Examples Flashcards
(16 cards)
General Duties owed by and to various parties
Thompson and Others V Smiths ship repairer’s (North Shields) 1984
Duty of Care Owed by Designers, Manufacturers & Suppliers
HSWR Section 2, 6
Donoghue and Stevenson (1932)
Snail in bottle of ginger beer case
Duty of Care Owed by Contractor to Client and Vice Versa
Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool) Limited (1947)*
Significance: Vicarious liability for a hired-out employee
A crane driver employed by a harbour board was hired, with his crane, by stevedores (Coggins and Griffiths) to load a ship. In working his crane the driver negligently injured an employee of the stevedores. The outcome of the case turned on the question of whether the employer/employee relationship had passed from the harbour board to the stevedores.
The House of Lords decided that the test was “Who had the authority to direct or delegate to the workman the manner in which the vehicle was driven?” Here, in operating the crane, the driver was using his own discretion which had been delegated to him by his regular employer (the harbour board). If he made a mistake in operating the crane, this was nothing to do with the stevedores company (Coggins and Griffiths).
The power to control the method of performing the work was not transferred from the harbour board to the stevedores, therefore the harbour board retained control over the driver and was vicariously liable for the driver’s negligence.
Duties Owed by Employers to Employees and others - Provision of Reasonably Competent Employees: Instruction, Training and Supervision
Wilson and Clyde Coal Co. v English
Part of section collapsed
Safe Place of Work
Latimer v AEC Ltd (1953)
Following a rainstorm the factory floor was flooded. When water cleared the floor was left with an oily film on due to oil present in factory gutters. The company spread all the available sawdust on floor but an employee still slipped and brake an ankle. The company weren’t liable because they acted reasonably in effort to protect the employees following the flood.
Safe System of Work
General Cleaning Contractor v Christmas (1953)
Information to Contractors same as Employees
R v Swan Hunter
The Swan Hunter prosecution arose from a fatal accident where employees of Swan
Hunter were working alongside contractors who failed to follow one of Swan Hunter’s safe systems of work. At trial, one issue was whether the duty in
s (2) (2) (c) obliged employers to provide information and instruction to employees of contractors.
Although section 2 sets out responsibilities of employers to their employees, the key
word in s2 (2) (c) is ‘necessary’. Thus, to ensure the safety of one’s own employees it is necessary to provide information and instruction to employees of a contractor then that is what must be done, even though this section says nothing directly about contractors.
This ruling sets out an important point of law and shows the interpretive function of the courts. When direct employees and employees of contractors are working side by side, it may be necessary for the host employer to provide training to employees of the
contractor. This has clear implications for any situation where contractors are employed
ignoring this principle can lead to situations where employees are placed at risk and
their employer is prosecuted as a result.
on a balance of probabilities
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Safe Plant, Equipment and Materials
In Davie v. New Merton Board Mills Ltd (1959),
the claimant had been injured by a defective metal drift (a chisel) which splintered in use. It was held by the House of Lords that the employer was not liable if all reasonable care had been taken in:
• Buying a reputable make of tool.
• Buying from a reputable manufacturer.
• Performing a reasonable inspection of the tool, i.e. the
defect was latent.
The situation was reversed by the Employers’ Liability (Defective Equipment) Act 1969, which provides that even if the defect is attributable wholly or partly to the fault of a third party (i.e. the manufacturer) then the employer will be deemed to be also liable.
Provision of Reasonably Competent Employees: Instruction, Training and Supervision
In Hudson v. Ridge
Manufacturing Co. Ltd (1957), the circumstances were that the employer was aware of an employee’s tendency to indulge in horseplay at the expense of his colleagues and had frequently issued reprimands and warnings. As a result of a prank by the employee in question, one of his fellow workers suffered a broken wrist. The judgment was that the employer must have known that eventually his behaviour would result in injury. The employer failed to take action to put an end to that type of conduct, to see that it did not happen again, and, if it did happen again, to
take the appropriate disciplinary action. The employer was, therefore, in breach of the common law duty to provide competent staff.
Adsett v. K and L Steelfounders and Engineers Ltd (1953)*
Significance: The meaning of the term ‘Practicable’
Mr Adsett worked in a foundry, shovelling various casting sands and compounds through a grate onto a conveyor belt below. He freely breathed in the resulting atmospheric dust and contracted pneumoconiosis. Some time later, his employers installed an extractor system, as soon as its use in the circumstances had been thought of, but too late to prevent Adsett’s condition. The question in this case was the meaning of ‘practicable’. It was held that his employers were not in breach by failing to provide the extraction earlier as the system had not been invented. To be practicable meant that the measure or system had to be known for its application to workers in the industry concerned.
J Armour v. J Skeen (Procurator Fiscal, Glasgow) (1977)*
Significance: Example of a prosecution under s.37 HSWA
A workman fell to his death while repairing a road bridge over the river Clyde. Mr Armour was the Director of Roads for the regional Council and as such the responsibility for supervising the safety of road workers was his. He had not produced a written safety policy for such work.
He was prosecuted under section 37(1) of the Health and Safety at Work, etc. Act 1974 which imposes personal liability on senior executives.
Mr Armour’s defence was that he was under no personal duty to carry out the Council’s statutory duties, one of which was the formulation of a detailed safety policy for the roads department. This was rejected. Section 37(1) imposed upon Mr Armour the personal duty to carry out the Council’s statutory duty to prepare a written policy. This he had failed to do and was therefore guilty of an offence.
Barber v. Somerset County Council (2004)*
Significance: Employers’ liability for work-related stress; trigger point for action to avert harm caused by excessive workloads
A local authority was in breach of its duty to its employee to take reasonable care to avoid injuring his health where it had become aware that his difficulties at work were having an adverse effect on his mental health, but had taken no steps to help him. Mr Barber (B) appealed against a decision of the Court of Appeal that the local authority had not been in breach of its duty to take reasonable care to avoid injuring his health. B had been employed by the local authority as a teacher and, in September 1995, was given further responsibilities. He worked between 61 and 70 hours per week, and often had to work in the evenings and at weekends. In February
1996 B told his deputy head teacher that he was experiencing “work overload”, and made enquiries about taking early retirement. In May B was absent from work for three weeks, his absence certified by his GP as being due to stress and depression. On his return to work B met with members of the school’s senior management team and said that he was not coping with his workload and that the situation was becoming detrimental to his health. He was not met with an entirely sympathetic response and no assistance was provided. In
November 1996 he left the school and did not return. Since that time B had been unable to work as a teacher, or to do any work other than undemanding part-time work. The issue was whether the Court of Appeal had been right to conclude that it was not foreseeable that, if B continued with his existing workload, he was liable to develop a psychiatric illness.
The House of Lords found in favour of Mr Barber, effectively agreeing with the trial judge that the local authority had been in breach and there was insufficient reason for the Court of Appeal to set aside that finding. The test was whether the local authority had fallen below the standard properly to be expected of a reasonable and prudent employer taking positive steps for the safety of his workers in the light of what he knew or ought to have known.
The duty to take action had arisen in June or July 1996 when B had seen members of the school’s senior management team, and had continued so long as nothing had been done to help him. The senior management team should have made enquiries about B’s problems and discovered what they could have done to ease them. The trial judge had been entitled to form the view that the school’s senior management team were in a position of continuing breach of the employer’s duty of care, and that had caused B’s breakdown in November 1996. The Court of Appeal had accurately expressed the principles that ought to be applied where a complaint was made of psychiatric illness brought about by stress at work.
British Railways Board v. Herrington (1972)*
Significance: the common law duty owed to trespassers
A six-year-old boy was playing with his friends on land adjacent to an electrified railway line. He got through a fence in poor repair and fell onto a live line. The stationmaster had been warned of the condition of the fence and despite his knowledge that children frequented the area, the fence had not been repaired. The House of Lords held that, although the general rule remained that a person trespassed at his own risk, an occupier’s duty was not limited to not harming the trespasser intentionally or recklessly. The occupier owed a duty of common humanity to a trespasser known to be present.
The House of Lords set out three criteria that should be established before a duty of common humanity exists:
- The occupier must have knowledge that trespassers are getting onto his land.
- That a hazard exists that would likely endanger the trespasser.
- The risk is one that would compel a reasonable occupier to take action.
The Herrington decision was subjected to criticism and was referred to the Law Commission, whose report formed the basis of the Occupiers’ Liability Act 1984. Thus, this case is no longer used as an authority for the proposition that a duty is owed to trespassers, since it has effectively been replaced by the 1984 Act.
Caparo Industries Plc. v. Dickman and Others (1990)*
Significance: The nature of the duty of care; establishing when a duty is owed
The “neighbour principle” as set out in Donoghue v. Stevenson (1932) was inevitably too broad and has been refined several times. This case is the most significant recent decision in this area. The case involved the alleged negligent preparation of accounts.
The case established a three-stage test to establish if a duty of care exists between two parties:
¡ the harm suffered by the claimant must be reasonably foreseeable;
¡ there should be sufficient proximity between the claimant and defendant; and
¡ is it fair, just and reasonable to impose a duty?
This last step brings in the concept of policy, in which the courts have to balance the needs of a claimant against imposing excessive liability on a defendant, the problem being of “opening the floodgates” which means creating an indeterminate liability.
A good example within occupational health and safety relates to the issue of “nervous shock” nowadays better known as “post traumatic stress disorder” (PTSD). During the Hillsborough disaster of 1989 a number of football fans were killed or seriously injured due to the admitted negligence of the Chief Constable of South Yorkshire who was responsible for crowd control. There was no doubt that a duty of care was owed to those who sustained physical injury. However, there were many hundreds of others who suffered no physical harm but suffered PTSD as a result of witnessing the horrific sight of individuals being crushed and suffocated. These included fans at the ground, police officers who endeavoured to rescue those being crushed and the friends and relatives of those who died who were not at the ground but became aware of the disaster unfolding through the live TV broadcast.
In this case the number of possible claimants would have been very large and so the courts had to establish some rules to limit the liability of the defendant. The consequence of not limiting liability would cause the insurance system, which ultimately pays the compensation in such cases, to collapse as insurance companies would not be prepared to offer such cover to prospective defendants.
Edwards v. National Coal Board (1949)*
Significance: Definition of ‘Reasonably practicable’
You need to be sure of the exact meaning of this phrase and to be able to distinguish it from other similar phrases which are quite different in interpretation. It appears early on in HSWA in section 2(1).
“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”
Although a very important phrase in HSWA, the Act itself does not contain a definition of the expression. To find its precise meaning you have to refer to case law.
In Edwards v. National Coal Board (1949), a miner was killed when a section of road on which he was working subsided. The section of the road concerned had no timber supports, although other sections were properly supported. Lord Asquith, the judge in the case, said that a balance had to be struck in deciding whether it would have been reasonably practicable to have taken the precaution of providing supports for the section of road which collapsed. The balance was struck by weighing the quantum of risk involved (the danger of collapse and loss of life) against the quantum of sacrifice involved (the cost, time and trouble). If there was a gross disproportion between the two and the risk was insignificant to the cost, there would be no requirement to take the additional precautions. The Coal Board did not present sufficient evidence to demonstrate that the cost was out of all proportion to the risk.
Therefore, to carry out a duty “so far as is reasonably practicable” means that the degree of risk has to be balanced against the time, trouble and cost involved in taking the measures necessary to avoid the risk.
If the measures are so disproportionate to the risk involved that it would be unreasonable to take the measures, then there can be no obligation to take them. The greater the risk the more likely it is that it would be reasonable to go to the expense of taking the measures. In a nutshell, if the consequences and the degree of risk are small and the cost of the measures to reduce the risk is very expensive, it would be unreasonable to incur that cost. The size of the company or its financial resources is not a consideration in arriving at a decision.
