employer's liability Flashcards
(19 cards)
Employer’s liability - main points
Claims by an employee against the employer, where the employee sustains actionable harm in the course of the employment relationship
Wilsons & Clyde Coal Ltd v English – Employer cannot delegate their responsibility for compliance with the duty of care
Wilsons & Clyde Coal Ltd v English – The employer’s duty of care in negligence is personal to the employer and employee
Employer has to consider any special characteristics of individual employees (Paris v Stepney Borough Council)
what are the aspects of the employer’s single duty?
the obligation is threefold, the provision of competent staff of men, adequate material, and a proper system and effective supervision.
Staff
- Employer under duty to provide each employee with reasonably competent colleagues – Wilsons.
how duty of “staff” is applied in difference contexts
o Recruiting and employing appropriate staff, checking qualifications: Miles v Parsons; Bucks Newsagents – girls employed to do news rounds and cross busy roads with no provisions in place.
o Instructing and training – general cleaning contractors v Christmas
o Supervising and maintaining workplace discipline
o Taking measures to protect employees against bullying, victimisation and harassment: Waters v Commissioner of Police for the metropolis
Staff - case law?
- Injuries caused by fellow employees – C can either sue colleague for negligence or C can sue employer for negligence for failing to protect C from reasonably foreseeable harm from colleague, or employer can be liable through vicarious liability.
- Smith v Crossley Brothers Limited – Initiation prank. Single isolated event. Employer not held liable because this event was not reasonably foreseeable to the employers. Contrast with…
- Hudson v Ridge Manufacturing Limited - Chadwick had reputation for being a practical joker. ‘Persistent skylarking’. Many reprimands. No further action. Employer liable under D’s personal duty to C in failing to provide competent staff.
- O’Reilly v National Rail and Tramway Appliances – Employer not held liable to C – not reasonably foreseeable that experienced employees would be so foolhardy (they hit unexploded bomb).
Equipment
- Providing equipment (not necessarily the best or latest), providing ancillary equipment (PPE), inspecting equipment periodically (more complex = more inspection), maintaining equipment, training employees how to use equipment, warning/ encouraging/ insisting employees to use equipment (Bux v Slough Metals Ltd) – contrast with McWilliams v Sir William Arrol & Co – here C lost because back then you weren’t expected to make sure employer wore harness, simply providing it was enough.
- If employer is not at fault for defective equipment because he took reasonable care when purchasing the equipment – Employers’ Liability (Defective Equipment) Act 1969 s.1(1) – employer still liable to C – employer can dispute the matter with the manufacturer if they wish. C has to prove:
o Injured in course of employment; and injury is caused by defective equipment; and ‘equipment’ issued by employer; and ‘defect’ is caused by the fault of a third party - 1969 Act - ‘Equipment’, for the purposes of the Act, is (s.1(3)): ‘any plant and machinery, vehicle, aircraft or clothing.’ – not limited to tools and machinery, equipment that the employee uses/ is required to use – includes a flagstone (Knowles v Liverpool City Council) and a ship.
workplace
- Reasonably safe, not absolutely safe – Latimer v AEC – sawdust case
- Includes temporary workplace, insofar as the employer has any control over the temporary environment – Wilson v Tyneside Window Cleaning Co. Ltd
System
- Hudson v Ridge Manufacturing Limited – if a system of working is found to be beset with dangers, employers must evolve a reasonably safe system of working so as to obviate those dangers.
- Speed v Thomas Swift & Co. Ltd – system of work is the layout of the work, the equipment needed for the work, the sequence of the work, the rate at which the work is done, training and instructions needed for the work, people needed for the work, the supervision needed for the work, the warnings and notices needed for the work, the implementation of the system of work.
o System usually involves a pattern of doing something, rather than one-off incident.
System examples
o Miles v Parkson; Bucks Newsagents – requiring C to cross a busy road constantly wasn’t a reasonably safe system of work.
o Mullaney v Chief Constable of West Midlands – arrangement for covering staff absence – C injured because under pressure
o Mountenay (Hazzard) and others v Bernard Matthews – arrangement for job rotation – turkey pluckers – repetitive job – muscle and tendon injuries - court held they should have rotated people for more variety so risk of injury was reduced.
o Mountenay – educating employees about spotting symptoms of workplace injury/ disease – knew people doing these jobs were at risk of injuries but didn’t bring to attention of staff.
Sytem case law
- Could apply to exposure to risk of violent attack by a third party (link to duty of care owed to a claimant in respect of harm sustained as a result of the conduct of a third party):
o Rahman v Arearose Ltd – history of customers leaping over counter and hurting employees
o Cook v Bradford Community NHS Trust – risk of attack from mental health patients
o Charlton v Forest Printing Ink Co. Ltd – armed robbers – system was taking the same route every time of taking cash takings to bank by employees – increased risk of armed robbery. - Employers should use initiative – general cleaning contractors Ltd v Christmas – not for the employees to come up with safe system.
- McDermid v Nash Dredging and Reclamation Co. Ltd – employer has to take reasonable steps to ensure that system is put into practice.
System: warnings - experienced workers - case law?
- Employers should take reasonable care to warn employees of risks – depends on the experience of the worker, warnings of obvious dangers, warnings of hidden dangers.
- Obvious risks – not usually a duty to warn adults of obvious risks – Tomlinson v Congleton Borough Council. But warning may be a reasonable precaution because employees are required to take risk as part of their job.
- An employer may not be under a duty to warn or advise an experienced employee of risks which the employee should recognise – Smith v Austin Lifts Ltd
- Wilson v Tyneside Window Cleaning Co. – experienced workers and obvious dangers – warning not needed. Risk of falling from window cleaning. - Baker v T. Clarke (Leeds) Ltd – experienced workers are expected to be aware of risks they know about and deal with them appropriately but if they’re falling into bad habits that the employer knew or ought to have known about, they will be under a duty to provide the employee with a reasonably safe system of work.
- Wilson v Tyneside Window Cleaning Co – experienced workers might be careless, not perfect – common law requires employers to lay down safe system – risk assessments, surveilling, etc. Employers make decisions in the calm atmosphere of a board room with advice from experts – luxury employees don’t have so they must set out safe system of work even for experienced employees.
System: warnings - hidden hazards
Pape v Cumbria County Council – employers changed cleaning chemicals – increased risk of skin problems – employers put gloves in room but they should’ve informed employees about risk and need to wear gloves.
System: warnings - inexperienced workers
Fraser v Winchester Health Authority – C’s inexperience, and responsibility for the patient, meant some instruction should have been given. Failing to pay attention to risks went to contributory negligence issue.
- Warnings and causation: ‘but for’ test – warning has to be such that people take account of it – e.g., if warning is too wordy or in a language C doesn’t understand – not good. As a matter of causation in fact, the evidence might establish that C. would not have heeded a warning: McWilliams v Sir William Arroll & Co. Limited – question of fact
Standard of care - comparator
- The standard expected is reasonable care in the circumstances of the case, not an absolute guarantee of safety in all circumstances
- Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd – “taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad” Employer must keep up to date with developing knowledge.
- Generally, the degree of care required of the employer in practice is a very high one: Winter v Cardiff RDC
factors that effect the standard of care
- Use knowledge from negligence
- Foreseeability of harm - Baker v Quantum Clothing Group Ltd – safety should be judged according to general knowledge and standards of the times. Yes or no question.
- Likelihood of foreseeable harm
o Yorkshire Traction Co. Ltd v Searby – likelihood of harm was high so employers obligated to fit plastic screen around bus driver’s compartment.
o Haley v London Electricity Board (blind person) - D. will generally owe a higher standard of care if D. ought reasonably to have foreseen that a class of people have an increased likelihood of harm.
o Walker v Northumberland County Council (1995) (work-related stress) – employer held liable for action after becoming aware of the consequences of said action on particular employee. - Seriousness of foreseeable harm - Higher the seriousness of harm, higher the care expected (Paris v Stepney Borough Council (goggles – one eye)
- Practicability of precautions - Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd – balance likelihood of harm and seriousness of harm against precautions taking into account expense and inconvenience.
- Social utility - Watt v Hertfordshire County Council - The saving of life or limb justifies taking considerable risk. Not get out of jail card, usually employer owes duty.
causation in fact?
- If equipment had been provided, would the employee have used it? McWilliams v Sir William Arroll & Co. Ltd
- If equipment had been provided, would it actually have made any difference? Davies v Global Strategies Group Hong Kong Ltd
Legal causation
- Was the claimant’s type or kind of injury reasonably foreseeable to the defendant at the time of the defendant’s breach of duty? Bradford v Robinson Rentals (1967) [frostbite; C. wins]
- The extent of the harm, and the way in which the harm arises, need not be reasonably foreseeable, as long as the type of harm is reasonably foreseeable: Bradford v Robinson Rentals
contributory negligence
- Contributory negligence
o Courts slow to find employees contributorily negligent: Caswell v Powell Duffryn Collieries
o Taking risk for employee’s own safety Jones v Livox Quarries Ltd [riding on tractor towbar] – 5%, Sherlock v Chester City Council [sawing boards] 60% contributory negligence, Maybe not pressing for the re-introduction of a safe working system?: Boothman v British Northrop.
o Failing to heed risks - Fraser v Winchester Health Authority (gas canister) 1/3 contributory negligence. Eyres v Atkinsons Kitchens and Bedrooms Ltd (driving very long hours) 33% contributory negligence
o Ignoring warnings - Wells v Mutchmeats Ltd (slippery surfaces) 40% contributory negligence
volenti
o Very rarely applied to employees
o D must prove C actually knew of the risk – subjective test - Smith v Austin Lifts Ltd
o Bowater v Rowley Regis Corporation – C has to be able to choose freely – no constraint and full knowledge of circumstances. Merely continuing to work in a situation which involves a risk is not usually ‘voluntary’ enough: Smith v Charles Baker & Sons Ltd
o if, without pressure, an employee voluntarily chooses a dangerous working method, this may be enough for the defence: ICI Ltd v Shatwell
