Employers Duty Of Care

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Common Law

In an article of this length it would be impossible to deal with the entire field of common law. Therefore, the focus is very narrow and purely related to an employer's common law duty of care towards their employees. Additionally, only the civil law implications of common law are considered.

To be successful in a tort of negligence action the following has to be established:

· That the defendant owed the claimant a duty of care.

· That the duty of care was breached through negligence.

· That loss resulted from the breach of the duty of care.

Negligence merely means failing to act in a way a reasonable person would have acted under the circumstances, or acting in a way a reasonable person would not have acted in under the circumstances.

The burden of proof in civil cases rests with the claimant on the balance of probabilities. However, there are two main ways in which the claimant can gain assistance in discharging this burden of proof. Namely:

· Assistance by statute. Under the Civil Evidence Act 1968, where the defendant has been convicted of criminal proceedings that conviction is admissible in civil proceedings.

· Assistance at common law. Under the doctrine of res ipsa loquitur, or the thing speaks for itself, the evidential burden of proof is cast from the claimant upon the defendant. However, three conditions must apply:

· The accident could not have occurred without negligence.

· The defendant was in control of the situation.

· There is an absence of an alternative explanation by the defendant.

The Duty of Care

In Wilsons and Clyde Coal Co Ltd v English (1938), the four main elements of an employers’ duty towards their employees were identified as being the:

· Provision and maintenance of a safe place of work;

· Provision and maintenance of a safe system of work;

· Provision and maintenance of safe plant and appliances;

· Provision of competent fellow employees.

In addition, it was made clear, that while an employer may delegate some of these functions to nominated employees, the employer cannot delegate legal responsibility.

The duty of care owed by employers to their employees has been extended over the years through case-law. Examples being:

Safe Place of Work

· Galt v British Railways Board (1983). The claimant suffered shock and consequent heart problems when the train he was driving nearly hit two men working by the lines. The defendant was held to be liable for not providing a lookout.

· Paine v Colne Valley Electricity Supply Company Ltd (1938) found the employer liable after an employee was electrocuted because a kiosk had not been properly insulated.

· Latimer v AEC Ltd (1953) found the employer not liable after a heavy storm flooded the factory floor and a mixture of oil and water made the floor slippery. The employer put down sand and sawdust, but did not have enough to treat the whole of the factory in this way. As a result the claimant was injured. It was held that the risk was not grave enough to warrant closing down the factory.

Safe System of Work

· Ross v Tennant Caledonian Breweries Ltd (1983) demonstrated that the fact that a system has been in place for a period of time without accidents occurring, is not enough to demonstrate that it is a safe system.

· Bux v Slough Metal Ltd (1974) held that the employer had failed to provide a reasonably safe system of work by failing to give the employee the necessary instructions to wear the goggles provided and to enforce the wearing of them through supervision. However, in Qualcast (Wolverhampton) Ltd v Haynes (1959) an employee who did not wear the protective clothing which was available failed to gain compensation as they had chosen not to make use of it at their own risk. In Finch v Telegraph Construction and Maintenance Company (1949) the employer was found liable for the eye injury to the claimant, because although they had provided goggles they had not told the employee where to find them.

· In Walker v Northumberland County Council (1994) the duty to provide a safe system of work was extended beyond providing a system that took reasonable measure to protect employees from physical injury to protect employees from psychological injury as well.

Safe Plant and Appliances

· Bradford v Robinson Rentals (1967) held that it was foreseeable that a vehicle driver would suffer frostbite in an unheated van while driving a long distance in extremely cold weather. As the van also had cracked windows, it was held that the employer had failed to provide suitable plant.

· Davie v New Merton Board Mills Ltd (1959) led to the Employers' Liability (Defective Equipment) Act 1969. The claimant lost his claim against his employer following an injury from a tool with a hidden defect. It was held that the employer was not negligent. The Act changed matters by providing that if an employee is injured in the course of his employment as a consequence of a defect in equipment, provided by his employer for use in connection with his business, then that defect will be attributable to the negligence of the employer. However, any damages paid by the employer can then be recovered from the manufacturer or other responsible party. Knowles v Liverpool City Council(1993) found that a defective flagstone used by the "flagger" employed by the highway authority constituted equipment under the Act and the House of Lords refused to draw a distinction between equipment and materials.

· Taylor v Rover Car Company Ltd (1966) held that where an employer is aware of any defect in tools which have been purchased from outside the company, he should withdraw them from circulation.

· Williams v Birmingham Battery and Metal Company (1899) held the employer liable for failing to provide the necessary equipment, Machray v Stewarts and Lloyds Ltd (1964) for providing insufficient equipment and Bowater v Rowley Regis Corporation (1944) for providing defective equipment.

· Barkway v South Wales Transport Company (1950) held that an employer must have a proper and adequate system of inspection and testing in order that defects can be identified and reported. Whereas, Monaghan v Rhodes and Son (1920) held that such defects must then be remedied.

· Pearce v Round Oak Steel Works Ltd (1969) ruled that before second-hand machinery is put into use it must be checked to ensure that it is serviceable.

· Close v Steel Company of Wales (1962) found that failure to erect suitable and effective guards around unfenced machinery liable to eject parts or material, may constitute negligence at common law irrespective of any liability for a breach of relevant regulations.

Competent Fellow Employees

· Hudson v Ridge Manufacturing Company Ltd (1957) held that where an employer is aware that the conduct of an employee gives rise to danger due to sky-larking, the employer is under an obligation to take effective steps to remedy the situation. However, if the employer is unaware that practical jokes are being played, as in Smith v Crossley Brothers (1971), he will not be found liable as such acts fall outside of the scope of the employer's business.

· Butler v Fife Coal Company (1912) held that where an employer appoints an inexperienced person to carry out highly dangerous activities, then the employer may be liable if, as a result of lack of experience, another employee is injured.

If an employer knows, or if a reasonable employer could have foreseen, that an individual employee is at greater risk than an average employee, then the employer’s duty of care towards that individual employee is correspondingly greater. In Byers v Head Wrightson and Co Ltd (1961) it was held that greater precautions are necessary when dealing with young or inexperienced workers. Whereas, in Paris v Stepney Borough Council (1951) it was held that the Council had a greater duty of care towards the remaining eye of the one-eyed man.

With regard to whether the duty of care has been breached, a key test is whether the injury suffered was foreseeable? The next test being what would a reasonable person have been expected to have done to prevent this foreseeable injury? What is deemed to be reasonable depending upon the likelihood of the injury, the possible severity and the cost of doing more. Often the test of current good practice can be applied, providing that practice does not involve obvious folly.

The employer’s duty of care extends to cover the employee whilst they are “within the course of their employment” and “acting as a reasonable employee would act”. Tests for course of employment involve:

· The time of the accident.

· The place the accident occurred.

· What was the employee employed to do.

· Did the employer derive benefit from the employee's actions.

· Did an express prohibition apply.

Defences

Defences often consider whether the injury was foreseeable and whether the defendant did all that a reasonable person could have been expected to have done to prevent such a foreseeable injury.

Other defences involve sole fault of the employee, the fact that it was an inevitable accident, that the action was carried out under statutory authority, and the necessity to allow a lesser injury to prevent a greater injury.

Volenti non fit injuria, roughly translated as the injured person having volunteered to place themselves at risk, is a defence which the courts are reluctant to accept. When they do accept it, the following tests apply:

· Lack of coercion.

· A specific risk was involved.

· Full knowledge.

In Smith v Baker and Sons (1891) it was held that mere knowledge of the risk was not enough, it had to be shown that the claimant had consented to the particular thing being done which would involve the risk and had consented to take that risk upon himself.

The Law Reform (Contributory Negligence) Act 1945 provides that where injury is caused by two or more persons, the court must decide how much each person is to blame. One of the persons involved may be held to be the injured employee.

The basic limitations period under the Limitations Act 1980 is three years from either the date on which the cause of action accrued or the date of the claimant's knowledge whichever is the later. However, the courts have wide discretion and can disregard this time limit and permit actions to proceed.