On this page
- Introduction
- Injury due to the organisation’s actions during a disaster
- Damage or injury due to the actions of the organisation’s workers during a disaster
Introduction
An organisation has obligations under the law of negligence to take reasonable care not to cause foreseeable harm to other people (such as employees, volunteers, clients or the public) or property. An organisation also has obligations under workplace laws to provide a safe and healthy work environment so far as is reasonably practicable for its workers.
Effective risk management practices help organisations manage these obligations. And risk assessment is a critical part of planning for disasters.
The information on this webpage considers:
- the circumstances in which your organisation will be liable for harm caused during a disaster, and
- the circumstances in which a worker can be held personally liable for harm caused during a disaster
Injury due to the organisation’s actions during a disaster
An organisation's responsibility to its workers and other persons to ensure their safety (and prevent injuries) during a disaster is governed by work health safety legalisation.
Work health and safety (WHS) law in Australia is legislated and regulated separately by each of Australia’s state, territory, and Commonwealth jurisdictions. WHS laws are largely harmonised across the jurisdictions through a set of uniform laws (the model WHS laws). All jurisdictions other than Victoria have adopted the model WHS laws. Victoria has similar duties and responsibilities under its Occupational Health and Safety Act 2004 (Vic).The model WHS laws imposes a duty of care on a person conducting a business or undertaking (PCBU) to provide a safe and healthy work environment for their workers and other persons (including trespassers and members of the public).
Under the model WHS laws, ‘workers’ include:
- an employee
- a contractor or subcontractor
- an employee of a contractor or subcontractor
- an employee of a labour hire company who has been assigned to work in the person’s business or undertaking
- an outworker
- an apprentice, trainee or work experience student
- a volunteer
- a person of a prescribed class
If an organisation fails to comply with the model WHS laws and as a result its workers or other persons suffer from injuries or illnesses during a disaster , it may be found to be breaching the model WHS laws which may result in enforcement action such as prosecution..
This liability can include:
- legal penalties – the organisation may face prosecution, fines or other penalties if it is found to be in violation of the model WHS laws
- damage to reputation – a workplace injury or illness can damage the organisation's reputation, leading to a loss of trust and support from the community
To mitigate the risk of liability for failing to discharge its duties under model WHS Laws during disasters, organisations should:
- develop a comprehensive workplace health and safety management system – this system should outline the organisation's policies and procedures for preventing injuries, identifying and controlling risk so far as is reasonably practicable and responding to emergencies
- provide training and education – ensure that workers are trained in workplace health and safety procedures and understand their rights and responsibilities
- conduct regular inspections – conduct regular inspections of the workplace to identify and address potential hazards
- investigate accidents and incidents – investigate any workplace injuries or illnesses to identify the cause and take corrective action
- maintain adequate insurance – ensure that the organisation has adequate workers' compensation insurance to cover the costs of workplace injuries
By taking these steps, organisations can help to protect their workers and minimise the risk of breaching the model WHS laws during disasters.
Damage or injury due to the actions of an organisation’s workers during a disaster
Liability of the organisation
In certain circumstances, an organisation can be held liable for damage and injury caused by its workers during a disaster.
This liability typically arises from the concept of vicarious liability, which means organisation can be held responsible for the negligent acts of its workers, even if the organisation itself was not directly at fault.
Key factors that can affect an organisation's liability include:
- relationship – the legal relationship between the organisation and the individual (for example, employee, sub-contractor or volunteer)
- scope – whether the damage or injury occurred within the scope of the employment or volunteer activities, and
- contributory negligence – whether the employee or volunteer acted negligently and that their negligence caused the damage or injury. Factors such as failure to comply with instructions, failure to use provided safety equipment, and intoxication at the time of the incident can be considered contributory negligence
To mitigate the risk of liability for injuries caused by employees or volunteers, organisations should:
- screen – screen employees and volunteers and ensure that individuals are qualified and trained to perform their duties safely
- supervise – provide adequate supervision and monitor workers' activities to identify and mitigate any potential safety hazards
- insure – maintain appropriate liability insurance to cover potential claims arising from damage and injury caused by workers
- plan – develop and implement clear policies and procedures for workplace safety and incident reporting
- investigate – conduct thorough investigations of any accidents or injuries to identify the cause and take corrective action
By taking these steps, organisations can help to protect themselves from liability for damage and injury caused by their workers during disasters.
Personal liability of workers
While Australian law generally places vicarious liability on employers for the negligent acts of their workers, there are circumstances where a worker can be held personally liable for damage or injury caused during a disaster.
Circumstances where a worker can be held personally liable include:
- if the damage or injury is a result of dishonest or wilful misconduct on the part of the worker
- if the worker was acting outside the scope of their employment
- if the worker breached the organisation’s policies or procedures related to safety or conduct
- if the employee's employment contract contain indemnity clauses that protect the employer from liability
- where the worker has breached the worker's duties in the model WHS laws
While the general principles of vicarious liability and worker personal liability apply, there may be variations in specific legal requirements and defences depending on the state or territory.
Each state and territory provides protections for workers carrying out community work for a community organisation, provided that certain requirements are met including the requirement to be acting in good faith.
In New South Wales, under the Civil Liability Act 2002 (NSW) volunteers are generally not personally liable for any act they have done (or not done) in good faith while doing community work that is organised by a community organisation or as an office holder of a community organisation. If a volunteer is protected, the community organisation is generally also protected and does not take on the volunteer’s liability. In certain circumstances, the community organisation may nevertheless be liable for damage caused by a volunteer.
In the Northern Territory, under the Personal Injuries (Liabilities and Damages) Act 2003 (NT) volunteers are generally not personally liable for personal injury caused by any act they have done (or not done) in good faith and without recklessness, while doing community work for a community organisation. In these circumstances, the community organisation will be liable rather than the volunteer individually.
In Queensland, under the Civil Liability Act 2003 (QLD) volunteers are generally not personally liable for civil liability which arises as a result of any act they have done (or not done) in good faith and without recklessness, while doing community work that has been organised by a community organisation. If the volunteer is protected, it’s not clear whether the community organisation will be liable rather than the volunteer individually in Queensland.
In South Australia, under the Volunteers Protection Act 2001 (SA) volunteers are generally not personally liable for civil liability which arises as a result of any act they have done (or not done) in good faith and without recklessness, while doing community work for a community organisation. In these circumstances, the community organisation will be liable rather than the volunteer individually.
In Tasmania, under the Civil Liability Act 2002 (Tas) volunteers are generally not personally liable for civil liability which arises as a result of any act they have done (or not done) in good faith, while doing community work. In these circumstances, the community organisation will be liable rather than the volunteer individually.
In Victoria, under the Wrongs Act 1958 (Vic) volunteers are generally not personally liable for civil liability which arises as a result of any act they have done (or not done) in good faith while doing community work that is organised by a community organisation. In these circumstances, the community organisation will be liable rather than the volunteer individually.
In Western Australia, under the Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) volunteers are generally not personally liable for civil liability which arises as a result of any act they have done in good faith while doing community work for a community organisation. In these circumstances, the community organisation will be liable rather than the volunteer individually.
For more information on the application of personal liability to volunteers see part 4 of our national volunteering guide: volunteer safety.
Case study – who is liable when a worker driving a car causes injury?
During a heat wave, Kilburn Community Relief organised to transport vulnerable people from their homes to air-conditioned community centres. One of the organisation’s volunteer drivers, Sarah, is involved in a car accident while transporting a group of elderly residents. Several people were injured in the collision.
Who is liable for injuries incurred? Does it matter who owns the car? Does it matter whether the staff member driving is an employee or a volunteer?
Determining liability in a car accident during a heat wave involves several factors:
- driver negligence – if the driver was negligent, such as speeding, driving under the influence of alcohol or drugs, or failing to follow traffic rules, they could be personally liable for the injuries
- employer’s vicarious liability – the organisation may be vicariously liable for the driver's negligence if the driver was acting within the scope of their employment or volunteering duties (this means the organisation could be held responsible for the driver's actions, even if the organisation itself was not at fault)
- vehicle ownership – while ownership can be a factor, it's not the sole determinant of liability. If the driver was negligent, the organisation could still be liable, regardless of who owns the car
- employee or volunteer status – whether the driver is an employee or volunteer status can influence the organisation's liability. Generally, organisations are more likely to be vicariously liable for the actions of their employees than for volunteers. However, specific circumstances and local laws may vary
Seek legal advice to determine the specific liability in this situation. Factors such as state or territory laws, the driver's employment or volunteering status and the circumstances of the accident will all play a role in determining who is liable.
In addition, Kilburn Community Relief may be exposed to regulatory scrutiny in terms of its compliance with the model WHS laws. The relevant WHS regulator may be interested in investigating whether and how Kilburn Community Relief complied with its primary duty of care with respect to the worker driver and people the driver interacted with on the road. For example, the regulator may be interested in understanding what systems were in place to ensure that the driver was competent to drive, that the vehicle was safe to drive, that the driver was adequately supervised.
Case study – who is liable when a worker using a chainsaw causes injury?
A severe storm uprooted a tree, blocking access to the Sandy Creek community centre. Dave usually works as a social worker at the centre. To clear access to the centre, Dave uses a chainsaw to cut up the blocking branches, but injures himself and a member of the community in the process.
Who is liable for injuries incurred? Does it matter who owns the chainsaw? Does it matter whether Dave is an employee or a volunteer? Does it matter that Dave doesn’t usually use a chainsaw in his role?
In this scenario, both the organisation and Dave may potentially be liable for the injuries incurred.
Determining who is liable for injuries in this case depends on various factors:
- the organisation's duty of care – the organisation will have a duty of care to ensure the safety of its staff and the community; if the organisation failed to provide adequate training or supervision for Dave or if the chainsaw was defective, it could be held liable
- the organisation's vicarious liability – the organisation may be vicariously liable for Dave's actions if he was acting within the scope of his employment or volunteering duties (this means the organisation could be held responsible for Dave’s negligence, even if the organisation itself was not at fault)
- whether Dave was negligent – if Dave's actions were negligent, he could be personally liable for the injuries; this includes factors like whether he had proper training, followed safety procedures, and acted reasonably under the circumstances
- the scope of Dave’s employment or volunteering duties – the fact that Dave doesn't usually use a chainsaw in his role may be relevant in determining whether he had the necessary training and experience to perform the task safely
- whether Dave is an employee or a volunteer – whether Dave is an employee or volunteer can influence the organisation's liability. Generally, organisations are more likely to be vicariously liable for the actions of their employees, however, specific circumstances and local laws may vary
- ownership of the chainsaw – while ownership of the chainsaw may be relevant, it's not the primary determinant of liability; the focus is on whether the person using the chainsaw was negligent and acting within the scope of their employment or volunteering duties
Seek legal advice to determine the specific liability in this situation. Factors such as state or territory laws, the chainsaw operator's employment or volunteering status and the circumstances of the incident will all play a role in determining who is liable.
In addition, Sandy Creek community centre may be exposed to regulatory scrutiny in terms of its compliance with the model WHS laws. The relevant WHS regulator may be interested in investigating whether and how Sandy Creek community centre complied with its primary duty of care to ensure that the safety of workers (including volunteers) and other people (including members of the public) is not put at risk from while the workers is doing work or as a result of work carried out as part of the conduct of the business or undertaking.
For more information, see:
Disclaimer: These resources provide general information about legal issues that may arise for not-for-profit organisations in managing disasters. This information is a guide only and is not legal advice. If you or your organisation has a specific legal issue, you should seek legal advice before deciding what to do. See full disclaimer and copyright notice.
The content on this webpage was last updated in December 2024.
