UNIVERSITY OF TECHNOLOGY, JAMAICA
FACULTY OF LAW 2021/2022
PROGRAMME: Bachelor of Laws
STAGE/YEAR: Year II Semester I
MODULE TITLE: LAW OF TORT 2
UNIT 2: EMPLOYER’S LIABILITY
Disclaimer: Lecture notes are taken predominantly from Commonwealth Caribbean Law of Tort
by Gilbert Kodiliyne and are not intended to breach any of the authors copyright.
Lecture notes are only to be used as a guide and are not meant to replace students independent
reading of the text book and other legal sources.
The basis of the liability of an employer for negligence in respect of injury
suffered by his employee during the course of the employee’s work is
twofold:
(a) he may be liable for breach of the personal duty of care which he owes to
each employee;
(b) he may be vicariously liable for breach by one employee of the duty of
care which that employee owes to his fellow employee.
PERSONAL DUTY OF EMPLOYER AT COMMON LAW
The common law duty of an employer to his employees was enunciated in
Davie v New Merton Board Mills Ltd as a duty to take reasonable care for their
safety. The duty is not an absolute one and can be discharged by the exercise
of due care and skill, which is a matter to be determined by a consideration of
all the circumstances of the particular case.
The duty is a non-delegable one, and the employer is accordingly not
absolved from his responsibility by the employment of an independent
contractor. The employer's duty to his employees is personal and nondelegable. He can delegate the performance of the duty to others, whether
employees or independent contractors, but not responsibility for its negligent
performance. See the case of Wilsons & Clyde Coal v English [1937] 3 All
ER 628 on this point.
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It is well established that every employer has a duty at common law
to provide:
(a) a competent staff of men;
(b) adequate plant and equipment;
(c) a safe system of working, with effective supervision;
and
(d) a safe place of work.
Competent
men
staff
of
An employer will be in breach of this duty if he engages a workman who
has had insufficient training or experience for a particular job and, as a result
of that work- man’s incompetence, another employee is injured. An
employer will similarly be liable where he continues to employ a man
who is known by him to be a bully, addicted to practical jokes or
‘skylarking’, or is in other respects a danger to his fellow workmen,
and another employee is harmed by the man.
See the cases of Ifill v Rayside Concrete Works Ltd (1981) 16 Barb LR 193,
Smith v Crossley Bros (1951) 95 SJ 655 and Hudson v Ridge Manufacturing
[1957] 2 All ER 229.
Adequate plant and equipment
An employer must take the necessary steps to provide adequate plant and
equipment for his workers, and he will be liable to any workman who is injured
through the absence of any equipment which is obviously necessary or which a
reasonable employer would recognise as being necessary for the safety of the
workman. For instance, the employer should ensure that dangerous machinery is
fitted with the necessary safety devices, including fencing, and that goggles are
provided for those types of work in which there is a risk of eye injuries. He must
also take reasonable steps to maintain plant and equipment, and he will be liable
for harm resulting from any breakdown or defect which he ought to have
discovered by reasonable diligence. Thus, in United Estates Ltd v Durrant (1992)
29 JLR 468 the Jamaican Court of Appeal held that the appellants, who were cane
farmers, were liable to a sideman employed by them for injuries suffered when a
‘chain dog’ broke suddenly and caused the sideman to be thrown off a truck.
‘Chain dogs’ had been supplied by a third party, and the appellants had no
proper system for examining them to ensure that they were in good working order.
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It was not reasonable in the circumstances to rely upon the sidemen to carry out
checks on the condition of the chains and to take defective ones out of service.
See also the case of Forbes v Burns House Ltd[Carilaw BS 2000 SC 12] , Morris
v Point Lisas Steel Products Ltd [Carilaw TT 1989 HC 142], and Sammy v BWIA
(1988) High Court, Trinidad and Tobago, No 5692 of 1983 (unreported). Compare
with Sharpe v Gibson Construction Ltd [Carilaw VC 2003 CA 4].
Safe system of working and effective supervision
An employer must organise a safe system of working for his employees and
must ensure as far as possible that the system is adhered to. A system of
work has been defined as:
“. . . the physical layout of the job; the setting of the stage, so to speak;
the sequence in which the work is to be carried out; the provision
in proper cases of warnings and notices, and the issue of special
instructions. A system may be adequate for the whole course of the job,
or it may have to be modified or improved to meet the circumstances
which arise”.-Speed v Thomas Swift and Co Ltd [1943] KB 557
The duty to supervise workmen includes a duty to take steps to ensure that
any necessary item of safety equipment is used by them. In devising a
system of work, an employer must take into account the fact that workmen
are often careless as to their own safety. Thus, in addition to supervising the
workmen, the employer should organise a system which itself reduces the
risk of injury from the workmen’s foresee-able carelessness.
In the Barbadian case of Legall v Skinner Drilling (Contractors) Ltd
[Carilaw BB 1993 HC 14], the defendant company was engaged in oil
drilling. L was employed by the defendant as a derrick man, one of his
duties being the removal of nuts and bolts from the rigs as part of the
‘rigging down’ operation. In order to remove a bolt from a rig platform
about 10 ft from the ground, L was given an empty oil drum to stand on.
The drum toppled over and L fell to the ground and was injured. It was
held that the defendant, by failing to ensure that its workers used ladders
to reach high platforms and to warn L of the danger of standing on the oil
drum, was in breach of its common law duty to provide a safe system of
working.
See also the case of Bish v Leathercraft Ltd (1975) 24 WIR 351.
Where the employee is young and/or inexperienced, there will be a breach
of the duty to provide a safe system of working if insufficient training
and instruction are not given for the particular job. In Hurdle v Allied Metals
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Ltd (1974) 9 Barb LR 1, the 16-year-old claimant was employed by the
defendants as a machine operator. Without any prior training or instruction,
she was put in charge of a power press, set up to stamp out heart shapes for
lockets. Whilst the claimant was operating the press, her hand became
trapped in the machine and she was seriously injured. Douglas CJ, in the
Barbados High Court, held the defendants to be in breach of their duty of care,
in that no adequate instruction and training had been given to the claimant,
having regard to her age and inexperience and the potential risk involved.
.
Safe place of work
An employer has a duty to take care to ensure that the premises where his
employees are required to work are reasonably safe. The duty exists only in
relation to those parts of the workplace which the employee is authorised to
enter. An employee who enters an area which he knows to be ‘out of bounds’
will generally be treated as a trespasser. It appears that this duty is greater
than that owed by an occupier to his visitors or invitees, since it is not limited
to unusual dangers, nor is it necessarily discharged by giving warning of the
danger. But the employer’s duty is not absolute; it is sufficient that the
premises are maintained ‘in as safe a condition as reasonable care by a
prudent employer can make them’, and if the employer ‘has an efficient
system to keep (the workplace) clean and free from obstruction, that is all that
can be reasonably demanded from him’.
At one time, it was thought that where an employee was sent to work at
premises over which the employer had no control, the employer would owe
no duty in respect of those premises; but the modern view is that whether the
employer is relieved of the duty or not will depend upon the nature of the
premises. For instance, if an employer sends his technician to install cable
television in a private house, the employer will not be required to inspect
the house to ensure that there are no potential hazards; but an employer who
sends a stevedore onto a ship may be required to inspect the ship for potential
dangers, such as defective hatches, and to ensure that any necessary remedial
action is taken.
In Watson v Arawak Cement Co Ltd, W was employed by the
defendant as a general worker. He was sent to work on a ship which was
in the possession of a third party. While attempting to leave the ship at the
end of his day’s work, W fell from an unlit walkway inside the ship and
sustained injuries. Chase J, in the Barbados High Court, held the defendant
liable on account of its failure to provide a suitable means of egress from
the ship and to instruct W as to the method of leaving the vessel. He said:
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Another aspect of the employer’s duty to exercise reasonable care and
not to expose his servants to unnecessary risk is his duty to provide a
reasonably safe place of work and access thereto. This duty does not
come to an end merely because the employee has been sent to work
at premises which are occupied by a third party and not the employer.
The duty remains throughout the course of his employment: General
Cleaning Contractors Ltd v Christmas. In each case, however, the
degree of care to be taken by the employer will vary according to the
circumstances. In Wilson v Tyneside Window Cleaning Co, Parker LJ
noted as follows:
The duty is there, whether the premises on which the workman is
employed are in the occupation of the master or of a third party .
. . but what reasonable care demands in each case will no doubt
vary.
Pearce LJ also echoed the principle in
these terms:
The master’s own premises are under his control. If they are dangerously in need of
repair, he can, and must, rectify the fault at once if he is to escape the censure of
negligence. But if a master sends his plumber to mend a leak in a respectable private
house, no one could hold him negligent for not visiting the house himself to see if
the carpet in the hall creates a trap.
Between these extremes are countless possible examples in which the court may
have to decide the question of fact.
In view of the circumstances in the present case, it is in my opinion appropriate to
limit my consideration of the merits of the [claimant’s] claim against the defendant
to whether or not the defendant had exercised due care and skill to ensure that, in the
course of his employment, the [claimant] was provided with safe means of access to
and egress from the [third party’s] motor vessel.
STATUTORY DUTIES:
In Jamaica, the Factories Act and Regulations is the main occupational safety
legislation that we have. However, the Occupational Health and Safety Act has been
drafted but has not yet been passed.
For the Factories Act cases to pay attention to are:
Walker v Clarke (1959) 1 WIR 143
Henry v Superior Plastics Ltd [Carilaw JM 2002 SC 33]
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DEFENCES:
VOLENTI NON FIT INJURIA
An employee's knowledge of the existence of a danger does not in itself amount
to consent to run the risk. See the case of
Smith v Baker [1891] AC 325:
The plaintiff was employed by railway contractors to drill holes in a rock
cutting near a crane worked by men in the employ of the contractors. The
crane lifted stones and at times swung over the plaintiff's head without
warning. The plaintiff was fully aware of the danger to which he was
exposed by thus working near the crane without any warning being given,
and had been thus employed for months. A stone having fallen from the
crane and injured the plaintiff, he sued his employers in the County Court
under the Employers Liability Act 1880.
It was held by the House of Lords, reversing the decision of the Court of
Appeal (Lord Bramwell dissenting), that the mere fact that the plaintiff
undertook and continued in the employment with full knowledge and
understanding of the danger arising from the systematic neglect to give
warning did not preclude him from recovering; that the evidence would
justify a finding that the plaintiff did not voluntarily undertake the
risk of injury; that the maxim "Volenti non fit injuria" did not apply;
and that the action was maintainable.
When a workman engaged in an employment not in itself dangerous is exposed
to danger arising from an operation in another department over which he
has no control - the danger being created or enhanced by the negligence of
the employer - the mere fact that he undertakes or continues in such
employment with full knowledge and understanding of the danger is not
conclusive to show that he has undertaken the risk so as to make the maxim
"Volenti non fit injuria" applicable in case of injury. The question
whether he has so undertaken the risk is one of fact and not of law.
See also the case of Baker v James Bros [1921] 2 KB 674.
CONTRIBUTORY NEGLIGENCE
Contributory negligence is a defence both to an action in negligence and
breach of statutory duty. In general, however, the carelessness of
employees as claimants is treated more leniently than the negligence of
employers, even where liability rests upon the vicarious responsibility of
the employer for the negligence of another employee.
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See the cases of Flower v Ebbw Vale Steel Iron & Coal Ltd [1936] AC 206, 214
and Staveley Iron & Chemical Co v Jones [1956] 1 All ER 403
.
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