Today’s concerns come from an employed first aider who tells me that:
The company I’m employed by contracts to a site where I am sent daily to provide a first aid service.
The site where I work impose conditions on us where we are generally unable to operate to our normal SOP’s and regularly assess and treat patients alone without our partner.
For me and my partner here, would our direct employer be liable for any issues that arise from the site? (Assuming a minor injury treated solo became a bigger issue or that we missed a symptom of a more serious injury) Would any liability be spread back to the site also, and would my partner and I assume any liability legally? (Given we are regularly operating outside of our guidelines).
I don’t know what sort of ‘site’ it is but I’ll assume it’s a construction site or some other industrial site. I’ll assume therefore that everyone on the site is an employee of the company that contracts with my correspondent’s employer. I also don’t know what state or territory this question comes from but given the (near) universal work health and safety provisions it doesn’t matter. I’ll use the NSW legislation as my reference but it will be the same in other jurisdictions.
There are two PCBU’s here (ie persons conducting a business or undertaking). They are the contracting company and the first aid company. The contracting company owes a duty to ensure the health and safety of its workforce (Work Health and Safety Act 2011 (NSW) s 19(1)). That duty also includes a duty to provide appropriate emergency and first aid services (Work Health and Safety Regulation 2011 (NSW) r 42).
The first aid company not only owes a duty to its own staff (ie my correspondent and his or her partner) but also to those affected by its business (ie the potential patients and employees of the contracting company (Work Health and Safety Act 2011 (NSW) s 19(2)).
Let us assume then that because the first aiders are not working together and as a result a person receives care that is less good than it would have been if there had been two first aiders. Let us also assume that the SOPs of the first aid company say they should work together and that is industry ‘best practice’.
In that case if the contracting company is not allowing the first aiders and the first aid company to work to that standard, then the contracting company is not meeting its obligations to its workforce. But it can’t know that if the first aid company doesn’t tell them, and they can’t know that if the first aiders don’t tell them. So the first thing to do is for my correspondent to raise their concerns with their employer so the employer can raise it with the client.
As the employer of an injured employee, it is the client/contracting company that will be liable for any damages that the employee suffers. This is part of the no fault workers’ compensation scheme. It would be very unlikely that anyone would try to shift that to the first aid company. If they did the company could be liable for not ensuring its staff were able to work to their SOPs, and for any negligence of the employed first aiders – that is the rule of vicarious liability.
It is a myth that an employer can avoid vicarious liability by simply asserting that the employee did not do as they were instructed. Vicarious liability necessarily applies when the employee has been negligent – doing an authorised act (provide first aid) in an unauthorised way (one person alone) still attracts vicarious liability. (For a more detailed discussion on vicarious liability, see Who will be liable? The employer or the paramedic (May 2, 2017)).
The duty of the employee is to take reasonable care for his or her own safety, to ensure that by their actions they don’t affect the health and safety of others and to comply with relevant health and safety policies (s 28). Presumably an SOP that says first aiders should work in pairs is to enhance the safety of both the first aiders and there patients. It is therefore incumbent on the first aiders to comply with that direction and if they can’t to raise their WHS concerns with their employer. If they think the risk to them, or their patients, is too high they could and should take action to raise the issue with either their own or the sites WHS Committee, a relevant union or WorkCover. Ultimately they could refuse to work if they think the work practices they are being required to follow ‘would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard’ (s 84).
In summary, the liability for the persons injuries would fall
- To their employer, the site operator. If their practices are not ensuring the safety of their staff they could be in breach of the Work Health and Safety Act. They are liable, without proof of fault, for any injury suffered by an employee at work. If that injury is made worse because of the level of first aid provided at the direction of the employer they will be liable for all of that damage.
- If it could be shown that the failure to ensure that first aiders worked ‘two up’ was a failure to take reasonable care for the safety of the first aiders or those affected by the business (ie the patients) then there could be liability under the Work Health and Safety Act. Liability for the actual injuries to the injured person would be difficult to establish but might be possible if it can be shown that the presence of a single first aider led to a much worse outcome, but that would be very hard to prove.
- There would be no personal liability by the employed first aiders provided they have taken reasonable care which in this case I would suggest is to raise their concerns.
What should be done?
My correspondent should raise his or her concerns with their employer. The employer in turn should raise them with the contractor/client. If the client won’t let the first aid company operate in a way that they think is necessary to ensure the safety of their own staff and their potential patients, they should consider whether it is worth retaining the contract.