Objective Notes: W300 – Agreements, rights & responsibilities
UNIT 26 - MANUAL FOUR
EMPLOYERS’ LIABILITY/ BREACH OF STAT DUTY
Employer’s common law duty to employee
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Duty = take reasonable care for employees’ safety whilst at work but not vic liab
for (i) ind contractors’ torts or (ii) other employees’ torts committed outside
employment scope but may be personally liab on grounds have breached common
law duty;
Duty not absolute but restricted to that reasonable to protect against injuries caused
by incompetent staff, lack of adequate material (e.g. defective machinery)/ safety
equipment or proper system/ effective supervision (Wilsons & Clyde Coal Co Ltd v
English [1937] ) & dangerous premises (Latimer v AEC Ltd [1953]);
Competent staff: employer must carefully select staff, provide necessary training &
supervision but where employees remain incompetent dismiss them, so if employee
not merely incompetent but habitual conduct likely to cause danger to coemployees, employers have duty to remove
source (Hudson v Ridge
Manufacturing Co Ltd [1957]) although not extends to isolated horseplay incident
not reasonably foreseeable (Smith v Crossley Bros Ltd [1951]);
Adequate plant & equipment (P&E): employer must take reasonable care to
maintain P&E in proper condition, fit safety devices on dangerous machines &
where needed, provide protective equipment/ clothing buts not liab where, even if
P&E supplied, employee would not have used it (McWilliams v Sir William Arrol
& Co Ltd [1962]) &, re latent defects, by s.1 Employer’s Liability (Defective
Equipment) Act 1969, where injury caused ICE due to defects in equipment
provided for employer’s business attributable wholly or partly to 3rd party’s fault,
irrespective of 3rd party being identified, employer liab;
Safe system of work: employer must provide safe systems & duty is personal, nondelegable (McDermid v Nash Dredging & Reclamation Co [1987]) embracing job’s
physical lay out, sequence of work, providing, where necessary, warnings, notices
& special instructions & system modifications/ improvements when needed (Speed
v Thomas Swift & Co Ltd {1943]), insufficient to merely devise safe system –
must also take reasonable steps to ensure compliance (Pape v Cumbria County
Council [1992]) & common practice not conclusive that employer acted reasonably
since practice may be neg in itself (Thompson v Smiths Ship Repairers (North
Shields) Ltd [1984]);
Safe workplaces: employers must provide safe workplace which satisfied where
have taken steps reasonable in circumstances (Latimer v ACE Ltd [1953]) which
extends to stranger’s premises (Wilson v Tyneside Window Cleaning Co [1958]),
albeit degree of practicable care lower (Cook v Square D Ltd [1992]).
Whether duty breached
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Duty owed to all employees & breached where employer fails to take into account
(i) employee’s experience; (ii) nature of work – the more dangerous the work &/ or
equipment used, higher degree required; (iii) employee’s special characteristics whether employer knows of individual’s ‘weakness’ that may increase either risk of
injury &/or seriousness of such injury (Paris v Stepney Borough Council [1951);
Duty embraces physical & mental health – where mental illness/ breakdown due to
stress foreseeable, employer may be liab & must keep eye on employees’
workloads, be aware of symptoms of work induced stress, & operate risk assessment
policies (Walker v Northumberland County Council [1995] & threshold question re
work induced PD was not whether injury foreseeable to person of ordinary fortitude
but whether harm reasonably foreseeable re the individual concerned, taking into
account factors (i) relating to demands of job such as a) nature/ extent of work, b)
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Objective Notes: W300 – Agreements, rights & responsibilities
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whether workload much > normal for job or especially intellectually/ emotionally
demanding, c) whether demands unreasonable vis-à-vis those made on others in
comparable jobs, d) whether others in same job suffering harmful stress levels &/ or
sickness absenteeism levels in job/ dept abnormal; & (ii) relating to employee’s
special characteristics since crucial what employer knew or ought reasonably should
have known about individual’s circumstances including a) signs from employee of
impending health harm; b) particular problems/ vulnerabilities, c) pre-incident
(employee already suffered work induced stress related illness) & d)
uncharacteristic frequent/ prolonged absences attributable to work stress (Hatton V
Sutherland [2002];
Where employees contract industrial diseases resulting from work/ working
conditions foreseeable risks, employers may be liab such as re P&E noise, asbestos
related illness, vibration (e.g. vibration white finger) & repetitive manual
movements (e.g. RSI).
Where breaches of stat duty are actionable in tort
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Where duties/ obligations stat imposed, civil liab may arise so primary question =
whether stat does so provide & where expressly stated civil remedies are or are not
prescribed, primary issue incontestable but, where silent, courts determine whether
Parl’s intention to protect limited class (e.g. factory workers) rather than general
public &, if found, more likely such was intention but rule = decision depends on
consideration of entire stat plus circumstances in which enacted, key question being
what did Parl intend to achieve taking into account (i) entire stat; (ii)pre-existing
law – what injustice stat sought to remedy/ prevent; & (ii) nature of stat – industrial
safety provisions more likely to be found actionable than others such as social
welfare (Cutler v Wandsworth Stadium Ltd [1949]);
Where stat imposes duty without express breach remedy, civil action more likely
since silence implies Parl intended such as without right, protection intended cannot
be secured but where compensation prescribed, for this to be sole remedy, courts
consider (i) amount provided & adequacy – whether compensates for serious
injury/ death; & (ii) whether compensation mandatory or discretionary as to
payment and amount (Groves v Lord Wimborne [1898]) and, where stat remedies
provide only crim penalties, general rule = no other enforcement possible, unless
(i) stat/ regs thereunder designed to protect class of persons; or (ii) where stat
creates a public right & member of public suffers particular, direct & substantial
damage different to that suffered by others (Lonrho v Shell Petroleum Co Ltd (No.
2) [1981]);
A must prove that under stat B owed A duty of care & where stat specifies it
protects limited class (e.g. employees), A must be within that class (Harley v Mayoh
& Co [1954]) & that such duty was breached as defined by stat wordings ( ranging
from strict liab to reasonable practicability) but where requirements not strict, onus
of proving compliance not possible falls on def, albeit that Courts interp strictly –
where facts not fall exactly within provisions, no claim for breach;
Injury must = kind stat intended to protect (Gorris v Scott (1874)) but where
damage suffered caused in way stat not contemplate, remains actionable, - manner
of occurrence is irrelevant & claimant must show causal link from breach to loss but
where breach not sole cause sufficient if made significant contribution
(Bonnington Castings Ltd v Wardlaw [1956]);
Where stats impose co-joint duties (i.e. on both employee & employer), important
who at fault &, if substantially & in reality solely claimant, he cannot recover but
employer must also neither act/ omit to act in ways that might have caused or
contributed (Ginty v Belmont Building Supplies Ltd [1959]) so where employer at
fault in any way (e.g. inadequate instruction/ supervision or making employee work
beyond competence), breach actionable (Boyle v Kodak Ltd [1969]).
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Objective Notes: W300 – Agreements, rights & responsibilities
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Defences
A: Employer’s common law Neg liab:
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Consent (volenti) rarely successful since (i) must be true consent by employee that
has agreed risk of injury borne by himself as mere knowledge of risk insufficient;
& (ii) employees may, in effect, be ‘forced’ to run risks for economic reasons – i.e.
may lose job if do not (Smith v Baker & Sons [1891]) but the defence may succeed
where genuine & voluntary consent shown or where danger so inherent to job that
consent to reasonable danger implied (e.g. stunt men).
Contrib. neg – Damages may be reduced if employee is contrib. neg but courts make
allowances for those working in difficult, industrial & repetitive occupations & less
likely to make reductions in such situations than in less ‘dangerous’ work such as
office work.
B: Breach of stat duty
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Consent is not available where employer refused to comply with duties since cannot
escape liab because employees agreed to breach since this would be contra-public
policy (Wheeler v New Merton Board Mills Ltd [1933]) but may be available where
(i) employer vic liab but not breached duty & (ii) breach was by claimant’s
voluntarily assuming risks of injury despite well knowing dangers & where so =
true consent & defence applies (ICI Ltd v Shatwell [1964]) or for any breach where
employer not at fault;
Boyle re-affirmed contrib. neg may apply but, generally, reluctance so to do where
employees work in factory type conditions (Caswell v Powell Duffryn Associated
Collieries Ltd [1940] - claimant’s standard of care depends on circumstances & that
due from factory worker/ miner may be different from that of worker not
continually exposed to noise, strain & risks of such work).
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