JUMP TO: EMPLOYEE | STATUTORY DUTY | PRIMARY LIABILITY | BREACH | CAUSATION | REMOTENESS | DEFENCES | REVISE | TEST
Employer’s liability is a huge area of negligence law. It is not a separate area of law but is governed by the standard rules of negligence. It is different from vicarious liability in that it is a direct liability owed by the employer to the employee for an act of negligence by the employer.
The claimant must have been an employee at the time of the injury. This is the same test as for vicarious liability from Ready Mix Concrete v Minister of Pensions (1968) (HC). The Economic Reality Test takes into consideration several factors to establish the overall nature of the relationship between the two parties.
In that case a lorry driver who was responsible for hiring, maintaining and insuring his lorry was an independent contractor despite the fact that the company stipulated what colour the lorry had to be and what uniform he had to wear.
The test was further developed in Warner Holidays v Secretary of State for Social Services (1983). Three musicians were found to be employees of a holiday resort as they were employed for four months for a set fee. McNeil J set out a list of factors that the court should consider; level of control, provision of tools and equipment, salary, taxes, sick pay, bearing the risk of profit and loss, residual control, control over work hours, ability to do other work, how the parties describe their relationship and mutuality of obligations. No one of these will be conclusive but they can all be considered.
Employers cannot avoid their common law duty simply by fulfilling a statutory duty (Bux v Slough Metals (1973) (CoA)).
An employee had been injured when molten metal splashed into his eye. The employer had provided protective googles, which satisfied their statutory duty, but the court found that their common law duty went beyond this. The employer should have required employees to use the protective equipment, they were therefore liable in common law for the injury caused to the claimant.
DUTY OF CARE (PRIMARY LIABILITY)
Employers have a duty to take reasonable care for the safety of their employees. This duty is non-delegable (Wilsons and Clyde Coal v English (1938) (HoL)). A miner was injured when equipment was incorrectly used whilst he was travelling through the pit. Even though the employer had specifically employed a qualified manager to operate the equipment they were still held liable because they could not delegate their duty to the manager. By breaching his duty the equipment manager had breached the employer’s duty.
Lord Wright, in the same case, described an employer’s duty of care as comprising;
a duty to provide a safe place of work (including equipment),
a duty to operate a safe system of work (including supervision and instruction),
a duty to provide employees with competent colleagues.
These are all elements of the overall duty to ensure an employee’s safety. They are not the only elements but most cases fall into one or more of these categories.
For an example of a case that falls outside of these three categories see Johnstone v Bloomsbury Health Authority (1992) (CoA) in which a doctor claimed that his contract of work for 88 hours a week was a breach of the employer’s duty. The court agreed, it was a breach of the duty to keep employees healthy and safe. It did not matter that the number of hours had been agreed in the contract.
SAFE PLACE OF WORK
An employer has a duty to provide a safe place of work, this includes all equipment and machinery and a duty to maintain equipment and provide instructions on how to use it (Yorkshire Traction Co v Walter Searby (2003) (CoA)).
A bus driver was stabbed by a passenger. He claimed that the bus company were negligent because they had not installed protective screens between the driver and the public. He claimed that the bus company was negligent because they had not installed protective screens. However, the company argued that when they had done so in other buses the drivers had complained, , and even removed them, because at night they reflected lights and were dangerous. Based on this and the low risk of a passenger stabbing a driver the court found that the company was not liable.
Equipment is defined by statute (Employer’s Liability (Defective Equipment) Act 1969) as ‘any plant and machinery, vehicle, aircraft or clothing’. Common law has broadened that definition to almost anything used by the employee in the course of their work. In Coltman v Bibby Tankers (The Derbyshire) (1988) (HoL) this included the ship itself, and in Knowles v Liverpool City Council (1993) (HoL) included a paving stone that was being laid by the claimant.
This is true even if the defect in the equipment was unknown to the employer and had been caused (in part or wholly) by a third party (i.e. the manufacturer) (s.1(1) Employer’s Liability (Defective Equipment) Act 1969). This is because the employee has been compelled to use the equipment by the employer.
Employers must provide suitable equipment but if employees refuse to use it or remove it then the employer may not be liable (McWilliams v Sir William Arrol (1962) (HoL)). This will generally be dealt with as a matter of whether the claimant broke the chain of causation by not using the equipment (see below).
SAFE SYSTEM OF WORK
An employer must provide a safe system of work. This includes; the physical layout of the job, the sequence in which work is to be carried out, the provision of warnings and notices and the giving of any special instructions.
The employer must also ensure that a safe system of work is properly implemented.
For example, in Pape v Cumbria County Council (1992) (HC) a cleaner contracted dermatitis from the cleaning products she had been using. The council had provided rubber gloves but had not instructed her to wear them or properly informed her of the risks of not wearing them. They were liable for her injuries.
EMPLOYEE’S REGARD FOR THEIR OWN SAFETY
The employer must take into account when devising any system that the employee may not always have enough regard for their own safety (General Cleaning Contractors v Christmas (1953) (HoL)).
A window cleaner fell out of a window when perching on the edge trying to keep the window open with his foot. Even though the employee had clearly not taken responsibility for his own safety the employer was liable because they had not created safety instructions or a safe system of work for the employee to follow.
However, there are limits to what can be expected of an employer. In Woods v Durable Suites (1953) (CoA) employees were provided with gloves and barrier cream to prevent dermatitis caused by contact with a solvent. There were notices telling them to use the cream and the employer instructed all employees to use the protective equipment. Woods contracted dermatitis and sued his employer, arguing that the foreman should have overseen each employee to ensure compliance. The court disagreed, they held that the employer’s precautions had been satisfactory and it was not the employer’s role to stand behind each employee and force them to do what they knew they should be doing anyway.
In Clifford v Charles H Challen (1951) (CoA) the fact that the foreman had encouraged employees not to use safety equipment was a breach.
SPECIFIC TO EMPLOYEES
Any precautions taken should take into account the personal characteristics of the employee (Paris v Stepney Borough Council (1951) (HoL)).
Paris was blind in one eye but was not provided with protective goggles. A piece of metal damaged his good eye in a work related accident. The fact that Paris was more vulnerable to eye injury should have been taken into account by the employer when implementing a safe system of work.
However, this is qualified. In Withers v Perry Chain (1961) (CoA) the employee suffered from dermatitis which was aggravated by contact with substances in the factory where she worked. Her employer tried to find her different jobs within the factory that would be better but they all made her condition worse. Despite this she continued to work there. When she sued the company for the harm caused by her condition the court refused to find the employer liable. They had done all they could to fulfil their duty of care, the only way that they could have avoided the risk of harm to her was by making her redundant. As she had continued to work at the factory she had accepted the risk of harm to herself.
COMPETENT FELLOW EMPLOYEES
The negligence of a fellow employee could be a case of vicarious liability, or a breach of the employer’s duty to provide an employee with competent fellow employees. If someone is hired who is incompetent or unsuitable for the specific job then this will be a breach of that duty (Black v Fife Coal (1912) (Scottish Court of Session)).
A mining disaster that killed the claimant was found to have been caused by a negligent supervisor. The defendant was held liable for failing to employ a competent supervisor.
In Hudson v Ridge Manufacturing Company (1957) an employee’s practical joke led to a broken wrist when he tackled the claimant to the ground. This employee was a serial practical joker, a fact known by the employer, who had reprimanded him but gone no further. The failure to stop behaviour that risked injury to employees on a regular basis was a breach of duty.
However, in Smith v Crossley Bros (1951) two colleagues removed the claimant’s trousers and inserted a hose up his bottom which expelled compressed air causing serious injury. This one-off ‘practical joke’ was not sufficient to breach the duty to provide competent colleagues even though the incident itself was serious.However, the claimant did have a case against the employer under vicarious liability.
This also applies to people who bully or harass their colleagues. If the employer knows about the behaviour they may be liable (Harrison v Lawrence Murphy & Co (1998)).
THIRD PARTY PREMISES
An employer’s duty does not end if their employee is working at the premises of a third party (McDermid v Nash Dredging (1986) (HoL)).
McDermid was employed by Nash and temporarily sent to work as a deckhand on a ship owned by a third party (the defendant’s parent company). The captain, who was not employed by the defendant, caused injury to McDermid. Even though the defendant did not employ the captain they were responsible for the safety of their employee and in that they had failed. They were not able to delegate the responsibility to the captain.
STANDARD OF CARE
However, the standard of care expected from the employer for an employee working at a third party premises will vary from case to case depending on the facts and the reduced level of control that an employer has will be taken into consideration (Wilson v Tyneside Cleaning Co (1958) (CoA)). Wilson was sent to clean the windows of a property and told not to clean any that were too difficult or dangerous to reach. He injured himself whilst cleaning a difficult window and tried to sue his employers. His case was dismissed; he was an experienced window cleaner and had specifically been told to avoid risky windows. The court gave the example of a plumber being called to a respectable property. The employer could not be expected to visit the house to check whether the carpet was a trip hazard.
BREACH OF DUTY
As with all negligence cases an employer is only expected to behave as the reasonable employer would and take reasonable steps to keep their employees safe (Latimer v AEC (1953) (HoL)).
The claimant, who was employed by the defendant, slipped over on a wet floor sustaining an injury. The floor had been covered with sawdust to reduce the risk of this happening. The only way to eliminate the risk entirely would have been to shut the factory, this was deemed an expense out of proportion to the risk and therefore unreasonable.
In general the ‘but for’ test is used (McWilliams v Sir William Arrol (1962) (HoL)).
The defendant had not provided the employee with a harness to wear whilst working and he fell and died. The court applied the ‘but for’ test and found that the employer was not liable as there was a lot of evidence to prove that the employee never wore a harness and would not have worn it if it had been provided. Therefore, ‘but for’ the defendant’s negligence the employee would still have died and their negligence did not cause the harm.
The actions of an employee (such as refusing to use protective equipment) can act as a novus actus interveniens but it is more likely that the court will take this into account when considering contributory negligence.
As with any other area of negligence in order for the loss to be recoverable it must not be too remote from the defendant’s breach.
To be recoverable the loss must be of a kind reasonably foreseeable (The Wagon Mound (No 1) (1961) (HoL)).
To be recoverable the loss must be of a reasonably foreseeable kind (The Wagon Mound (No 1) (1961) (HoL)). The defendants negligently caused an oil spill in Sydney Harbour. A boat, docked at the claimant’s wharf, was undergoing repairs. Sparks from a blow torch landed on debris in the oil spill and caused a fire that damaged the wharf. The court held that the claimant could not recover losses as it was too remote. Damage such as pollution from the oil spill was foreseeable, but as it was shown that igniting a thin film of oil on water is very difficult the damage caused by the fire was not.
Psychiatric damage is also recognised as a recoverable injury in employment cases (Walker v Northumberland County Council (1995) (HC)). The claimant suffered a mental breakdown because of the huge pressure put on him at work and the lack of any support from his employer.
However, the loss must be of a recognised kind. For example, in Mughal v Reuters (1993) (HC) the claimant could not claim for Repetitive Strain Injury as at the time this was not a condition recognised by the medical profession. Now it would be (Pickford v ICI (1998) (HoL)).
The employer may be able to use the defence of volenti non fit injuria if the employee consented to the risk. However, the courts are wary of this defence in an employment context as it is often difficult for employees to say no without being at risk of losing their job.
In Smith v Charles Baker & Sons (1891) (HoL) the claimant was working on building a railway when a crane dropped a rock on him. Previously the claimant and his colleague had complained about the risk of rocks being carried above their heads. He was aware of the risk and continued to work despite this but that did not mean that he had voluntarily consented to it because as an employee it was difficult for him to avoid the risk.
For the defence to work there would have to be evidence of agreement of consent to the risk by the claimant, free from any pressure. It will be difficult for an employer to prove consent unless the employee acts expressly against the employer’s instructions (ICI v Shatwell (1965) (HoL)).
The claimants had injured themselves using fuses that were too short when setting off explosives in a quarry. The employer was not liable for the harm caused as the injured parties had acted contrary to their express instructions.
An employee can be found to have contributed to the negligence by their own actions. This is governed by the Law Reform (Contributory Negligence) Act 1945. For example, in Barrett v Ministry of Defence (1995) (CoA) a soldier died when he choked on his own vomit. The MOD had a responsibility to ensure his safety but he was 40% liable because his drunkenness had contributed to his death.