Are we liable for transport we provide?
If a bus is provided by the employer to collect workers to take them to and from a worksite and there is an accident, is the employer liable for duty of care, workers’ compensation and damages?
Likely, yes. It is likely that the provision of transport to a site for the performance of work by an employer will be considered to be within the scope of an employer’s:
- Statutory duty of care – Under the Occupational Safety and Health Act 1984 (WA) (OSH Act), the duty will extend insofar as you exercise ‘control’ over the workplace, including any journeys to and from worksites. The provision of transport by the employer will likely be considered to be within your control, and therefore you would need to do all that is reasonably practicable to ensure the health and safety of your workers during that trip.
- Common law duty of care – This duty will extend as far as what risks are reasonably foreseeable to an employer. By providing the bus, any accidents are likely to be considered reasonably foreseeable.
- Liability for workers’ compensation – Under section 18 of the Workers’ Compensation and Injury Management Act 1981 (WA), employers are liable for injuries “arising out of or in the course of employment or whilst the worker is acting under the employer’s instructions”. The bus trip would likely be considered as “under the employer’s instructions”, particularly if there are no other reasonable means for the workers to travel to the site.