Employment Liability Flashcards
Wilson & Clyde Coal Co v English (1937)
Employers owe a long established duty to take reasonable care so as to expose their employees to unnecessary risk.
Lord Wright said that this duty included an obligation to provide competent staff, adequate materials and a safe systems of work.
The duty owed is personal and non-delegable. Meaning that that employers cannot discharge their responsibility by delegating performance of that duty to an employee or contractor, even if they feel that the employee is competent for the role.
McDermid v Nash Dredging and Reclaiming Co (1987)
Pape v Cumbria County Council (1992)
An employer is under an obligation to provide employees with adequate personal protective clothing such as full body suits or breathing apparatus, but it is also under a duty to ensure that a safe systems of work is devised and implemented.
Cleaning lady and rubber gloves case.
Court of Appeal case of Clifford v Charles Challen & Sons (1951)
A safe systems of working required protective equipment to be made available at the place it was needed together with supervision to ensure employees used the equipment.
Denning LJ stated that working undertaking routine tasks are often heedless for their own safety, may become careless and must be supervised to ensure that slackness is not tolerated.
Woods v Durable Suites Ltd (1953)
Court of Appeal distinguished the decision in Clifford by holding that any duty owed by the employer did not extend to providing a supervisor, constantly watching, to ensure that a workman of full age and experience followed instructions in the use of readily available protective equipment.
The nature of the claimant’s illness is important.
Cumulative conditions such as asbestosis, where repeated exposure increases the severity of the symptoms may enable a court to find a causal link on the basis that the employer has materially contributed towards the claimant’s illness
Bennington Castings v Wardlaw (1956)
Holtby v Brigham and Cowan (2000)
Case established the employers liability to pay damage on the basis damages would be apportioned according to the extent to which their breach contributed towards the claimant’s illness.
If a claimant has suffered an illness where the precise timing of the trigger cannot be determined by medical science (e.g mesothelioma) the position is different.
The starting point is to assess the likelihood of the cancer having been triggered by reference to the level and duration of exposure to asbestos fibres throughout each period of employment. If on the balance of probabilities this was likely to have occurred during the index employment, the index employer will be fully liable for the ilness - the ‘but for’ test will be satisfied.
If a claimant is unable to satisfy the ‘but for’ test then they may rely on policy consideration in relaxing the ‘but for’ test to achieve corrective justice against employers in such cases
Fairchild v Glenhaven Funeral Services (2003)
S.3 Compensation Act 2006
In a case of mesothelioma, a claimant is entitled to pursue his full loss from any one of their employers.
The 2006 Act does not cover any other disease or illness.
In case not involving mesothelioma a claimant is only entitled to recover from the most recent employer and the extent is apportioned to the probability that the illness was triggered during the most recent employment.
Baker v Corus (2006)
In cases where a claimant clearly has not taken steps to ensure their own safety is considered then there will be contributory negligence and thus a substantial reduction in damages.
The reduction is based on the level of contrib.
s.1(1) Law Reform (Contributory Negligence) Act 1945
Employees that play practical jokes.
You need to consider whether that employee has known practical joker who had previously put fellow employees in danger
Hudson v Ridge Manufacturing Co Ltd (1957)
Practical jokers in the work place continued…
Employers are unlikely to have a responsibility for a single, unpredictable incident.
Smith v Crossley Bros (1951)
Graham v Commercial Bodyworks Ltd (1951)
Employers owe a duty to ensure that all equipment is properly inspected and maintained.
When you factor in the cost and ease of replacing a blade to an axel grinder when it is clear that a damaged worn blade could shatter to that of the substantial injury that it may cause - it is highly likely a court would apply liability to the employer.
Unless the employee themselves should inspect equipment before use and ensure that replacement blades for instance are fitted before use then there will be a finding of contributory negligence and a reduction in damages applied.
s.1(1) Law Reform (Contributory Negligence) Act 1945
