Employer's Liability

Question 1

Employer’s common law duty

Answer 1

An employer cannot delegate its performance to someone else whom it reasonably believed to be competent to perform it. NON-DELEGABLE DUTY. They must take reasonable steps to provide:
1) Competent staff
2) Adequate material
3) A proper system of work and supervision
4) Take reasonable steps to provide a safe place of work

Question 2

Employer’s common law duty - Competent Staff

Answer 2

Will not rise just because a worker is incompetent. It arises where an employer knows or ought to know about the risk of a particular worker is posing to fellow workers. E.g selection of staff, provision of training and provision of supervision. The employer would either know about this incompetence or ought reasonably to know about it

Question 3

Employer’s common law duty - Provide adequate materials

Answer 3

Duty also requires an employer to take reasonable steps to ensure that it is complied with such as:
1) Provide adequate training for your employees in the operation of the new system
2) Ensure the employees are supervised at least at the outset
3) Monitor the operation of the system to ensure it is being fully complied with
4) Take disciplinary action against any employee who fails to comply with the system

Question 4

Employer’s common law duty - Provide adequate materials - Stress at work

Answer 4

1) The threshold question to determine whether a duty would arise was whether injury to health through stress at work was reasonable foreseeable
2) In deciding this Q the court should consider first the nature and extent of the work done by the employee
3) Signs from the employee himself
4) An employer was generally entitled to assume an employee was up to the normal pressures of the job and was entitled to take what an employee told it at face value
5) The control mechanisms which apply to other claims for psychiatric harm have no role to play in claims for stress at work

Question 5

Employer’s common law duty - Safe Workplace

Answer 5

This applies regardless for where the employees are at work. The employer has to assess premises to which his employees are sent for dangers and then if such dangers are found devise and implement a system of work so as to eradicate or minimise those dangers

Question 6

Breach of duty

Answer 6

An employer will be in breach of its duty if it fails to meet the standard of care to be expected of a reasonable employer in their position. Duty owed to each individual employee. Court will look at all circumstances of the case including magnitude of foreseeable risk and cost and practicality of precautions.

Question 7

Causation

Answer 7

Issues of causation such as novus actus interveniens and remoteness must be considered - apply usual tests

Question 8

Defences - Volenti (consent)

Answer 8

Rare for an employer to be able to successfully raise this due to the difficulty of showing that the employee freely consented to run the risk of injury

Question 9

Defences - Contributory Negligence

Answer 9

Courts make allowances for employees working in noisy conditions doing repetitive work. - Courts will be slower to find contributory negligence for these workers

Question 10

Statutory Duty

Answer 10

Provisions will remain relevant when assessing breach of duty. When determining what precautions an employer ought to take precautions which are required by statutory health and safety regulations are likely to be regarded as a guide to the standard which a reasonable employer ought to meet