#14676 - Employer's Liability - GDL Tort Law

_______________________________________________________

Two types of employer’s liability:

• Vicarious liability: liability for an employee committed against a fellow worker / member of the public

• Primary liability: liability of the employer for a non-delegable personal duty

Employer’s liability is a big area of tort law because employers are insured, and potentially because there are a lot of accidents in the work place

• Statutory breach: there is no civil remedy available for breach of a statutory duty unless the statute can be interpreted as providing one expressly – thus the employer’s duty of care exists separately from their statutory duty

Primary Liability

A non-delegable duty = a common law duty to employees to see that reasonable care is taken with them. If it is delegated this will not negative primary liability

Wilsons and Clyde Coal

Injury sustained in a mine & claim in negligence against employer. Employer argued that the person in charge was negligent, but they had taken reasonable care in employing the correct person

Held: this was a personal duty and couldn’t be delegated to avoid liability, even if the delegated person is appointed with due care and skill

Established threefold duty:

1. To provide competent staff

2. To provide workers with adequate materials/tools

3. To provide a proper system of work and effective supervision

This revolves around the central premise to take reasonable care of the worker.

This duty is owed to individual employees:

This means that the duty will be to differing standards dependent on the employee’s particular vulnerabilities (see Paris v Stepney Borough Council (above) where it was held that the employee should have been provided with safety goggles because of his partial blindness)

Employer’s knowledge of risks:

Stokes v Guest Keen – physical harm

Mineral oil which eventually caused him to develop cancer. Employer knew of risk & failed to mitigate it

Held: the test is of the reasonable employer taking positive thought for the safety of his workers in light of what he knows or ought to know. Common practice will usually suffice, unless it is obviously bad according to common sense. Greater knowledge of the risks means he but go above the standard precautions.

Baker Refractories (below) – psychiatric harm

Competent Staff

Employer has a duty to employ reasonably competent staff

Scenarios amounting to breach:

• Hiring employees incapable of performing their job

Butler v Fife Coal

Mine injury caused by inexperienced worker appointed to dangerous activities

Held: alongside the statutory duty exists the common law duty to take reasonable care of workers, here breached by employing the incompetent staff member

• Hiring employees who they know or ought to know are practical jokers

Hudson v Ridge Manufacturing

Practical joker employee, whom the employer knew of, threw the claimant onto the floor

Held: the employers were negligent by failing to stop this staff member – so the breach of duty here was both hiring the practical joker, and “failing to remove the source of danger” once appointed

• Hiring employees who bully or sexually harass staff

Harrison v Lawrence Murphy

Sexual harassment & bullying

Held: this was a failure to provide competent staff

Adequate Materials & Equipment

The duty to provide a safe place of work includes a duty to take reasonable care to provide “proper appliances and to maintain them in proper condition” (Smith v Baker per Lord Herschell)

Davie v New Merton Board Mills

C using a faulty tool which had been negligently manufactured, however the employer had bought it from a reputable manufacturer & maintained it

Held: the employer could not reasonably be held liable here; liability lay with the manufacturer of defective goods

Employers Liability (Defective Equipment) Act 1969 (after Davie):

• A defective piece of equipment due to fault of manufacturer will now be attributable to the employer

• This has been interpreted as a breed of vicarious liability, not a breach of the primary duty to take reasonable care

Definition of equipment:

Coltman v Bibby

Ship went down C onboard

Held: the ship was interpreted as a piece of equipment by the courts & the employer was held liable, applying the statute, despite the fact the ship was built negligently

Safe System of Work

• “the physical layout of the job, the sequence in which work is to be carried out, the provision of warnings and notices and the issue of special instructions” Speed v Thomas Swift per Lore Greene

Safety procedures:

McDermid v Nash: an employer’s duty is not just to provide a safe system of work but must also make sure that it is used

Qualcast v Haynes

Experienced moulder dropped molten metal on foot whilst wearing protective footwear

Held: (HL) failure to ensure wearing of safety equipment is not a presumption of negligence, however, this is a factual analysis. Here the experience of the employee & obviousness of risk meant it was not unreasonable

Yorkshire Traction v Walker Searby

Bus driver assaulted by passenger arguing that there should have been a screen partition

Held: whilst common practice is not determinative, and workers’ own ideas about safe systems also so, here the Union’s opinion that screens were unnecessary would have influenced a reasonable employer. The magnitude of the risk was also small.

Coxall v Goodyear Great Britain

C had asthma working for goodyear and continued working despite doctor’s warnings as he loved his job. Evidence that he wouldn’t have moved even if goodyear had offered him another role

Held: the production line itself was safe, but the employer should have been alerted by the doctor’s warnings to his health. One judge argued that they should have sacked him for his own good. Other reasoning centred around the fact they should’ve discussed other options with him once they were aware of the risk

NB: this seems to place a very heavy burden on employers; the claimant wouldn’t have moved even if they had discussed other options

What is ‘safe’ depends on the circumstances:

Thompson v Smiths Ship Repairs

C worked in a noisy shipyard and went deaf, then sued on the basis that ear protection hadn’t been given. Some of the claims stretched back to the 50’s where noise protection was not as well known.

Held: superimposed a reasonable date from when it would have been reasonable to provide ear protection.

Latimer v AEC (above): reasonable precautions may make an unsafe place of work safe

Wilson v Tyneside Cleaning

Held: the duty to provide safe premises extends to third party premises, however there is a lower standard of care required as this is reasonable

• Pearce LJ: if an employer sends an employee off to a respectable private house he will not need to go and inspect it to make sure the carpet doesn’t create a trap

Physical harm

Must be a medically recognised condition:

• Mugha v Reuters didn’t allow RSI to recover

• Pickford v ICI seems to now consider it a recoverable injury, but causation here prevented recovery

Psychiatric harm from stress at work

Walker v Northumberland CC

C was a social worker and dealt with child abuse cases which expanded during the 80’s. The CC didn’t employ extra staff. Walker had a nervous breakdown & recovered, returning to work. He was initially given more assistance but this then dried up. He suffered a subsequent breakdown and sacked.

Held: the court confirmed that the employer’s liability extended to psychiatric harm as there is no logical basis for excluding this (this is an exception from the nervous shock caselaw which has stricter control mechanisms). As the duty is owed to individual employees, the CC should have adapted the system of work to C after the first breakdown

NB: is this fair? Should someone be paid the same as other employees for doing less work because of a particular vulnerability?

Barber v Somerset CC
C was a teacher and after restructuring his workload increased. He suffered stress & depression and had to take 3 weeks off work. After a meeting with management who were unsympathetic he had another breakdown.

Held: (HL) 4 to 1 majority: the employer was under an obligation to adapt the system of work to suit the employee once they were made aware of his vulnerabilities

• Lord Walker: at the very least management should have made some sympathetic enquiries & at least a marginal reduction in workload

• Lord Scott: drew a distinction between physical & psychiatric harm in the workplace and emphasised that employers should be able to assume the reasonable fortitude of their employees, except where they have been make aware of a risk of qualifying psychiatric injury

Baker Refractories

Held: implications of psychiatric harm were reasonably foreseeable here, so much to urge the employer to address the risk.

• per Lady Hale; ‘practical propositions’:

1. No special control mechanisms

2. Psychiatric harm must have been reasonably foreseeable to the employer

3. Foreseeability depends on actual or constructed knowledge & the employer’s knowledge of the individual employee

4. An employer may usually rely on what the employee tells them in regards to their health unless there are good reasons to the contrary

Defences

Consent (rare):

ICI v Shatwell (above): completely going against employer’s instructions

• Lord Pearce: consent only available where there has been a “genuine full agreement, free from any kind of pressure, to assume the risk of loss”

Contributory negligence (common):

Stapley v Gypsym Mines

Roof of mine fell on employee who was acting contra to employer orders who...