recognising that such duties are complementary to the overall duty of the person conducting the undertaking.
The comments made above in relation to the qualifier of ‘reasonable care’ and the test for determining a breach by a worker are equally relevant in relation to the duty of care owed by an ‘other person’.
RECOMMENDATION 48
The model Act should place a limited duty of care on other persons present at a workplace (not being a worker or other duty holder under the model Act) involved in work activity:
to take reasonable care for their own health and safety; and
to take reasonable care that their acts and omissions do not adversely affect the health and safety of others; and
to co-operate with any reasonable action taken by the person conducting the business or undertaking in complying with the model Act.
RECOMMENDATION 49
The duty of care of such other persons present at the workplace should be qualified by the standard of ‘reasonable care’, being the standard applied for negligence under the criminal law.
