#4653 - Primary Employers - GDL Tort Law

The Duty of Care

• Personal and non-delegable: performance can be delegated but not liability for its breach

  • McDermid v Nash Dredging: Employed by parent company but working for subsidiary – parent company tried to delegate liability but this was not allowed

  • Mullaney v Chief Constable of West Midlands Police: Junior probation officer beaten up due to lack of back up – Chief Constable tried to delegate responsibility but was not allowed: Strict rule

• Classic statement of duties in Wilsons and Clyde Coal v English:

1. Duty to provide a safe place of work, including materials and plant

2. Duty to operate a safe system of work, including supervision and instruction; and,

3. Duty to provide an employee with competent fellow employees

• Duties are not distinct: simply different components of the broader duty to take reasonable care

• Lord MacDermott in Winter v Cardiff Rural District Council: one duty, namely to ensure employee’s safety

  • Based on the common law, independent of any statutory duty: compliance with statutory duty is no defence (Bux v Slough Metals)

• At common law: term implied into all contracts of employment that reasonable care will be taken to ensure the health & safety of employees (Johnstone v Bloomsbury AHA) - cannot be excluded (s2(1) UCTA)

• Compulsory insurance to cover such claims: Employers’ Liability (Compulsory Insurance) Act 1969 and Employers’ Liability (Compulsory Insurance) Regulations 1998

To provide a safe place of work

• Smith v Charles Baker and Sons: basic obligation to ensure that the workplace is safe – defects in the premises and hazardous activities taking place on them

• WIlsno v Tyneside Cleaning: duty existed in relation to third party premises eg a window cleaner (although standard would be lower)

• Safety equipment: including necessary safety features, machinery and protective clothing

  • Mulcahy v Ministry of Defence: doesn’t extend to cover soldiers in battle conditions

  • Quakcast v Haynes: employer discharged duty by providing protective boots (old approach)

  • Bux v Slough Metals: Employer had complied with statutory duty to provide safety goggles but still liable as hadn’t encouraged employees to use them. However: if employees refuse to use equipment then employer may not be negligent

  • Yorkshire Traction CO Ltd v Walter Searby: C bus driver claimed that bus company was negligent in failing to put protective screens between drivers and passengers (had screens on some buses) – CA said that company wasn’t negligent (screens reflected light at night so were dangerous and the risk of assault in the area was low)

• Emoloyers’ Liability (Defective Equipment) Act 1969: bolstered the common law – employers ARE liable for injuries sustained due to defective equipment

  • S1(3) defines equipment: ‘any plant and machinery vehicle aircraft and clothing’ : Broad

    • Coltman v Bibby Tankers: a ship

    • Knowles v Liverpool City Council: a flagstone

• Also a duty on employees to use the equipment properly: O’Reilly v Nat. Rail + Tramway Appliances

• Various other health and safety enactments which lay down statutory duties: also potential product liability actions

• Note: Employer is only ever required to take reasonable steps to make premises safe: Latimer v AEC: the cost of the precautions will be considered (sawdust case – C’s lawyer claimed they should have closed the entire factory)

Safe System of Work

• Organisation, number of employees, instructions and warnings, training, supervision (the greater the risk, the more supervision)

• Duty not only to create a safe system but also to operate it (McDermid v Nash Dredging and Reclamation Co Ltd)

• Speed v Thomas Swift and Co: unsafe system of work in operation - Lord Greene defined system of work as ‘the physical layout of the job…the sequence in which work is to be carried out, the provision of warnings and notices, the issue of special instructions’ – training must be reviewed and up to date

• Employees will not always have proper regard to their own safety and so it falls on employer to take ultimate responsibility.

  • General Cleaning Contractors v Christmas: Training:cleaner fell whilst cleaning sash windows

• Duty is to take reasonable care (Latimer v AEC) – not an absolute duty

  • Clifford v Charles Challen and Son Ltd: employer negligent in failing to keep protective substances on the premises and failing to ensure workers used them (here they were discouraged from using it)

    • But contributory negligence: 50% contributory negligence on the part of the claimant

  • Woods v Durable Suites Ltd: not negligent in similar circumstances (encouraged) – Singleton LJ - not up to employer to ‘stand over’ all workmen every moment they are working

• Warnings: Pape v Cumbria County Council

• Fraser v Winchester Health Authority: camping expedition , the employee injured themselves making a cup of tea: employer tried to avoid liability by claiming that it wasn’t in their usual range of duties. Held to be liable: if employee instructed to do it then they are liable

• Personal characteristics of the employee should be taken into account:

  • Paris v Stepney Borough Council: one good eye

  • Withers v Perry Chain Co. only reasonable steps: here there was no breach when employer failed to offer employee with sensitive skin alternative work – there was no such work and injury could onlyb have been avoided with dismissal

Competent Fellow Employees: Proportionate to how dangerous the job it

• Some jobs have statutory checks (e.g. teaching)

• Breach if an incompetent person is employed or required to do a job they are incapable of (Black v Fyfe Coal Ltd)

  • Contrast Hudson v Ridge Manufacturing Company Ltd: habitual practical joker (employer did have primary liability) with Smith v Crossley where Smith debagged C and inserted compressed gas nozzle up his rectum – employer knew nothing about it so there was no primary liability (one off prank)

    • Even where employer has satisfied primary liability, he can still be vicariously liable: Smith v Crossley

• Employer can be liable for bullying and sexual harassment:

  • Harrison v Lawrence Murphy & Co.,, The Chartered Secretary – female employer was harassed over several months (settled out of court)

  • Waters v Commissioner of the Metropolis: female officer reported illegality and was then bullied causing a mental breakdown - employer was in breach

• Work related stress:

  • Stress at work is recoverable so long as the employer knew about it: Walker v Northumberland CC

Breach: reasonable level of protection (Latimer v AEC)

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