Occupational Health and Safety Law

Section 28 of the Work Health and Safety Act 2011 (NSW) outlines the duties that a worker is required to undertake while at the place of work. These duties must be adhered to in order to succeed in any action provided established under the Act. Section 28(a) precisely indicates that the worker must take reasonable care in regards to their health and safety. In the above scenario, Fingal acted under reasonable care by waiting until the warning lights were off and proceeded to grease the rollers. Normally, greasing of the rollers is only done when the warning lights are off and that is what Fingal did. Drawing from s. 7 (1) (a), Fingal was an employee of Pome Processing Pty Ltd thus fits under the definition of a worker.

Moreover, there is a need to establish whether Fingal was at the workplace at the accident. Section 8(1) indicates that a workplace can include a place where particular work of either a business or undertaking is being carried out. In this case, at the time of the accident Fingal was at the “workplace. 1 These are injuries that develop after a worker had suffered a physical injury. Under s. 4 of the Act, the definition of health includes both physical and psychological health. Therefore, the business or the undertaking scope of protection extends to psychological injuries that may be caused to the employees. However, the under s. Cinead scenario can be well explained from the perspectives of s. 37 in that the injuries were as result of exposure to witnessing Fingal arm being trapped under the conveyor belt and subsequently suffered nervous shock.

Considering the workers’ required duties under s. 28 (b), workers should ensure that their actions or omissions does not in any way adversely affect the health as well as safety of others. In this case, although there is duty that Fingal owed to other workers, his actions, however, were done in accordance to s. Athdara is an independent contractor for Pome Processing Pty Ltd which means that she is part of the workers. As workers, there are certain duties established under the Act which must be observed failure to which may lead to a breach of the duty. Firstly, under s. 28 (b), while at work, a worker is expected to ensure that their actions or omissions do not endanger either the health or safety of other persons.

Secondly, under subsection (c), the work must be done in accordance to the provided instructions that is given by the business. Having assumed that the proof of negligence has been established in this case, compensatory damages can be claimed by Padraig. Compensatory damages are awarded for damages which have been sustained by a person in this case Padraig. In Livingstone v. Rawyards3 it was held that damages are awarded to represent the plaintiff’s loss. However, for a claim of damages to successful, the onus of proof is on the plaintiff (Padraig) whereby he must show that the losses claimed were as a result of the defendant’s conduct. Moreover, there is a satisfactory establishment of the change in condition; the defendant is tasked with the evidentiary onus with which they are supposed to “to exclude the operation of the accident as a contributory cause.

”7 However, in Seltsam Pty Ltd v Ghaleb8 the court indicated that the evidentiary onus principle laid in Watt v. Rake does not shift primary burden of proof upon the defendant such as the connection between the injury suffered and fault caused by the defendant. In State Government Insurance Commission v. Oakley9the court indicated that where the defendants’ negligence resulted to injuries and further injuries were sustained by the plaintiff causal connection (for purposes of awarding damages) can be established from the following instances. The test examines the concept, would the loss or injury occurred but for the actions of the defendant? When the answer is yes, the liability is not on the defendant. However, in regards to the acts of third party which caused the loss of injury, the defendant is only liable if the injury or loss was foreseeable.