Community organisations have a duty of care to guests and visitors whenever hosting groups in their centre or venue. A breach of duty of care may occur through a deliberate action or omission or through staff negligence. Community venues must make sure that sound policies are in place and enacted, and that there is sufficient staff training to prevent legal liability. The community venue build should also be fit for proper use. The owners of the building and the managing staff members should make sure that the building complies with health and safety and any relevant building law.
Negligence arises where there is a breach of a duty of care. This breach must be something a ‘reasonable person would not have done or omitted.’ The damage must be a reasonably foreseeable consequence as a result of the breach. Negligent action or omission may be unintentional. However, if harm is caused, it cannot be overlooked.
There are four elements of negligence:
- There is a duty of care owed to the person
- There is a breach of this duty of care
- There must be harm suffered that was caused by the breach of the duty of care
- The harm must be a reasonably foreseeable consequence – it cannot be too remote
Harm suffered as a result of negligence is not limited to injuries to the person. Damage to property or a failure to take reasonable care is also a form of negligence. Any of the following factors could be viewed as negligence:
- Not following proper process for the recruitment of new staff, leading to an unsuitable person being given responsibilities
- Inadequate training for staff about risks and hazards of the programme
- Poor compliance with the health and safety measures
- Breach of policy
- Lack of knowledge in handling emergency situations
- Using equipment that is unsafe or inappropriate to the abilities of people using it
- Inadequate supervision of activities at the programme, particularly those with additional specific risks or hazards involved
If a community organisation is being sued for negligence, they may assess whether these defences are applicable:
- Illegality: if the complainant was involved in an illegal activity, the community venue will not be liable
- Consent: if the complainant consented to the harm, then they will not have a claim
- Contributory negligence: if the complainant has contributed to the harm they suffered through their own negligence
A person affected by a breach of duty may seek legal remedies for the harm suffered.
- Damages: this is money awarded for the harm suffered by the person. This may be awarded as a form of compensation or exemplary damages. Damages place a monetary value on the harm done. This is the most common form of remedy. However, in New Zealand, the ACC scheme prevents people from suing for monetary compensation for personal injury. Instead, they may sue for exemplary/punitive damages.
- Injunction: a High Court order preventing a person from performing any action or making a particular omission. This is reserved for more serious cases.
Useful Links and Resources
- Community Law Manual: Health and Safety Protections
- Download Health and Safety quick reference guide (ACC and Worksafe NZ)
- For more about managing employee injuries, see ACC’s websiteHealth and safety templates can be found on the WorkSafe website
- Worksafe: Primary duty of care