Employer's Primary Liability

Question 1

What is an employer’s general duty to employees?

Answer 1

Duty of care to take reasonable precaution to ensure employees’ safety at work, comprises 4 limbs:
1. Safe and competent employees
2. Safe and proper plant / equipment
3. Safe place of work
4. Safe systems of work

Question 2

What is the duty to have safe employees?

Answer 2

• Duty to hire competent employees who work safely (i.e breach of duty by continuing employment of person who consistently pranked fellow employees for 4 years).
• Employer must have actual or constructive knowledge of the risk employee poses to others
• Must not employ or require an incompetent person to do certain tasks

Question 3

What is the duty to have safe plant and equipment?

Answer 3

• Employer owes employees a duty to provide and maintain safe machinery, equipment and protective clothing.
• Providing equipment without insisting employees use it may be sufficient in some cases but not in others (depends on calculus of risk).

Question 4

What is the duty to provide safe place of work?

Answer 4

• Premises must be safe even if the employer does not own or occupy them; however, what is expected in respect of a 3rd party premises is less.
• Court will consider place, nature of building, employee’s experience, degree of control and employer’s knowledge of premises.

Question 5

What is the duty to provide a safe system of work?

Answer 5

Includes physical layout, setting, sequence and process of work, provison of warnings, notices, training and instructions.
* Employers are under a duty to go to the work site and assess the risk, plan the system of work and take steps to ensure the safe system is complied with.
* For compliance, whether instruction or insistence is sufficient will depend on the calculus of risk.
* If delegating the duty, must ensure it is delegated to someone who will actually encourage compliance.

Question 6

How does the volenti defence operate in the context of employment?

Answer 6

Judges are skeptical of allowing the volenti defence to operate in this context because employees do not want to be disciplined or lose their job. There must be genuine and full agreement, free from any pressure, to assume the risk.