Chapter heading 1

RECOMMENDATION 17

The primary duty of care should not be limited to the workplace, but apply to any work activity and work consequences, wherever they may occur, resulting from the conduct of the business or undertaking.

The importance of the standard of ‘reasonably practicable’

98. 
    It is common for a number of enterprises to be conducted within a confined area. While there is often a connection between the work that each is undertaking at that place, and ongoing communication, that is not always the case. The enterprises may be situated within a ‘business park’, using common areas or facilities, but operating separate businesses.
    
99. 
    Many business activities are undertaken in areas where the public has free access and members of the public are not necessarily under the direction or control of the person conducting the business or undertaking. Often, however, the public can be directed or, at a minimum, informed by the business operator of hazards, risks and controls.
    
100. 
     In each of these circumstances, those who have little or no connection with the activities of a person conducting a business or undertaking may be exposed to risks from those activities, by reason of their proximity.
     
101. 
     This means that there may be circumstances where the fulfilment of specific safety requirements – such as safe plant, workplace and systems, or the provision of safety information – may be critical to the protection of health and safety of visitors and others who are not ‘workers’ within the business or undertaking (e.g. visitors to an industrial operation for a purpose connected with the business, public attendance at ‘open days’).
     
102. 
     For this reason, among others, we have proposed a primary duty of care that is sufficiently wide so that, in appropriate circumstances, specific safety measures for both ‘workers’ and ‘others’ may be required by the person conducting the business or undertaking.
     
103. 
     There may be concern that the primary duty of care may impose specific obligations in relation to ‘others’ over whom the duty holder may not have any practical control or ability to direct. This concern should be met by the application of the standard of reasonably practicable (such obligations are only to be met where it is both possible and reasonable for the duty holder to do so).
     
104. 
     The primary duty itself, by referring to a risk from the conduct of the business or undertaking by the duty holder, provides the causal link necessary for the duty holder to be liable for risk to ‘others’.
     
105. 
     This is a key element of ‘reasonably practicable’ in current legislation and case law. A further safeguard would exist because the proposed duty would still require knowledge of the risk emanating from the activities of the duty holder.¹⁵⁸ Foreseeability of the risk to persons from the activity is an element of this question of knowledge.¹⁵⁹ This is particularly relevant to the extension of the duty of care for the benefit of ‘others’.
     

Duty to apply notwithstanding any other duty

1. 
   We observe earlier that it would be appropriate for specific duties of care to be included in the model Act for various classes of persons (e.g. designers, manufacturers, suppliers, persons with management or control of a workplace), even though such persons owe the primary duty of care as business operators.
   
2. 
   The duties should be concurrent. The primary duty should not be limited by the existence and content of the more specific duty. To address this concern, we recommend that the model Act contain a provision expressly applying the primary duty of care of a person conducting a business or undertaking, without limitation, notwithstanding the existence and application of other, more specific duties.¹⁶⁰
   
3. 
   We illustrate this type of provision in the example primary duty. A more specific provision, for this duty, is suggested below in the example of the proposed primary duty set out later in this chapter.