#10458 - Injury At Work - Personal Injury and Clinical Negligence

INJURY AT WORK

EMPLOYER’S LIABILITY CLAIM

Structure of Exam Answer:

• Start with common law negligence then consider the regulations

• Analyse evidence in both; explain that the same breaches are relevant for both

Step 1: IDENTIFY DEFENDANT and explain common law duty

• An employer owes its employees a duty to take REASONABLE care for the employee’s safety while at work

• This duty comprises duties to take reasonable steps to provide - Wilsons & Clyde Coal Co v English [1937]

  • Competent staff

  • Adequate plant and equipment

  • A proper system of work and supervision

  • A safe place of work – Latimer v AEC Ltd [1953]

• These duties are non-delegable by the employer

• The duty is owed to each individual employee – Paris v Stepney BC [1951]

1. Duty to provide competent staff

• It covers supervisors and managers as well as co-workers

• The guiding principle is that an employer has to think about the safety and capabilities of the workforce as a whole

• It is an acknowledgement that a careless worker can cause harm to a colleague and that it’s the employer’s responsibility to take steps to prevent this happening

• The duty arises when an employer knows, or ought to know, about a risk a particular worker is posing to other workers – Hudson v Ridge Manufacturing [1957]

• This could be of psychological harm too – Waters v Commission of Police [2002]

• The employee might consider the following in light of this duty:

  • Selection of staff – recruitment

  • Initial AND ongoing training

  • Supervision if necessary

  • Dismissal of employees who continue to pose a risk

2. Duty to provide adequate plant and equipment

• Adequate plant is interpreted broadly – not only heavy machinery, but also embraces basic equipment, such as light tools or even an office chair

• The duty is to provide something which is adequate

• So the duty can be breached in 2 situations:

  • Where employer provides plant/equipment but it is inadequate OR

  • Where employer does not provide all plant/equipment needed for the job

• Employer’s Liability (Defective Equipment) Act 1969 s. 1(1)

  • If employee is injured by a defect caused by a third party, e.g. a manufacturer or supplier, the injury shall be deemed to be also attributable to the negligence of the employer if the employee can establish fault on the part of someone AND causation (fault caused injury)

3. Duty to provide a safe system of work

• A safe system of work tends to dovetail with other duties

• An employer must ensure that the working environment is safe, and that the workforce is enabled to do their jobs without undue risk

• Employer must take reasonable steps to ensure safe system being complied with:

  • Training

  • Supervision

  • Observation

  • Reporting

  • Review of procedures

  • Record keeping

  • Physical layout of job

  • Warnings and precautions

  • Notices – adequacy depends on size and colour

  • Safety equipment

  • Take disciplinary action for non-compliance

4. Duty to provide a safe workplace/premises

• The employer’s premises were not kept in a safe condition because… [EXPLAIN]

• The duty to provide safe premises is to an extent self explanatory

• A workplace must have adequate lighting, ventilation, electrical safeguards, pathways, corridors, signage and all the other routine aspects

• Here there is an overlap with the Occupiers Liability Act 1957 where the occupier owes duty to visitor to take reasonable care for safety where there are dangers due to state of premises

  • Employer = occupier

  • Employee = visitor

  • Employer’s common law duty is more onerous than the statutory duty in 2 respects

  • Employer’s common law duty is non-delegable

    • Under OLA, employer can comply with duty by delegating work to an independent contractor

  • Employer’s common law duty applies regardless of where employees are at work – General Cleaning Contractors v Christmas [1953]

    • OLA only applies to premises of which employer is an occupier

Breach of duty

• The employer fails to meet the standard of a reasonable employer, which causes damage to the claimant (not too remote), taking into account HSE guidance and ACOPs

Step 2: [If relevant] explain vicarious liability

Element 1: The worker must be employee (as opposed to an independent contractor)

• The employee is employed under a contract OF service for just 1 person

• An independent contractor is employed under a contract FOR services to several people

• An employment contract exists if the following 3 conditions are satisfied – Ready-Mixed Concrete v Minister of Pensions

  • Employees agree that for remuneration they will provide their own work and skill in performance of some service for their employer

  • Employees agree, expressly/impliedly, that in the performance of that service they will be subject to another’s control to a sufficient degree

  • The other provisions of the contract are consistent with a contract of service

    • Inconsistent provisions include e.g. where

      • Workers provide own tools

      • Workers hire helpers

      • Employee takes financial risk rather than employer

• If an employee is on secondment who is vicariously liable?

  • The employer entitled to tell employee what to do – Mersey Docks v Coggins [1947]

  • BOTH employers can be vicariously liable for tort of same employee if they are both entitled to tell employee what to do

Element 2: The employee must have committed a tort

Element 3: The employee must act ‘in the course of employment’

• Salmand – an act is in course of employment if it is either a wrongful act authorised by employer or a wrongful and unauthorised mode of carrying out an authorised act

• Acts expressly prohibited by employer

  • Scope - if employer restricts scope of employment, employee not vicariously liable

  • Manner - if employer restricts manner, can still be vicariously liable. If a prohibited act is done to further employer’s business, it is usually ‘in course of employment’ even though it is a prohibited act – Rose v Plenty [1976]

• Intentional torts

  • These are often also criminal acts

  • Salmand definition suggests employer would not be vicariously liable for such acts

  • But there are cases where employer has been found vicariously liable

  • E.g. if it stems from an authorised act it falls within the course of employment – Lloyd v Grace, Smith & Co.

  • E.g. an employer can be vicariously liable for an intentional wrongful act committed purely for employee’s benefit if there is a sufficient connection between the work he had been employed to do and the act in question – Lister v Hesley Hall [2001]

• Frolic cases

  • Many occur when driving and committing a tort while on an unauthorised route

  • Employee acts outside the course of employment – Joel v Morrison (1884)

  • Relevant factors – Hilton v Thomas Burton [1961]

    • The extent of the deviation from authorised route – is it a major departure (new journey) or a minor detour (new route)?

    • The purpose of the departure – if he was still going about employer’s business, will not be on a frolic

  • Stopping for lunch is reasonably incidental to one’s work – Harvey v O’Dell [1958]

Employer’s indemnity

• Employer has common law right to recover full loss from employee – Lister v Romford Ice & Cold Storage [1957]

• But usually a gentlemen’s agreement not to

Step 3: Explain breach of statutory duty

• The injured employee must show that

  • The breach is actionable in a civil court

    • Look at wording of statute – is it the damage of type protected by the statute?

      • Absolute imposes strict liability

      • Qualified – ‘as far as reasonably practicable’

    • If there is no clear indication look for case law on the issue

  • The duty is owed to claimant by defendant

    • Claimant must show he is within the class of people owed a duty – Knapp v Railway Exec [1949]

    • Extent of duty is determined by statute

    • Courts construe wording very strictly

  • The claimant’s loss is within the mischief of the act

    • The damage caused must have been the kind the statute intended to prevent – Gorris v Scott (1874)

  • The defendant is in breach of the duty

    • The claimant must establish breach – Chipcase v Titan

    • Wording is imposed strictly

    • If words are like ‘as far as is reasonably practicable’ are present, claimant must prove employer is at fault like in negligence

  • The breach caused the loss

  • Interrelationship between statutory and common law duties

    • In practice, claimant will often bring concurrent claims for breach of statutory duty AND negligence

    • Where employer has complied with statutory duty, there is still scope for negligence claim- Bux v Slough Metals [1974]

Step 4: Consider the Regulations in turn: Health and Safety at Work Act 1974

1. Management of Health and Safety at Work Regulations 1999 – framework directive

• COMPETENT STAFF

• Employers’ duties

  • Make risk assessments – reg 3

  • Follow principles of accident prevention – reg 4

  • Review health and safety arrangements – reg 5

  • Have appropriate policy on risk surveillance with regard to risk assessments – reg 6

  • Appoint competent persons to assist in compliance with statutory safety provisions. Safety audit must be carried out by accredited auditors – reg 7

  • Provide information for employees on health and safety risks – reg 10

  • Employers’ duties to ‘outside workers’ to provide information on hazards and protective measures – reg 12

  • Provide training to new employees/on exposure to new risks – reg 13

  • Risk assessment for new or expectant mothers – includes pregnant, given birth within last 6 months or breastfeeding – reg 16

  • Protect young workers – those under 18 – reg 19

• Employees’ duties

  • Use equipment in accordance with training – reg 14

  • Inform employer of shortcomings in employers’ system and arrangement – reg 14

• The broad framework of the directive is supplemented...