#17350 - Employers Liability - GDL Tort Law

A non-delegable and personal duty (McDermid v Nash Dredging that the employer has to each employee individually (Paris v Stepney Borough Council)

Wilsons and Clyde Coal v English [1938] – HoL held that there is a general duty owed by an employer to an employee to protect employees

• Lord Wright clarified three sub-headings of this duty:

  • 1) Provision of competent staff

  • 2) Provision of adequate and safe equipment

  • 3) Provision of a safe place of work (can be merged into 2/4)

  • 4) A proper system of adequate supervision.

• This duty exists at common law, independent of statute.

The scope is limited. E.g. An employer does not necessarily owe a duty of care to protect an employee from purely economic or reputational harm (James-Bowen v Commissioner of Police of the Metropolis [2018])

Wilson v Tyneside Window [1958] – these subheading are for convenience, there is a great deal of overlap.

1) Provision of competent staff

• The employer has an obligation to employ reasonably competent fellow employees to work alongside the claimant. Inc monitoring and disciplining the employees.

• Hudson v Ridge Manufacturing [1957] – C injured by fellow employee (a ‘not over-intelligent habitual practical joker) in a prank. Foreman had seen past behaviour and reprimanded employee.

  • Held that there was a breach. Where employer knew of behaviour should have taken greater steps to prevent future actions or dismissed workers.

• Smith v Crossley [1951] – injured fellow employee in one-off practical joke. Not a serial ‘joker’. Employer not liable.

  • However, be liable under vicarious liability as was in the course of employment.

• May be an action against employee himself is possible but likely a waste of time financially.

2) Provision of adequate equipment

• Smith v Baker [1891] per Lord Herschell

  • An employer has a “duty of taking reasonable care to provide proper appliances, and to maintain them in proper condition.”

• This approach was deemed too generous to employer by Parliament:

  • Employers’ Liability (Defective Equipment) Act 1969

    • Employer is liable for injury suffered resulting from defective equipment for the purposes of the employer’s business attributable to a third party.

3) Provision of a safe place of work

• An employer must take reasonable steps to see that the place of work is reasonably safe.

• Latimer v AEC [1953] – factory flooded. Sawdust put down but claimant still slipped. Not liable as the employer had done all that was required of a reasonably competent employer. Objective standard.

• Wilson v Tyneside Window [1958] – Window cleaner injured on third party premises. Employer liable for injuries that occur on third party premises. However the standard of care is lower.

4) A safe system of work with adequate supervision

• This includes instructions, warning, and training.

• Employers must enforce the use of safe equipment

  • Bux v Slough Metals [1974] – stopped using safety goggles as they were fogging up. Employer failed to enforce their use.

• Taking into account that employees often disregard their own safety

  • General Cleaning v Christmas [1958] – window cleaners stopped using ladders instead holding onto the window frames. Liable.

• If employee is an experienced worker who is aware of risks and chooses not to use equipment, then this is relevant

  • Qualcast v Haynes [1959] - employer discharged its duty in this regard by providing protective boots against the obvious danger of splashes of molten metal experienced worker elected not to wear boots. Not liable. May be decided differently today.

• Employees must take reasonable care to use the equipment sensibly

  • Woods v Durable Suites [1953] – despite being told how to do so and provided with barrier cream, C contracted dermatitis. Not liable.

• Also covers psychiatric damage

  • Walker v Northumberland CC [1995] - Council was being inundated with cases of child abuse in the mid-late-1980s. Massively increasing the case-load of individual workers. C took leave due to stress. On return required an assistant, but this was only provided occasionally. Suffered mental breakdown. Sued for loss of earnings.

    • Held employer was liable because they were aware of the problem.

  • Confirmed in HoL in Barber v Somerset CC [2004] – teacher and head of department. Found hours very stressful, raised concerns with employer, ill with stress and depression, took leave. Returned and told employers, and eventually had nervous breakdown. Awarded 100k.

    • Breach occurred when the claimant went back to work and told the senior management team that he had been ill. Ought to have taken steps/inquiries at this stage.

• General practice is not relevant if that practice is negligent

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