As restrictions ease and businesses begin to re-open around Australia it is important for business owners to be aware of their obligations to eliminate or as far as possible minimise the risk of their employees, customers and other invitees (such as salespeople, suppliers or service providers) contracting COVID-19 while on their business premises.
As an employer a business owner must comply with their obligations under relevant Workplace Health & Safety legislation such as the model laws that have been implemented in most Australian jurisdictions. These laws impose duties on business owners to protect workers and invitees and if breached can lead to a fine of up to $600,000 and 5 years in jail for an individual or a fine of $3 million for a corporation, depending on the extent of the breach of duty. The severity of the offence increases if the breach of duty causes a person to be exposed to risk of death or serious injury or illness.
More generally a worker or invitee may have a claim for damages in negligence against a business owner who does not act reasonably. While initially a common law action negligence has more recently been enshrined in legislation such as the Queensland Civil Liability Act 2003. In both instances the elements that are required to succeed in a claim of negligence are:
• a person (the defendant) owed a duty of care to the injured party (the plaintiff)
• the defendant breached the duty of care
• the breach caused harm or injury to the plaintiff
In respect of the breach of duty the plaintiff must prove that:
• the risk was foreseeable, or ought reasonably to have been known by the defendant
• the risk was not insignificant
• a reasonable person in the position of the defendant would have taken precautions
In the context of COVID-19, given the widespread publicity about the risk of serious illness or death (particularly for vulnerable persons) and the ease of transmission of novel coronavirus, it would be extremely difficult if not impossible for a defendant to argue that the risk was either unforeseeable or insignificant.
In order to overcome the litigation risks brought about by COVID-19 business owners should ensure they adopt an industry approved COVID-safe plan and at the very least introduce policies and procedures that require all persons attending the business premises to practise physical distancing and good hygiene. Physical distancing should reflect government guidelines – 4 square metres per person and 1.5 metres between people – while good hygiene can be achieved by ensuring access to adequate and well-stocked hygiene facilities such as hand sanitisers. More than just a defence to contracting COVID-19 hand sanitiser may ultimately protect business owners from legal liability.