EXAM NOTES - Employer's Liability

Question 1

what’s the general duty of an employer in tort law?

Answer 1

Wilson and Clyde Coal v English

1. reasonably competent fellow employees
2. safe place of work
3. safe system of work
   - non-delegable McDermid v Nash Dredgin
   - also Mullaney v CC West Midlands Police

Question 2

how should employers provide competent fellow employees?

Answer 2

• check they can do their job and keep checking while they do. General Cleaning Contractors v Christmas
• more dangerous jobs = more rigorous checking General Cleaning Contractors v Christmas
• Black v Fife Coal: manager had no knowledge of safety procedures so negligently selected

Question 3

what are the rules for practical jokers/bullies

Answer 3

• if employer knew or ought to know the employee was a habitual practical joker, fellow employees can sue (Hudson v Ridge Manufacturing) but if not they cannot Smith v Crossley Bros
• same principle for bullying/harassment/victimisation - Waters v Commissioner of Police for the Metropolis; lots of warning

Question 4

what’s included in the definition of the workplace?

Answer 4

any third party premises employees are sent to eg window cleaners Wilson v Tyneside Cleaning

Question 5

what is the duty in relation to safety equipment

Answer 5

to provide it AND ensure it is used (Bux v Slough Metals - did not ensure use) so far as is reasonable - Yorkshire Traction v Walter Searby: protective shields on buses

Question 6

What is considered that undermines the safety precautions employers have to take

Answer 6

cost of precautions is considered Latimer v AEC employer had taken reasonable precautions in light of unreasonable cost of further measure

Question 7

what is the law on malfunctioning equipment

Answer 7

Employer’s Liability (Defective Equipment) Act 1969 – employers liable for injuries sustained through their employees using equipment made defective through the negligence of a third party.
- S1(3) “Equipment” interpreted very widely e.g. Coltman v Bibby Tankers – a defective ship was equipment

Question 8

what is the basic duty in relation to safe systems of work?

Answer 8

• create safe system (General Cleaning Contractors v Christmas no safe system for cleaning bay windows)
• operate safe system (McDermid v Nash Dredging)

Question 9

what is a system of work

Answer 9

Speed v Thomas swift

• layout and sequence of work, instructions, provisions of warning, special requirements etc
• employer takes ultimate responsibility for employee safety

Question 10

what is the duty on employers in terms of the system of work?

Answer 10

to take reasonable care Latimer v AEC

Question 11

give some cases that demonstrate how employers should take reasonable care

Answer 11

• Clifford v Charles Challen - no availability of barrier cream and its use discouraged; unsafe system
• Woods v Durable Suites - availability and encouraged use of barrier cream but ignored by workers; not an unsafe system
• may need to take into account workers individual needs eg Paris v Stepney BC one-eyed man had greater need for safety goggles
• reasonably careful employer gives warnings about danger eg Pape v Cumbria CC should have been warned about exposure to dermatitis

Question 12

how do the courts assess a breach in employer’s liability

Answer 12

ordinary negligence principles; was reasonable care taken in all circumstances
- objective test of the “reasonably competent employer” as in Yorkshire Traction v Walter Searby balanced different dangers

Question 13

how does causation apply?

Answer 13

normal causation rules

• ‘but for’ test - IN EMPLOYERS - McWilliams v Sir William Arrol
• legal causation: act of god/third party/claimant
• court may view refusal to wear safety equipment as a NAI McWilliams v Sir William Arrol (safety harness)

Question 14

how does foreseeability apply?

Answer 14

normal rules - damage suffered must be reasonably foreseeable Wagon Mound No 1

• Injury must be of a recognised kind Mughal v Reuters no recognition of repetitive strain injury at the time
• Rahman v Arearose – reasonably foreseeable that C could be assaulted in that particular branch of Burger King
• Workplace stress can be recovered for if you’ve told your boss you’re suffering Walker v Northumberland CC

Question 15

What defences to employer’s liability are there?

Answer 15

• volenti - but judges very sceptical (Bowater v Rowley Regis) and only usable if very strong evidence of a genuine agreement to the risk ICI v Shatwell

Contributory negligence – e.g. Bux v Slough Metals – held 40% to blame for not wearing his safety goggles. Also s1(1) Law Reform (Contributory Negligence) Act 1945

Question 16

What is the alternative way of framing the duty of the employer?

Answer 16

Winter v Cardiff RDC

- duty to take reasonable precautions to ensure the safety of employees

Question 17

what standard must an operator of machinery meet?

Answer 17

that of the reasonably competent operator of that kind of machinery

• nettleship v weston (driver)
• Wilshere v Essex AHA (junior doctor)