Employers' Primary Liability Flashcards
Who is employers’ primary liability between?
Employer/tortfeasor and employee/claimant
Two key Acts that cover employers insurance for claims in negligence?
Employers’ Liability (Compulsory Insurance) Act 1969 and the Employers’ Liability (Compulsory Insurance) Regulations 1998.
What’s the most important feature of the duty of care imposed on employers?
It is personal and non-delegable (McDermid v Nash Dredging [1987] 2 All ER 878). This means that regardless of who the employer uses to carry out tasks, the ultimate responsibility for the safety of the employee rests with the employer.
What are the four key elements of the employer’s duty? What case do they derive from?
(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.
Wilsons and Clyde Coal Co Ltd v English [1938] AC 57
What are 2 examples (cases) of a breach of the duty to have (a) Safe and competent employees?
Black v Fife Coal Ltd [1912] an incompetent person is employed or required to do a job that they are not capable of doing.
Hudson v Ridge Manufacturing Company Ltd [1957] employing someone known to be in the habit of playing practical jokes on fellow employees (or where that should have been known)
1 example of (c) Safe place of work/premises, including safe access and way out
‘employer has to take reasonable care to ensure premises are safe’
Wilson v Tyneside Cleaning Co [1958]: window cleaning company owed a duty to take reasonable steps to ensure that all the locations where the window cleaners cleaned windows were safe.
HOWEVER NOTE: third parties - generally less than in relation to the employer’s own premises - 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” (see Cook v Square [1992].
2 examples of (b) Safe and proper plant and equipment?
Qualcast v Haynes [1959]: employer discharged its duty in this regard by providing protective boots against the obvious danger of splashes of molten metal (note may not be decided in same way today…)
Yorkshire Traction Co Ltd v Walter Searby [2003]: C bus driver stabbed by passenger - claimed negligent protection (no screens) CoA held not negligent in failing to put up screens in all buses.
Anagram for employers liability? And case?
CAPS Competent staff Adequate machinery Safe PLACE of work Safe SYSTEM Wilson.
3 examples of (d) Safe systems of work, with adequate supervision and instruction?
Wilsons and Clyde Coal Ltd v English: Lord Wright 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.
- Miner on morning shift was leaving the pit when the haulage plant was put into operation and he was crushed against the side of the road before he had time to reach a refuge hole. The employers, who had delegated their duties to a qualified manager, were held liable - unsafe to operate the haulage plant while the morning shift was leaving work.
Speed v Thomas Swift Co Ltd (1943): question of what constitutes a safe system of work was considered: safe system of work would appear to include matters of instruction, training, warning and supervision.
General Cleaning Contractors Ltd v Christmas [1953]: stresses the importance of planning work with due regard to safety, by having an agreed safe system of work.
Facts and outcome of the key case General Cleaning Contracts Ltd v Christmas?
Facts: Mr Christmas - window cleaner - to save time window cleaners for the company climbed onto windowsills instead of using ladders. Mr Christmas slipped whilst holding onto sash window and injured himself. Claimed damages.
Held: HoL found employer liable - duty on the employer to go to the site of work, assess the risks, and plan and organise a safe system or method for doing the work so as to minimise the risk of injury. It was suggested that the provision of training, wedges or some other system to prevent the window frames from slipping should be employed in order to make the job reasonably safe.
Facts of Bux v Slough Metals? [1974]
C worker splashed with molten metal, lost sight in one eye. Employer had complied with the statutory duty to provide safety goggles (ie the duty to provide safety equipment), but the court held that the personal duty at common law went further than this, requiring the employer to encourage or insist on the wearing of the goggles.
HOWEVER: where employees object or refuse to use safety equipment, an employer may not be negligent for failing to enforce the use of that safety equipment.
Duty extends to providing a measure of instruction and supervision.
How can the duty to provide (d) Safe systems of work, with adequate supervision and instruction be split?
- the duty to create a safe system and
2. the duty to operate that safe system.
Does it fall on the employer to take take ultimate responsibility for devising as safe a system of work as the circumstances allow?
Yes - built into this concept is the recognition that employees will not always have proper regard for their own safety
Cases that concern ‘barrier cream’?
Clifford v Charles Challen and Son Ltd [1951] 1 KB 495:
- no cream on site
- failed to ensure used
- NEGLIGENT
Woods v Durable Suites Ltd [1953] 1 WLR 857
- cream on site
- made known to claimant to use cream
- instructions on how/why to use cream provided
- NOT NEGLIGENT
Are there other duty’s to take reasonable precaution that fall outside of the 4 obligations?
Yes - for example, there is growing case law detailing the obligation on an employer not to provide an excessive workload for an employee.
