Q: If the employer provides accommodation and there is an accident to an employee at that accommodation due to inadequate lighting, who is responsible for duty of care, workers’ compensation and damages? The accommodation is owned by the government.

A: According to section 23G of the OSH Act (WA), if you exercise control over the accommodation, you have a duty to maintain the accommodation so as not to expose workers to any hazards. Even if you do not own the accommodation, you may have a duty of care if you exercise control over the way in which it is managed or maintained and whether workers are required to perform some work at the accommodation.

Separately, in accordance with your common law duty of care to prevent and manage risks that may be reasonably foreseeable, it would be best practice to conduct a risk assessment of the accommodation, particularly if it is used on a regular basis. This is also recommended given the potential liability for workers’ compensation.

Liability for workers’ compensation will depend on the nature and circumstances surrounding an injury sustained at the accommodation. That is, whether the injury was by reference to a defect in the accommodation itself or by reference to an activity that happened to take place at the accommodation, and whether staying at the accommodation or the activity arose in the course of employment or was due to your instructions.

For example, if the injury is by reference to a defect in the accommodation, it is likely that you would be liable for workers’ compensation given you have encouraged the worker to stay at those premises for work purposes. On the other hand, if the injury is by reference to an activity that happens to take place at the accommodation and that activity has not been encouraged or instructed by you, you may not be liable for any consequent injuries.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Workers' compensation for current advice.