employer's liability Flashcards
STANDARD ELEMENTS OF NEGLIGENCE APPLY
1.Duty of care – the relationship of employer-employee
gives rise to an established duty of care;
2. Breach of duty – the claimant employee must show that
the defendant employer failed to exercise reasonable
care for the safety of the employee; and
3.Causation of damage – the employer’s breach of duty
must have caused the employee’s injury and the damage
must not be too remote.
scope of employer’s duty
a.Safe Plant and Equipment
The employer must take reasonable care to provide safe machinery and equipment, including protective clothing and equipment when required.
b.Safe Place ofWork
The employer must take reasonable care to provide a safe place of work.
factors to be considered
1. the nature of the place, and the potential risks involved
2. work to be carried out
3. the experirence of employee
4. degree of control or suvervision the employer could reasonably exercies.
note, protecting staff from passive smoking is also included.
c.Competent Fellow Staff
The employer must take reasonable care to ensure that fellow staff with whom the employee works are competent (so that they do not pose a danger to the employee).
The employer may have breached this aspect of the duty of care when an employee is injured by a fellow employee who has not been adequately trained to operate the equipment on which they are both working. Also, an employ-er who is aware that an employee regularly engages in jokes or horseplay, but fails to take action, may be in breach if this conduct causes injury to a fellow employee.
d.Safe System of Work
The employer’s duty of care extends to devising a safe system of work. This includes providing adequate supervision to ensure the implementation and enforcement of such system and conducting appropriate risk assessments.
Safe procedures must be observed by the employees.
e.Psychiatric Harm from Stress
The requirement for a safe system of work also covers situations in which an employee sufers psychiatric harm caused by stress at work, as long as it is reasonably foreseeable that the employee is at risk of harm caused by stress. The employer’s duty then requires taking reasonable steps to
respond to that risk.
The Nature of the Employer’s Duty –
Nondelegable
This means that, although the task can be delegated, the duty to take reasonable care cannot. Not only must employers take reasonable care in their actions directly, but they must also see that reasonable care is taken by others. If the person to whom a task is delegated fails to take such reason-able care, the employer’s duty is breached.
BREACH OF DUTY – THE STANDARD OF THE REASONABLE EMPLOYER
In assessing whether the employer met the standard of reasonable care, the court will consider the magnitude of risk created by the employer’s ac-tivity and the practicability of taking precautions against that risk
STANDARD OF CARE COMMON PRACTICE
The common practice of other employers in the same field is relevant in determining whether the defendant employer has fallen below the applicable standard of care, but is not determinative.
STANDARD OF CARE Employee’s Individual Circumstances
The employer’s duty is owed to each employee individually. So, the **individual circumstances **of each employee are relevant to the precautions which the employer needs to take in order to meet the standard of reasonable care.
EXAMPLE
The employer knows that an individual employee engaged on engineering work is blind in one eye, so that an injury to the employee’s other eye would be particularly serious. The exercise of reasonable care may require the employer to provide safety goggles for this employee, even though
goggles would not usually be provided to fully sighted employees.
STANDARD OF CARE
Date of Knowledge of Risk
When a claim is brought in respect of an industrial disease, it will be relevant to consider the date at which the risk of the disease became known in the industry in question. An employer cannot reasonably be expected to take precautions against a risk before the date it becomes known.
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STANDARD OF CARE
Latent Defects in Equipment
1.An employer who had exercised reasonable care in purchasing the equipment from a reputable
supplier would not be in breach of duty, and the injured employee would need instead to pursue a claim against the person who was at fault (such as the manufacturer of the faulty equipment). This would pose a problem if the manufacturer could not be traced, had ceased to trade, or was uninsured.
2. This problem of latent defects in equipment has been addressed by the Employer’s Liability (Defective Equipment) Act 1969, which applies where an employee is injured in the
course of employment by defective equipment provided by their employer. Provided that the defect is attributable to fault on the part of some third party (whether identifed or not), the employer is also deemed to have been negligent.
Note
that the injured employee must still establish that** there was a defect in the equipment and that the defect was caused by fault on the part of someone**. Provided the employee can do this, the employee can prove breach of duty on the part of the employer.
CAUSATION OF DAMAGE
*Causation in fact: ‘But for’ the defendant’s breach of duty, the harm would not have occurred.
*No intervening acts: No acts intervened to break the chain of causation between the employer’s breach of duty and the employee’s harm.
*Damage not too remote: The harm sufered was reasonably foreseeable and so not too remote.
DEFENSE
1.VoluntaryAssumption of Risk
The employee must have fully appreciated and voluntarily consented to the actual risk.
2. Contributory Negligence
