1.3.4 Negligent third parties Negligent third party recoveries | Recovery potential - third party examples | Third party liability | Contributory negligence

A third party has a liability to reimburse WorkSafe, in whole or in part, if their negligence contributed to a worker’s injury.

The legislation provides for WorkSafe to be proportionally indemnified by a negligent third party if they caused death or injury.

The liability of the third party is limited to an amount that the third party would but for the legislation, be liable to pay to the worker at common law.

The legislation enables WorkSafe to recover compensation paid and the excess paid by an employer. The decision to recover the employer excess is at the sole discretion of WorkSafe and there is no right of appeal.

It is recommended that claims be reviewed for recovery potential.

If the claim is: Negligent third party recoveries

If the Agent considers there is recovery potential, they are to contact the Recoveries Team at WorkSafe.

Step Agent action
Agent determines potential and sends claim file to WorkSafe's recoveries team

If recovery potential has been identified, the Agent sends the claim details to WorkSafe’s Recoveries Team.

See: Use of private investigators

WorkSafe allocates to panel firm

WorkSafe’s Recoveries Team determines if recovery is a viable option. If recovery from the third party is a viable option, they:

  • allocate the claim to either a recoveries panel firm or to the internal Recoveries Team
  • refer the claim to the panel firm or the internal project operators.
Recovery is pursued to conclusion

The panel firm conducts the recovery and advises WorkSafe of the claim status and progress.

This includes:

  • recovery estimate
  • cost estimate
  • recovery status
  • litigation status.

The panel firm submits disbursement account, interim and final costs (including costs awarded against WorkSafe) and payment authorisations to WorkSafe. Once WorkSafe authorises the invoices, they are referred to the Agent for payment.

The Agent pays costs, ensuring they enter the correct codes.

The panel firm updates the recovery and litigation status.

Back to top Recovery potential - third party examples

This section contains examples of third party negligence, grouped into the following broad risk The probability of the worker not returning to work is known as the risk or risk factor. For example: if a worker is likely to return to work, the claim is categorised as low risk. categories.

Designers, suppliers, manufacturers & service maintenance
Owner & occupier liability
Labour hire
Exposure to hazardous substances
Animal attacks
Bullying & assaults

Employers must provide safe workplaces and protect employees from bullying and occupational violence from fellow employees. Violence occurring outside the workplace is not usually foreseeable by the employer. However, an employee should not be subjected to unreasonable behaviour from the same person or group of persons on separate occasions.

Similarly, a worker is assaulted by a third party customer in a dispute over payment for supplies. Where the assailant is not a co-worker the cause of the dispute/argument can be work related.

Note: When coding the claim, Agents must code the accident type by the causation of the injury that is 'bullying' and/or 'assault' not the resultant condition, which is 'stress'.

Back to top Third party liability

Liability for third party negligence depends on these basic principles:

  • a legal entity owes a standard of care to others
  • liability can be assumed through:
    • acts of negligence
    • deliberate and intended behaviour.
Standard of care owed

Generally, a legal entity owes a standard of care to others in the way they conduct their affairs. This applies whether they are an individual or a company. They should not expose others to a foreseeable risk of injury.

Examine circumstances

Agents should look closely at the circumstances that have actually caused the injury to determine whether deliberate and intended behaviour of a third party or the failure of a third party to discharge a standard of care has contributed to the injury.

Failure to discharge standard of care

A third party may be held liable for injuries sustained by workers if the third party has acted negligently and failed to discharge a standard of care. These circumstances allow a worker to recover damages against the third party and entitle WorkSafe to recover any compensation paid or payable.

Bullying & harassment

A third party liability can arise due to other circumstances that can include deliberate and intended behaviour such as cases involving assault, bullying and harassment by members of the public or by co-workers.

Reasonableness of standard of care

The expected standard of care varies according to circumstances. The risk must be reasonably foreseeable and the public and workers must be warned of these risks.

The standard of care must be reasonable. The test of what is reasonable is based on what the ‘reasonable person' would consider as being the appropriate level of care.

The standard of care regarded as being reasonable depend on the:

  • nature of the worker's occupation
  • inherent dangers involved in the occupation
  • skills and experience of the worker.

The risk must be reasonably foreseeable, that is, it is possible to predict actions or precautions that would have avoided injury without requiring the benefit of hindsight.

Third party obligations

A third party is obliged to ensure that their processes or business operations are conducted with reasonable safety.

It follows that any person performing work at any other persons' business or residence must be instructed in and required to observe relevant safety procedures, instructions and warnings.

Back to top

Adequate warnings

Members of the public and/or workers must be adequately warned of various risks of which the third party should be aware.

Workers performing work under the direction and control of a third party must be:

  • properly instructed how to perform the work
  • adequately supervised
  • made to follow any warnings or instructions
  • provided with adequate training and equipment
  • provided with competent and efficient co-workers
  • provided with a safe place of work
  • provided with regularly maintained and safe equipment that is fit for the task.
Standard of care for people invited onto premises

Owners or occupiers of premises providing entertainment, information, goods or services have a high standard of care, particularly because they are inviting people onto their premises.

The obligation to take reasonable care must be owed at the time of the accident or injury.

The injury must be directly related to third party negligence through the failure to discharge a standard of care. It must not be too remote.

Employers owe a non-delegable duty of care for their employees. This obligation includes ensuring that workers are not exposed to the likelihood of injury when working in the premises or in a worksite controlled by another party.

The employer should inspect the premises regularly and take action to remove the risk of injury. Failure to do so would be held by the courts as contributory negligence. Contributory negligence

In claims involving contributory negligence the amount recoverable is limited to the extent of third party contribution.

The extent of the third party's contribution toward the causes of the worker's injury determines the amount recoverable from a negligent third party. The contribution of the employer, worker and third party needs to be taken into account.

The contributory negligence of the worker reduces the liability of the third party.

Next | Back to top