6. Employers' Liability

Question 1

What are the four employer’s common law duties?

Answer 1

Duties to take reasonable steps to provide:
* competent staff;
* adequate material (ie plant, equipment, and machinery); and
* a proper system of work and supervision
*a safe place of work

Question 2

What type of duty are employer’s duties?

Answer 2

a non-delegable duty

Question 3

What is the meaning of a non-delegable duty?

Answer 3

Employer can’t escape liability by delegating the duty to another party.

Question 4

What does an employer need to consider when fulfilling their duty to provide competent staff?

Answer 4

• Staff selection
• Training provision
• Supervision
• Employee dismissal

Question 5

When does the duty to provide competent staff arise?

Answer 5

where an employer knows, or ought to know, about the risk a particular worker is posing to fellow workers.

Question 6

When does extent of the duty to provide competent staff cover?

Answer 6

psychological and physical harm (bullying and/or physical injuries)

Question 7

When is the duty to prove adequate plant and equipment apply?

Answer 7

When an employer:
1. does provide plant and/or equipment
2. does not provide plant and/or equipment

Question 8

What is a reason that equipment may be inadequate?

Answer 8

because of inherent defects

Question 9

In a case where equipment in inadequate because of inherent defects, what must an employee establish?

Answer 9

1. Fault on the part of the third party
2. Causation

Question 10

What are the steps a reasonable employer must take to fulfill their duty of providing a safe system of work?

Answer 10

• Train employees to use the system
• Supervise them initially
• Monitor system compliance
• Enforce disciplinary action for non-compliance

Question 11

With regards to the duty of a safe workplace, what is the overlap between this common law duty in negligence and the statutory duty provided by the Occupiers’ Liability Act 1957?

Answer 11

Under the act, where there are dangers to the state of the premsies, an occupier owes a duty to visttors ot take reasonable care for their safety.

Similarly, an employer would qualify as n occupier in respect of work premises, and an employee as a visitor.

Question 12

What are the ways that the duty to provide a safe workplace is more onerous in common law than under statute (occupiers’ liability act 1957)?

Answer 12

1957 Act Duty:
* Can be fulfilled by delegating work to an independent contractor.
* Only applies to premises where the employer is the ‘occupier’.

Common Law Duty:
* Non-delegable
* Applies regardless of the location where employees work.
* Requires the employer to assess and address workplace dangers to ensure a safe system of work.

Question 13

How does stress apply to the duty of providing a safe system at work?

Answer 13

a safe system of work can extend to an employee who has suffered stress as a result of his work.

Question 14

What is the ‘threshold question’ to determine whether a duty would arise with regards to stress?

Answer 14

Whether injury to health through stress at work was reasonably foreseeable.

Question 15

What are the two factors that the court consider in deciding the threshold question to stress at work?

Answer 15

1. nature and extent of work done by the employee
2. Signs from the employee themselves.

Question 16

When will an employer be in breach of their duties?

Answer 16

If they fail to meet the standard of care to be expected of a reasonable employer in their position.

Question 17

What characterizes an employer’s duty in the relationship with employees?

Answer 17

An employer’s duty is a personal, non-delegable obligation, rooted in a mutual trust relationship between employer and employee.

Question 18

Who is the employer’s duty owed to?

Answer 18

owed individually to each employee.

Question 19

What does the HSWA 1974 cover?

Answer 19

Regulations governing health and safety in the workplace are made under the act.

Question 20

What is the effect of an employer breaching regulations made under the HSWA 1974?

Answer 20

they may be liable for a criminal offence

Question 21

What are the two questions a court will ask when assessing breach of duty in negligence?

Answer 21

1. What risks ought the employer to have foreseen?
2. What precautions ought the employer to have taken in response to those risks?

Question 22

How does an employee establish causation?

Answer 22

Once they have established breach, the issues of causation, intervening acts and remoteness must be considered.

Question 23

What are the two main defences raised by an employer?

Answer 23

1. Consent - voluntary assumption of risk
2. Contributory negligence