Common Law Impacts of the New Code of Practice

In brief - Over the series, we have discussed identifying, assessing, controlling and responding to psychosocial hazards - but how will the new Code of Practice impact on common law workers' compensation claims?

At common law, an employer has a non-delegable duty to take reasonable care to prevent foreseeable risk of psychiatric injury to its employees.

The claimant must establish that the employer failed to take reasonable care to prevent psychiatric injury. Examples of exercising reasonable care could be to:

1. increase the level of support during peak workloads or when dealing with traumatic or sensitive subject matter; 

2. undertake regular reviews and meetings with workers;

3. set achievable performance standards and workloads for the number of workers, work hours and their skill sets

While approved codes of practice such as the Managing the risk of psychosocial hazards at work Code of Practice 2022 are not law, they are admissible in court proceedings.

A Judge may consider an approved code of practice as evidence of what the employer should have known about a hazard, risk or control and may rely on the code to determine what is reasonably practicable in the circumstances: Parry v Woolworths Limited [2009] QCA 26; Griffiths v State of Queensland [2011] QCA 57.

If you have any questions about the impact on the new Code of Practice on your common law claims, please contact us.