#2291 - Employer Personal Liability - Tort Law

Employer’s Personal Liability

The old state of the law

• “Common Employment” Doctrine

  • An employer could defeat any claim against them if

    • Injury was caused by action of a fellow employee to C

    • Employer had taken reasonable care in choosing the employee in question.

  • Basically, the employer had delegated this duty of health and safety at Law to employee

    • So injured C could only claim against fellow employee

      • Which would often not be practical and worthless

Circumventing the Doctrine (and eventually abolishing it)

• This doctrine was circumvented in 20^th Century by making duty at Law “non-delegable”

  • Wilson and Clyde Coal Co v English [1938]:

    • Lord Macmillan:

      • E has duty to provide safe system of work

        • A may discharge it on E’s behalf

        • But this doesn’t stop it being E’s duty

          • And he can’t escape liability by pointing out he has employed a competent agent.

            • If E’s duty not performed, he is liable, no matter how competent agent employed to perform it was.

    • Lord Wright:

      • Risk confusion by talking of duties that can and cannot be delegated

        • Have to ask: “What is the extent of liability that can attach itself to an employer?”

          • Such a duty is the employer’s duty, whether he performs itself or gets others to do it for him

            • Failure to perform such a duty is an employer’s personal negligence.

• Nature of Duty Owed by Employers to Employees

  • Competent Staff

    • If E doesn’t train staff properly/ hires disreputable people

    • Or takes reasonable care to stop any careless behaviour/ “practical jokes” or sustained bullying etc.

      • Then E can be personally liable if employee injures another.

  • Provision of adequate plant and equipment, and safe place to work

    • Davie v New Merton Board Mills [1959]: X injured when using tool provided by E which had been bought from reputable employer, latent defect in tool reasonable inspection could not have found.

      • Viscount Simonds: E had taken reasonable steps – can’t be held liable otherwise anyone employing another and providing with tools do so at his peril.

    • Reversed by Employer’s Liability (Defective Equipment) Act 1969

      • S.1: where employee injured during course of employment in consequence of defect in equipment

        • Provided by employer for employer’s business

        • Defect due to fault of third party

          • Injury attributed to fault of the employer

      • Needs to show

        • Defect in equipment caused accident

        • Defect, on balance of probabilities, was caused by some fault in manufacture

      • Contributory Negligence still applies

      • Giliker: clearly set up to make it easier for employees to sue

        • Means can sue employer rather than manufacturer who might be harder to find

          • Is strict liability on the employer.

  • Provision of safe system of work

    • Employers must take reasonable steps to organise, supervise, give proper instruction, supervision and provision of facilities to employees, and check all practises are adhered to.

    • McGhee v National Coal Board [1973]:

      • No washing facilities available – so no reasonable steps taken to provide such facilities. Hence liable when D contracted dermatitis.

Modern Scope of personal liability

• Duty of care within this field = special

  • Giliker: not a duty of care per se

    • More a duty to ensure reasonable care is taken within their business and amongst employees

      • But this duty is owed to the individual employee

        • Paris v Stepney BC [1951]: Provision of safety goggles not common practise

          • But since employee was one eyed, magnitude of risk of total blindness meant that employer breached duty to this employee by not providing safety goggles

            • Even though they might not have done if it had been a two eyed employee.

      • Employee must go on to prove the normal elements of negligence, e.g. breach

• Giliker: Case law generally favours employees over employer

  • McDermid v Nash Dredging Co [1987]: C employed by D to untie ropes under instruction for dredger. X, captain of the ship, was an employee of S, but was in charge at the time. C was untying the ropes when X suddenly moved off without waiting for C’s signal that the ropes were safely stored. A rope snaked around C’s leg, and caused him such damage that he had to have it amputated.

  • Lord Hailsham

    • D cannot dispute that duty to provide and devise safe system of work is non-delegable

      • If it is not performed

        • Then employer is liable no matter whether he delegates its operation to an employee or not.

  • Lord Brandon

    • Trial judge was wrong to say that X was a servant of D because he was actually a servant of S, even if he was in command.

      • What you have to look at is that fact D cannot delegate the duty to their own employees to provide a safe system of work and ensure its operation

        • Because X failed to discharge this system that he had devised, D is liable personally, not vicariously.

        • Doesn’t matter that X not servant of D

          • D still has the duty to provide and devise safe system of work.

• Psychiatric Injury

  • Sutherland v Hatton: H = teacher at Comp, had begun to become stressed and not cope, but had not complained to employers. Had subsequent breakdown.

    • Hale LJ:

      • Where harm reasonably foreseeable product of specific breaches of contractual duty of care between E and C

      • Then C can claim

        • However, E can legally assume C can cope with what is going on at work unless there is evidence to the contrary

        • And can take at face value what C says about his mental state and ability to cope. (e.g. “I’m fine” = I am fine – no further inquiry needed)

  • Barber v Somerset Council [2002]: B = teacher at Comp, had become stressed by work, taken 3 weeks off with GP indicating owing to stress, and B had also said in meetings before summer holidays that was struggling to cope with workload. In November, suffered nervous breakdown.

    • Lord Walker:

      • Overall test =

        • Conduct of reasonable and prudent employer in the light of what he ought to know

        • Means he must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does;

          • and must balance against probable effectiveness of precautions that...