Employers primary liability

Question 1

What is employers primary liability?

Answer 1

• law of negligence being applied to the employer / employee relationship.
• a duty of care on employers to take reasonable care for the safety of their employees.

Question 2

Does primary liability concern independent contractors?

Answer 2

• it is only owed by employers to employees
• a duty might still be owed by a business to an independent contractor - but in general the level of protection to actual employees is higher

Question 3

What is an important feature of employers primary liability?

Answer 3

It is personal and non-delegable

• regardless of who the employer uses to carry out tasks, the ultimate responsibility for the safety of the employee rests with the employer – he can delegate performance of the duty, but not liability for its breach.
• they are directly liable

Question 4

What are 4 main obligations within an employer’s duty? (Wilsons and Clyde Coal Co Ltd v English) Note - there are others but these are most relevant.

Answer 4

a) Safe and competent employees;
b) Safe and proper plant and equipment;
c) Safe place of work/premises, including safe access and way out; and
d) Safe systems of work, with adequate supervision and instruction

Question 5

What is the one main duty of an employer?

Answer 5

to take reasonable precaution to ensure an employee’s safety

Question 6

Describe the safe and competent fellow employees obligation. Include examples.

Answer 6

• An employer has a duty to select and employ competent staff.
• If a member of staff behaves in a way that poses a continuing risk to the safety of others, then it may be necessary to dismiss or re-deploy that person.
• e.g. If an incompetent person is employed or required to do a job that they are not capable of doing, then there will be a breach of the employer’s duty (Black v Fife Coal Ltd).
• Employing someone known to be in the habit of playing practical jokes on fellow employees is also a breach (Hudson v Ridge Manufacturing Company Ltd).

Question 7

Describe the safe place of work / premises obligation. Include third party premises too.

Answer 7

• The employer has a duty to take reasonable care to ensure that the premises the employee works in are safe.
• The employer’s duty extends to ‘third party’ premises too.
• Although an employer who sends out his employee still has a duty to provide a safe work environment, they have less control over the environments of third parties, so less is expected of them in that respect.
  (Wilson v Tyneside Cleaning Co)
• When it comes to the safety of third party premises, the court will consider what is reasonable in all the circumstances, including the place of work, the nature of the building, the experience of the employee, the nature of the work, the degree of control exercised by the employer and the employer’s knowledge of the premises (Cook v Square).

Question 8

Describe the safe machinery, plant and equipment obligation.

Answer 8

• The duty to provide a safe place of work also extends to providing safe machinery, plant and equipment (including any necessary safety features and protective clothing).
  -The courts might now decide that the employer should insist upon employees wearing boots when dealing with molten metal given the dangerous working environment.
• Qualcast v Haynes
  ○ the employer discharged its duty in this regard by providing protective boots against the obvious danger of splashes of molten metal.
• Employees will not always have proper regard for their own safety, therefore falls on the employer to take ultimate responsibility for devising as safe a system of work as the circumstances allow.

Question 9

Describe the safe system of work obligation.

Answer 9

• The safe system of work includes matters of instruction, training, warning and supervision. (Speed v Thomas Swift Co Ltd)
• Wilsons and Clyde Coal Ltdv English
  ○ held that it was the personal duty of the employer to see to the safety of the system of work, and that liability cannot be escaped by delegating performance of that duty to someone else.

Question 10

Can consent be used as a defence?

Answer 10

• Judges are very sceptical of this defence in the employment context (Bowater v Rowley Regis Corporation) and it can only be successfully invoked in extreme circumstances where ‘there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss’ (ICI Ltd v Shatwell).