Legal responsibilities regarding volunteers.
Not for Profit organisations, use and rely on the services of volunteers. This article explores the exposure arising from the use of volunteers.
Legal responsibilities regarding volunteers fall into two categories:
- responsibilities to volunteers; and
- responsibilities arising out of the conduct of volunteers.
Occupational Health & Safety Legislation
This legislation will usually impose a statutory responsibility on employers in relation to non-employees such as volunteers.
Duties of employers
Every employer…shall ensure so far as is practicable that persons (other than the employees of the employer…) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer…
The section is applicable to volunteers.
The obligation of an employer under this section turns on the meaning of the phrase “so far as is practicable” and will usually require consideration of the following issues:
(a) the severity of the hazard or risk in question; (b) the state of knowledge about that hazard or risk, and any ways of removing or mitigating that hazard or risk; (c) the availability and suitability of ways to remove or mitigate that hazard or risk; and (d) the cost of removing or mitigating that hazard or risk.
The Courts have set out some principles for employers to decide the meaning of the word “practicable”. They are:
- What is practicable must be determined on the facts of the case known at the time of the event which may have been a breach, not at the time of the hearing of the case.
- The higher the seriousness of the potential outcome of the event, the more that it is expected to be done to control the risk, even if the likelihood is low. Further, more is expected to be done to control a risk which has a higher likelihood of happening, even if the outcome is less serious.
- The consideration of knowledge must take into account what someone in the position of the person not only knows, but ought to know.
- It is relevant to consider what may reasonably be expected of others. Employers should take into account the potential for inadvertence or error, or potential failures of others to comply with their obligations. However, the employer does not have to allow for unforeseeable, inexplicable or bizarre behaviour of others. Put simply, the employer should expect inherent failure of systems, but not gross misconduct.
- The ability of the person to control the circumstances and outcomes is a significant factor in determining what is practicable for them to do.The Courts are usually unsympathetic to arguments based on cost alone, but the level of effort or cost expended need not be disproportionate to the level of the risk.
- The cost of taking measures to control a risk will rarely, if ever, excuse doing nothing.
The next issue is the definition of the “workplace”. The workplace is usually defined to include a premises under the control of the employer; including any area of the employer’s enterprise in which the employer has any control. The distinction is relevant because volunteers may be injured in an area not under the employer’s sole control.
Duties of occupiers of workplaces
An occupier of a workplace shall take such measures as are practicable to ensure that the workplace and the means of access to and egress from the workplace are safe and without risks to health.
Employers are occupiers of the premises at which they conduct any part of their business but the issue is complicated by the possibility of different people having management or control of the same workplace for different purposes (or the possibility of one person having the management and another having control of the workplace). However, the legislation is interpreted to establish that the person will only be an occupier of that part of the workplace over which that person has management or control.
Duties of employees
Legislation usually requires that:
- While at work an employee must take reasonable care for…the health and safety of anyone else who may be affected by his or her acts or omissions at the workplace.
- An employee shall not wilfully place at risk the health or safety of any person at the workplace.
The significance of this obligation is that it imposes, an obligation on employees to be concerned for the health and safety of volunteers. The issue includes behaviour of an employee which is in contravention of safety directions or safety policies.
The impact of this obligation is that, provided an employee is acting within the normal course of his or her employment, although negligently, the employer will generally be vicariously liable for the actions of the employee. At law the employer may be liable vicariously for the breach by an employee of his or her statutory duty.
Liability of Occupiers
Relevant legislation usually provides that:
- An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
- In determining whether the duty of care has been discharged consideration can be given to:
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(g) whether the person entering the premises is intoxicated by alcohol or drugs voluntary consumed and the level of intoxication;
(h) whether the person entering the premises is engaged in an illegal activity;
(i) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger of the person”.
These provisions are primarily designed to render occupiers of premises liable for the state in which they leave the premises. The application of such obligations include situations where persons entering onto premises, even trespassers, are injured (for instance, falls or unsafe machinery or, in the case of children, being attracted to dangerous items attractive to those unfamiliar with their use). Such obligations are applicable to volunteers injured because of the state of the employers premises.
Obviously organisations will ensure that they adequately insure for all of these risks - but it should be clear that the insurance specifically covers:
- Liability for injury to volunteers;
- Liability for injury to others caused by volunteers.