She wants to spend the day at the races, as this has always been her favourite past time. Courts and the law of negligence do not, therefore, expect disability workers to shield their clients from all possible risks. That is, the worker (or agency) has done something that they shouldn’t have done or failed to do something they should have done. Regarding assessing the likelihood of a potentially serious injury to a client, keep in mind the potential seriousness of the injury, even where the likelihood of it occurring might seem quite remote. In what way could the worker’s personal values impact on this situation? make sure the client has access to information and support that will enable them to make decisions and to form their own values. They may claim for loss caused by the breach of duty of care even though they were not owners of the land at the time of the construction of the building. Duty of care is a difficult term to define as there isn’t a legal definition of the concept (except in occupational health and safety legislation). This concept arises out of the key principles of the Disability Services Act. That is, the worker (or agency) has done something that they shouldn’t have done or failed to do something they should have done. It can, however, pose concerns and dilemmas for staff. This case highlights that even though an employer may have breached their duty of care, the onus is on the worker to prove that the breach was a material cause of the harm suffered by the worker. The judge found the fact there was a telephone on the bench could bring the worker in contact with the handle and as such the Defendant was in breach of it's duty of care. The defendant will be guilty of negligenceif the harm suffered was foreseeable, the risk was not far-fetched and a reasonable person would have taken steps to ensure the harm did not occur. Did Mike owe Susan a duty of care? If someone is relying on you to be careful, and that reliance is, in the circumstances, reasonable, then it will generally be the case that you owe them a duty of care. What rights are at risk of being compromised or abused through the action that I do or do not take? Breach of Duty of Care. Because Susan bought the bottle of vinegar that Mike made, Susan became the person to whom Mike owed a duty of care. Information about work health and safety and electrical licensing, registration and training. Mike didn’t realise that some of the glass from the broken bottle got into a full bottle of vinegar before it was capped. A homeowner will have to take the matter to court within 10 years after a building has been completed. Offering services like counselling for anxiety or work-related stress to staff members make it less likely for you to fail in your duty to care to your employees. How could Karen balance Vera’s rights to make her own decisions and take her own risks (by attending the races) with the need to protect her from disorientation and confusion (and free of harm)? Your rehabilitation and return to work journey will be easier if you know your options, the steps to take, and who’s responsible for what. Yes. The damages that can be claimed include the costs of rectifying the defects, including consequential loss caused by the defects, and also the costs of reasonable alternative accommodation if this is necessary. A listing of useful resources available on the website. A negligence case cannot be successful on the breach of duty of care alone. She alleged the ball was deliberately kicked at her and that the child who kicked the ball had been left unsupervised. Balance foreseeable harm against the benefit. In looking for ways to adjust activities or situations when necessary to minimise foreseeable harm, consider: For example, if you have a client who is violent, you may need to curtail their access to certain areas of a group home without supervision, but that shouldn’t mean other residents should have their access restricted. The worker was standing on the 'side line' on a grassed area between two buildings talking to colleagues when she was struck. Steve is a 22-year-old man with a mild intellectual disability, currently living in a private hostel in the country, who wants to move nearer to the city. There are four key factors that are essential in deciding whether or not someone is negligent. Task 1 Workers' responsibilities Case studies Task 2 Summary Task 1 Question - Can you suggest some ways in which young people might come to harm at your organisation or in your work context? John’s favourite social activity on Friday nights is to go to the local club and have a few drinks with his mates. In addition, the Health and Safety at Work Act 1974 (HASAWA) requires employers and employees to take reasonable care for the health and safety of everyone at work, including visitors and other An owner can sue those responsible for a breach of Duty of Care for up to six years after becoming aware of the breach. A duty of care exists when someone’s actions could reasonably be expected to affect other people. placing the least restriction on client’s rights. compromising the rights of as few people as possible. Being in breach of your duty could have detrimental effects on your business and workforce. Some of the questions that you can ask yourself in determining your duty of care, as a worker are: Vera is a woman with Alzheimer’s disease who is quite confused and who lives in a private hostel. Back to the case of Peter and you. You need to be clear about exactly what the nature of the care or support is that you are providing, and on which the person is relying. For example, if you take a client who has challenging behaviours on an outing to the city, you must take precautions, with adequate supervision to ensure that no member of the public is harmed in any way. John has a physical disability. With the introduction of legislation and standards of care in the CSI (such as the Disability Services Act and Standards) community expectations have risen in recent years about what constitutes duty of care. Accordingly, it was held that the worker had not discharged her onus of proving that breach of duty for which the employer was responsible was a material cause of the harm she suffered. Her Honour was still required to provide an assessment of damages. It was agreed by the parties that each child attending the camp required one on one supervision. You heard on the grapevine that Steve has been involved in petty crime. Appropriate documentation relating to daily duty of care responsibilities should be maintained at all times (eg case notes). assessments/reports regarding the person’s needs and vulnerabilities. Duty of care can arise in all aspects of life, not just in community support services. Managing psychological injury risks and supporting mental wellbeing can … It is a persons responsibility not to harm others through carelessness. Mike runs a small business making and bottling gourmet vinegars. Information should be given to clients, staff, volunteers and significant others about considerations involved in evaluating duty of care issues. Most people with disabilities wish to lead lives which are as close as possible to that of people who do not have a disability and this inevitably involves taking some risks. A breach in the duty of care means one party that has done something, or failed to do something, which may result in injury to another and cause them to suffer a loss. She was invited to join the board due to her channels and connections with high net worth individuals and she replaced Sigma Su. The questions for the judge came down to a) was there a breach of duty, ie, was the child left unsupervised at the time of event and b) if there was a breach, was that breach causative of the ball hitting the worker. Sunday, September 7 th, 2014 I never cease to be amazed at the inconsistencies in decision of senior Australian courts about the extent of an… Read More → Categories. We appreciate your input into making our site better. This case highlights that even though an employer may have breached their duty of care, the onus is on the worker to prove that the breach was a material cause of the harm suffered by the worker. the harm was a direct result of the breach of duty. As you can see, the thrust of duty of care policy is to collaborate with the relevant people involved and to be mindful of accountability and client rights. This means that I was actually injured and lost something of tangible value – it could be time at work, lost wages, medical bills, mental pain, or anguish. This section offers information and tools to help you manage risks and protect health, safety and wellbeing. All children attending the camp had behavioural problems and/or intellectual disabilities. This means that any costs are carried not by the individual staff member who has been negligent but by the organisation itself. Breaching a duty of care is commonly known as the law of negligence. One day he accidentally knocks over and breaks one of his bottles. All you can do is rely on a range of factors, such as: Always be mindful to involve the client and significant others in the decision-making process and to document the action you decide to take, either in case notes or in the form of a report, if appropriate. The duty of care provisions of the Occupational Safety and Health Act 1984 are the starting point from which all other safety and health measures begin. Outline the process Julie could undertake to work through this dilemma. Judges when making their decisions regarding whether or not a worker has failed to provide a reasonable standard of care looks at many factors such as: A breach of duty of care exists when it is proven that the person who is negligent has not provided the appropriate standard of care. On a previous occasion Michael tried to get off the bus before a staff member was ready and it was only through the quick reflexes of the bus driver that he did not suffer an injury. This is potentially longer than the statutory warranty periods. Regarding assessing a certain activity or situation for foreseeable injury to a client or others, keep in mind: You may have a client that wants to do something that, on quick reflection, seems dangerous (such as a person with a disability abseiling), however, when you look more closely at their capabilities and their awareness of the risk involved, with certain precautions it may be quite possible to minimise the risks with appropriate care. If there is a conflict or tension between these rights then am I clear about why I am choosing to emphasise one rather than the other? The following scenario illustrates the application of duty of care in a broader sense. He found the handles should have been replaced by recessed handles. Part I: Breach of duty of care. Michael tries to get off the bus by himself, falls down the steps, and breaks his arm. 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