Chapter heading 1

RECOMMENDATION 12

The primary duty of care should clearly provide, directly or through defined terms, that it applies to any person conducting a business or undertaking, whether as:

1. 
   an employer, or
   
2. 
   a self-employed person, or
   
3. 
   the Crown in any capacity, or
   
4. 
   a person in any other capacity
   

and whether or not the business or undertaking is conducted for gain or reward.

Duty owed by a ‘person’

1. 
   Statutory interpretation Acts in all jurisdictions provide that, unless the contrary is expressly provided, the term ‘person’ includes natural persons, corporations and unincorporated associations.¹⁴⁹
   
2. 
   This means that the primary duty we recommend would be owed by the operator of the business or undertaking, whether the operator were an individual, company, partnership or other body.
   
3. 
   Some concern has been expressed to us about the application of duties of a ‘person’ to individuals within an organisation. Examples have included the potential liability of a middle manager or supervisor with practical day to day control of a workplace, for and on behalf of the employer, for a breach of the duty of care of a person with management or control of a workplace. The application of such duties to individual ‘functionaries’ within an organisation is problematic. It imposes obligations on the individual to be proactive so far as is reasonably practicable, rather than merely exercising reasonable care as is required of other employees. While limitations on the effective control able to be exercised by an individual will be relevant to what is reasonably practicable for them, this may present opportunities for the individual to be put to considerable expense and distress in trying to prove this.
   
4. 
   We consider that imposing the duty of care on the ‘person’ who is conducting the business or undertaking, should overcome this concern and ensure that it is the person who is actually operating the business (e.g. the business owner or the appointed managing agent) who is the subject of the duty. As defining what is meant by ‘conduct of a business or undertaking’ might be difficult and could cause unintended consequences, we consider excluding certain individuals from the class of persons owing the duty of care to be a preferred approach.
   
5. 
   The express exclusion of ‘workers’ and ‘officers’ in those capacities from the class of persons who owe the primary duty of care would achieve the desired outcome. We note that such persons will be subject to other duties of care.
   
6. 
   Natural persons employed or engaged to undertake activities in the business or undertaking of another will be workers (within the proposed extended definition) or officers and will owe duties of care as such. They will accordingly be accountable for their conduct in those roles.
   
7. 
   We note that a person may be a worker, by being a self employed person engaged in the business or undertaking of another (e.g. a principal in a construction project), but may also be a person who is conducting his or her own business or undertaking. While that person would be excluded from owing the duty of care in the capacity of a worker ‘conducting the undertaking’ of the principal, that person is not excluded and owes the duty of care in the capacity of a person conducting a business or undertaking. Such persons would also have the concurrent, but lesser, duty of a worker to take reasonable care (discussed later in this report).