Tort II
Employer’s Liability
Tutorial Question #1
You are consulted by Bertie Beanpole, the general manager of a new manufacturing
company in Commonwealth Caribbean jurisdiction. Write a memorandum to Mr.
Beanpole explaining the nature of the legal duties of an employer to protect its employees
from injury, and the nature of the liability of an employer to an employee who is injured
at the work place.
MEMORANDUM
TO:
Bertie Beanpole
General Manager
FROM:
Brandace Duncanson
Legal Counsel
RE:
The Nature of Employer’s Liability
DATE:
September 2003
The liability of an employer for negligence in respect of injury suffered by his employee
during the course of the employee’s work is two-fold: an employer owes a personal, nondelegable duty of care to each employee; and may be vicariously liable for breach of the
duty of care which an employee owes his fellow employees.
At Common Law, Lord Wright in Wilson and Clyde Coal v. English, employs a
three-fold division of the employer’s duty – the provision of a competent staff of men,
adequate plant and equipment, and a safe system of working with effective supervision.
However, according to Winfield & Jolowicz of Tort, there is but one duty, a duty to take
reasonable care so to carry on operations as not to subject the persons employed to
unnecessary risk.
The majority of reported cases concern accidents, but this is only because in
earlier times there was less awareness of the risks of health, as opposed to safety,
presented by employment. The increased knowledge about matters such as the effects of
asbestos (Jameson v. CEGB [1997] 3 WLR 151), noise (Thompson v. Smith’s
Shiprepairers Ltd. [1984] QB 405), vibration (Bowman v. Harland & Wolff [1992] IRLR
349), and the effects of repetitive manual movements (McSherry v. BT [1992] 3 Med. LR
129) has produced litigation in recent years.
In many respects, an employer’s duty of care is similar to the tort of negligence.
However, even though the duty of an employer cannot easily be discharged, it is not an
absolute duty, and it is for the plaintiff to prove its breach. If a worker cannot prove
negligence, whether by direct evidence or with the aid of the maxim res ipsa loquitur, an
action based on breach of the employer’s personal duty must fail. This must be kept in
mind when examining the branches of an employer’s common law duty to his employees.
(1)
Competent staff of men
An employer will be in breach of his duty if he engages a workman with insufficient
experience or training for a particular job, and as a result a worker is injured. An
employer will be similarly liable where he continues to employ a man who is known to
be a bully, addicted to practical jokes and skylarking, habitually tardy or drunkenness, or
is in other respects a danger to his fellow workmen, and another employee is harmed by
the man. A classic example of this duty was illustrated in the case of Ifill v. Rayside
Concrete Works Ltd (1981) 16 B’dos LR 193, High Court, where the plaintiff and another
were employed by the defendants as labourers. They were both known by the defendants
to be skylarkers and had been warned on at least two occasions not to engage in such
behaviour. One day, J picked up the plaintiff and cradled him in his arms, singing a
nursery rhyme. As J carried the plaintiff forward, he tripped over a pipeline and they
both fell into a cement mixer, which was partly covered, both of them sustaining injuries.
The plaintiff brought an action for negligence. The defendants were in breach of their
common law duty not to expose the plaintiff to risk of danger emanating from
indisciplined fellow employees and were liable in negligence. Also, in the case of
Hudson v. Ridge Manufacturing Co Ltd. [1957] 2 QB 348, the defendants had in their
employ, for a period of almost four years, a man given to horseplay and skylarking. He
had been reprimanded many times seemingly without result. In the end, while indulging
in skylarking, he tripped and injured the plaintiff, a fellow employee, who sued his
employer for failing to take reasonable care for his safety. However, in Smith v. Crossley
Bros. Ltd. (1951) 95 SJ 655, where injury was done to the plaintiff, a 16 year old
apprentice, by inserting in him, during horseplay, compressed air, it was held at first
instance that the employers had not exercised adequate supervision over the apprentices
and that that lack of supervision constituted negligence. However, on appeal, it was held
that the evidence disclosed no negligence on the employer’s part because the injury to the
plaintiff resulted from a willful behavior which the employer had no reason to foresee.
Reference must also made to Coddington v. International Harvester Co. (1969) 113 SJ
265, where the workman, who had an unblemished record extending over 16 years, was a
practical joker, but his conduct had not caused actual or reasonably apprehended danger.
It was held that the employers could not have foreseen that the workman might be a
potential danger, because nothing in his previous conduct suggested that he might
endanger the safety of others, although he might amuse or annoy others. Reasonable
foreseeability seem to be the test the courts applied in distinguishing Ifill v. Rayside from
Smith v. Crossley Bros. and Coddington v. International Harvester Co. In the Ifill case it
was obvious that the plaintiff and the second defendant each had a marked propensity for
skylarking, where they persisted in spite of warnings from their employer, therefore it
was reasonably foreseeable that such behavior would likely result in harm and injury.
(2)
Adequate plant and equipment
An employer must take reasonable care to provide his workers with the necessary plant
and equipment, and is therefore liable if an accident is caused through the absence of
equipment which was obviously necessary or which a reasonable employer would
recognize to be needed. For example, 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 risk of eye injuries. The employer
must take reasonable care to maintain the plant and equipment in proper condition, and
the more complex and dangerous the machinery the more frequent must be the
inspection. In the case of United Estates 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 the truck to the ground. 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. It was not reasonable to rely on the
sideman to carry out checks on the chains and to replace defective ones. However, it was
enunciated in Davie v. New Merton Board Mills [1959] AC 604 that, at Common Law, an
employer is not liable if an accident is caused by some latent defect in equipment which
could not have been discovered by the exercise of reasonable care. In the Trinidadian
case of Morris v. Point Lisas Steel Products Ltd., the plaintiff was employed as a
machine operator at the defendant’s factory. While using a wire-cutting machine, a piece
of steel flew into the plaintiff’s right eye, causing a complete loss of sight in that eye. It
was held that the employer was in breach of its Common Law duty of care in failing to
provide goggles. Similarly, in Sammy v. BWIA, the plaintiff, who was employed as a
mechanic, was sent to repair a vehicle that had broken down on a ramp at Piarco Airport.
While attempting to start the vehicle, it caught fire. No fire extinguishers were provided,
and in attempting to extinguish the fire with a cloth, the plaintiff suffered burns. It was
held that the defendant was liable for breach of its Common Law duty to the plaintiff to
take reasonable care for his safety. By failing to provide fire extinguishers, the defendant
clearly exposed the plaintiff to an unnecessary risk when the fire started. The defendant
was under a duty to provide proper safety appliances to safeguard the plaintiff in the
event of such an occurrence.
(3) Safe system of working and effective supervision
This is the most frequently invoked branch of the employer’s duty, and it is also the most
difficult to define. It includes, however, per Lord Greene MR in Speed v. Thomas Swift
& Co., “the physical lay-out of the jib; the setting of the stage; the sequence in which the
work is to be carried out; the provision of proper warning signs and notices, and the
issue of special instructions…”
According to General Cleaning Contractors v. Christmas [1953] AC 180, in
devising a system of work, the employer must take into account the fact that workers are
often careless as to their own safety. Therefore, the employer should organize a system
which reduces the risk of injury from the workmen’s foreseeable carelessness.
In the Barbadian case of Legall v. Skinner Drilling Contractors Ltd., the
defendant company was engaged in oil drilling. The plaintiff was employed 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 10 feet from the
ground the plaintiff was given an empty oil drum to stand on. The drum toppled over and
the plaintiff 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 the plaintiff of
the danger of standing on the oil drum, was in breach of its Common Law duty to provide
a safe system of work. Another example of failure to provide a safe system of work is
the Jamaican case of Bish v. Leathercraft Ltd. where the plaintiff was operating a buttonpressing machine in the defendant’s factory, when a button became stuck in the piston.
While attempting to dislodge the button with her right index finger, the plaintiff’s elbow
came into contact with the unguarded lever, which caused the piston to descend and crush
her finger. The Jamaican Court of Appeal held that the defendants were in breach of
their Common Law duties to provide adequate equipment and a safe system of work, in
that: (a) the button had not been preheated, which caused it to become stuck; (b) no 3
inch nail to dislodge the button was provided for the plaintiff’s use, which resulted in her
having to use her finger; and (c) the lever was not provided with a guard, which would
have probably prevented the accident. Hurdle v. Allied Metals Ltd. is another good
example of an employer’s failure to provide a safe system of working and effective
supervision. In that case, the plaintiff, a 16-year-old girl, was employed by the
defendant’s as a machine operator. Without any proper training or instruction, she was
put in charge of a power-press, which was set up to stamp out heart shapes for lockets.
While the plaintiff was operating the power-press, her hand became trapped in the
machine and she was seriously injured. She sought damages in negligence on the ground
that the defendants failed to provide a safe system of work. The defendants were held to
be in breach of their duty of care, in that no adequate instruction and training had been
given to the plaintiff, having regard to her age and inexperience and the potential risk
involved.
(4)
Safe place of work
Though not expressly mentioned by Lord Wright in Wilson and Clyde Coal Co. v.
English, it is clear that the employer’s duty of care extends to the place of work, and in
some cases may also apply to the means of access to the workplace. Per Parker LJ in
Ashdown v. Samuel Williams & Sons [1957] 1 QB 409 at 430, “The employer can be
subject to no duty of care so far as the means of access consists of a public highway, but
if the employee has to cross private property, whether the employer’s own or that of a
third party, the duty should exist.” An employer has a duty to ensure that the premises
where his employees work are reasonably safe. Thus, the employer is not obliged to take
unreasonable precautions even against foreseeable risks. Note the case of Latimer v.
AEC [1953] AC 643, where heavy rainstorm caused the floor of a factory to be flooded
with water. Where the water left an oily film on the floor, the defendants did their best to
reduce the danger by covering the area with sawdust. The plaintiff, in the course of his
duty, slipped and fell. On appeal it was held that the employer had taken reasonable steps
to ensure the safety of the workmen, so they were not liable for negligence at Common
Law.
At one time, however, it was thought that because an employer had no control
over premises in the occupation of a third party an employee could not sue for injury
caused on the premises. The Modern law is that an employer cannot escape liability
where an employee’s injury took place on the premises of a third party.
In Watson v.
Arawak Cement Co., the plaintiff, who was employed by Arawak Co., was sent to work
on a ship which was in the possession of a third party. While attempting to leave at the
end of the day, the plaintiff fell from an unlit walkway and sustained injuries. Arawak
was held liable because they failed to provide a safe walkway for the employee. Even
though they had no control over the ship, they were still liable. According to Chase J, the
employer’s duty of care is a continuing duty and does not come to an end merely because
the employee has been sent to work at premises that are occupied by a third party and not
the employer.
Note the Jamaican case of Alcan Ltd. v. Nicholson (1986) where a welder, during
his lunch break, realized he ran out of cigarettes. He went to an area called the
“precipitation area” to see if he could find some. While there he suffered a serious eye
injury when caustic soda splashed into his eye. He sued the employer for breach of duty.
His claim failed because he was trespassing in the area. He knew he had no right to be in
the area and was well aware of the dangers of caustic soda. On the other hand, in the
recent case of Manchester Beverages Ltd. v. Thompson where a worker in a factory
trespassed into an area of the workplace in order to get to the showers. While there he
was injured by the careless operation of a forklift truck. The employer was held liable for
failing to provide the showers in a safe place. The trespassing was not malicious. The
worker’s reasoning for entering the area was deemed valid.
In addition to the duty of care owed at Common Law, an employer who fails to
abide by Statute will be in breach of Statutory duty. An employee who is injured as a
consequence of a breach of statutory duty must show: (a) the act which caused the
damage was regulated by the Statute; (b) the plaintiff must have been a person whom the
Statute intended to protect; (c) the damage must have been the kind of damage the Statute
intended to prevent. In the leading case of Gorris v. Scott, a ship owner was required by
Statute to provide pens for cattle on board his ship. He failed to do this, with the result
that the plaintiff’s cattle were swept overboard. It was held that the ship owner was not
liable for the loss, because the damage that the statute was intended to prevent was the
spread of contagious diseases, not the sweeping overboard of the cattle. Similarly, it was
held in the Close v. Steel Co. of Wales Ltd. that a workman who is injured by a dangerous
part of machinery which flies out of a machine and injures him cannot base a claim on
the Statutory obligation that dangerous parts of machinery “shall be securely fenced”,
because the purpose of the Statutory duty is “to keep the worker out, not to keep the
machine or its product in.” An important example of statutory duty in the
Commonwealth Caribbean is s.7 of the Factories Act Cap 347 Barbados. Such
legislation imposes an absolute obligation to provide the necessary safety equipment, and
failure to do so renders the employer liable in damages to an employee injured as a
consequence of the breach of duty. Ifill v. Rayside Concrete Works Ltd. illustrate the
nature of the duty of care owed by the employers at Common Law and under the
Factories legislation. In Ifill the plaintiff brought an action against the defendants for
breach of statutory duty. It was held that the cement mixer was a “dangerous part of
machinery” within s.10 (1) of the Factories Act, Cap 347, and the defendants were in
breach of their absolute statutory duty to fence it securely. In Morris v. Seamen Fixtures
the plaintiff was employed as a shop hand and a fitter. Without being authorized or
directed to do so she operated a planer at the factory and, in attempting to remove some
wood shavings from the machine while it was still in motion, sustained injuries to her
hand when it became caught in the machine’s rotating blades. Her claim for breach of
statutory duty succeeded. The cutting rota of the planer was a dangerous part of a
machine and the defendants were in breach of the duty imposed by s.10 (1) of the
Factories Act Cap 347, in failing to fence or to provide some other safety device to
prevent contact.
Workmen are not likely to be found guilty of Contributory Negligence where an
employer is in breach of his duty of care at Common Law a fortiori where the employer
is in breach of his statutory duty. It all depends upon the circumstances. In Ifill v.
Rayside the plaintiff was guilty of contributory negligence and damages were reduced by
50%. In Morris v. Seamen Fixtures Ltd. the plaintiff was guilty of contributory
negligence and her damages were reduced by two-thirds. In the Jamaican case of Bailey
v. Gore Ltd. the plaintiff/appellant was employed by the defendants in the operation of a
stone-crushing machine. The machine was defective in that, while it was working a bolt
frequently slipped causing the rollers to become choked and to stop. One day while
clearing the stones from the rollers the plaintiff/appellant slipped and fell. His right hand
caught between the rollers, which were not protected by any guard, and he was severely
injured. He brought an action alleging breach of Common Law duty to provide a safe
system of work and effective supervision of the stone-crushing operation. The
defendants/respondents pleaded contributory negligence on the part of the appellant. It
was held that the respondents were liable in negligence, but the damages were to be
reduced by 10% on the account of the appellant’s contributory negligence. According to
Lewis JA the principle involved is that where a man is part author of his own injury he
cannot call on the other party to compensate him in full.