Employers Liability Additional Information

Legislation and Common Law Actions by Employees

The introduction of the Accident Rehabilitation and Compensation Act 1992 resulted in a reduced level of compensation available to injured employees.

The subsequent passing of the Accident Insurance Bill and introduction of the Accident Insurance Act 1998 did nothing to alter the situation.

The 1992 Act provides for cover in a more restricted range of circumstances than the 1972 and 1982 Acts.

There is no cover unless there has been a physical injury; leaving persons with the opportunity to now sue without restriction where they have suffered nervous shock or distress in the absence of physical injury.

Workplace Accidents as defined by the 1992 Act

An accident is deemed to have occurred for which compensation is available in the following circumstances:

  • A specific event or series of events involving the application of a force or resistance, external to the human body and resulting in personal injury, but does not include a gradual process.
  • The inhalation of or oral ingestion of any solid, liquid gas or foreign object on a specific occasion.
  • Any exposure to the elements or extremities of temperature or environment within a defined period of time (not exceeding one month) causing disability, and lasting for a continuous period of more than one month, or death;
  • Any burn or exposure to radiation or rays of any kind on a specific occasion that is not a burn or exposure caused by exposure to the elements.
  • The absorption of any chemical through the skin within a defined period of time; not exceeding one month.
Common Law Exposures for Employers
  • Mental anguish, in the absence of physical injury
  • Food poisoning
  • Injury caused by a gradual process; (disease or infection caused by passive smoking, and air conditioning systems for example).
  • Heart attack or stroke caused by stress.
  • Nervous shock or fright.
  • Stress and/or fatigue.
Health and Safety in the Workplace

The Health and Safety in Employment Act (1992) is now more than a decade old and during this period a significant number of employers and businesses have had experience in dealing with the Occupational Safety and Health Service in relation to workplace accidents.

Legal costs and ultimately fines have been the result for many and with the introduction of the Health and Safety in Employment Amendment Act in May 2003 the cost to business for a breach of the legislation is likely to increase significantly.

Among the changes introduced in May 2003 were:
  • Increased level of fines for companies and individuals
  • Specific confirmation of stress and fatigue as a basis for prosecution under the legislation.
  • Amended workplace definition to include motor vehicles as a place of work.
  • The prohibition on Insurers ability to indemnify its customer/s for fines and penalties.
  • The introduction of reparation awards made by courts in favour of employees who suffer harm as a result of a workplace accident. This has its origins in the passing of the Sentencing Act 2002 in July 2002.
  • The expanded definition of “employee” to include volunteers, trainees and workers on loan for the purpose of providing protection to such persons under the legislation.

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