The National Institute of First Aid Trainers (NIFAT) runs an ‘Ask an Expert’ page and my name appears there with the proviso that ‘Answers to questions will be posted on his public blog – Australian Emergency Law ..’   This question has come to me via that path:

If you are not a designated First Aider within your workplace do you owe a duty of care to your fellow workmates to perform first aid. Does this apply in the Education and Care setting? I know they have a duty of care to the students, children but do owe one to each other?

The answer must be that we all owe a duty of care to our workmates – this will be true in ‘the Education and Care setting’ as in any workplace.    To confirm that this must be true, ask yourself – “if a work mate was clearly in need of assistance would it be ok to ignore them?”   If you think the answer is ‘no’ (as I do) then there must be a duty to do something, but what that something is would depend on all the circumstances.  It may be no more than to initiate the workplaces emergency procedures – eg call the first aider or an ambulance, but there must be a duty to do something.

I’ll use as the NSW Act as my example as it’s based on the model Act and is similar to the Act in each state and territory other than WA and Victoria.  The Work Health and Safety Act 2011 (NSW) says that it is the duty of every Person Conducting a Business or Undertaking (a PCBU) to take steps to ensure the health and safety of those at work (s 19). As part of that duty there must be first aid and emergency procedures in place (Work Health and Safety Regulations 2011 (NSW) ss 42 and 43).   The PCBU can’t be everywhere, and if the PCBU is a company it can’t actually be anywhere (a company is a legal entity but it doesn’t have a physical existence).   The PCBU must depend on employees to implement relevant policies and act with due regard to their own safety.  It is a workers’ duty (s 28) to take reasonable care of their own safety and to:

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

Failing to assist a colleague would not be ensuring that the worker’s ‘omissions do not adversely affect the health and safety of’ their colleague.   To the extent there are first aid and emergency facilities and procedures in place there is an obligation to apply them – so call the first aid person.

Equally there may be a common-law duty if the colleague in need of assistance is in such a position that no-one else is likely to come and find them.  In R v Taktak (1988) 14 NSWLR 226 the accused was charged with manslaughter by criminal negligence when the failed to provide care for a person suffering a heroin overdose.  The accused had taken the victim from a party to his own home and by so doing ensured that no-one else would get assistance as no-one else would know she needed assistance.  Although he made some effort to assist her, he failed to call an ambulance and she died.    The accused was ultimately acquitted on the basis that, given he had no relevant training or experience, his conduct did not meet the necessary threshold of ‘gross’ negligence, but that did not deny that he owed the victim a duty of care.    A co-worker too would owe a duty of care – a duty to do something – particularly if they were aware that their colleague needed assistance in circumstances where they realised that if they didn’t call for help, no-one else was going to.  For example, assume that there are two people working in an office or remote location, and one becomes ill.  The other worker couldn’t just walk away and leave them knowing there is little or no chance anyone else will find them.  It may be different if you were working on a main thoroughfare but even so I don’t think anyone would find it ‘reasonable’ to simply walk away from, or ignore, a sick or injured workmate.

Implications

The use of the term ‘duty of care’ brings up the law of negligence.  If a worker does owe some duty to their workmate and fails to act reasonably in response, then it would be the employer that was liable both because they are vicariously liable for the negligence of an employee and for failure to ensure that an employee knew what to do in response to an emergency and that appropriate emergency procedures were in place and understood.   Suing the employee personally would only be relevant if it could be shown that they acted out of malice – ie they wanted to see their workmate suffer.

As I’ve noted however there may be a duty under the Work Health and Safety Act and if it can be shown that the worker failed to implement the work health and safety policies eg by ringing the workplace first aider or an ambulance, and again did so deliberately, there could be a criminal prosecution.

In extreme cases, such as were the accused was the only person who could call for assistance because he or she was the only person who knew where the victim was and that assistance was required, there could be criminal prosecution if the accused died (Crimes Act 1900 (NSW) ss 18 and 24) or suffered grievous bodily harm (s 54).

Conclusion

The question asked was “If you are not a designated First Aider within your workplace do you owe a duty of care to your fellow workmates to perform first aid?”   It may not extend to an obligation to ‘perform first aid’.  If there is a minor injury it can wait for the arrival of the first aid person; if it’s life threatening the person may not know what to do.  There must however be a duty to do something – at a minimum to call for assistance.

Regardless of the legal niceties as to what the duty owed to a colleague would require, it would be a pretty unpleasant workplace if people took a view that they wouldn’t help, even if they could, if they didn’t have to.  If a person who was trained in first aid saw a workmate collapse but refused to provide CPR on the basis that ‘it’s not my job; they don’t pay me to do that’ you would have to think there is something very wrong in that workplace.  if I were a WorkSafe Inspector I’d be working with the PCBU to see what is it about their workplace culture that made it so toxic as to be dangerous, how had they contributed to that attitude and what were they going to do to change it.