ND Unit A - Element A10: Civil Law

Question 1

1. Employers have a duty at common law to take reasonable care for the safety of their employees. Explain, with reference to the relevant case law, the extent of this duty.

Answer 1

It is an employer’s common law duty to provide a safe place of work with safe means of access to and egress from it, safe systems of work, safe plant and equipment, competent fellow workers, etc. Relevant case law includes Wilsons and Clyde Coal Co. Ltd v. English (1938).
The extent of the duty would include a definition of “reasonable care” to take into account the foreseeability of harm, the magnitude of risk, the severity of harm, the cost of prevention and the extent of current knowledge.

Question 2

2. What is the three-stage test now used by the

courts to decide if a duty of care is owed?

Answer 2

The three-stage test (established in Caparo v. Dickman
(1990)) requires:
• Proximity - the two parties must be sufficiently proximate to each other.
• Reasonable foreseeability - the defendant should have reasonably foreseen that the act or omission would cause harm.
• Reasonableness - is it fair, just and reasonable to impose a duty?
(This latter requirement brings in the issue of public
policy such that, if the first two criteria were met it still may not be in the greater public interest to establish liability. For example, it may create indeterminate liability such that the number of possible claimants may be so large that it would undermine the insurance system that would pay compensation.)

Question 3

3. What is meant by the term ‘vicarious liability’?

Answer 3

If an employee, while acting in the course of his

employment, is negligent, then the employer is said to be vicariously liable as well as the careless employee.

Question 4

4. List the main defences to claims of breach of

statutory duty.

Answer 4

The main defences to claims of breach of statutory duty
are:
• Statute-barred.
• No breach of duty.
• Duty was not owed.
• Harm not covered by statute.
• Breach did not cause loss.

Question 5

5. What is the “date of knowledge” and why is it important?

Answer 5

The “date of knowledge” is the date from which the
negligent party, i.e. the tortfeasor, should have been aware of the risk associated with the particular hazard that
led to the injury, and taken appropriate action. Its main importance is in cases of occupational ill health where exposure to a particular agent may not have been known to cause harm. Two examples are asbestos and noise, where the link between exposure and ill health was not apparent for many years.

Question 6

6. What is the general duty owed by the occupier of premises to visitors?

Answer 6

A duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

Question 7

7. What does the OLA 1957 say about children?

Answer 7

An occupier must be prepared for children to be less careful than adults and must be aware of any lure or attraction to children, such as a pond, that could constitute a trap.

Question 8

8. Under what circumstances would an occupier owe a duty to trespassers?

Answer 8

The occupier knows that trespassers are gaining access; is aware of the danger or has reasonable grounds to believe it exists; and the risk is one against which the occupier may be reasonably expected to offer some protection.

Question 9

What general duty of care lies with which party?

Answer 9

• An employer owes a duty to his employees.
• An employer owes a duty to contractors working on his behalf on his premises.
• An employer owes a duty to visitors.
• An employee owes a duty to other employees, and to contractors on the premises.
• A contractor owes a duty to the employer, his employees and other contractors.
• A manufacturer owes a duty of care to suppliers and
consumers.

Question 10

What does common law requires that all employers provide and maintain:

Answer 10

• A safe place of work with safe means of access to and egress from it.
• Safe systems for doing the work.
• Competent and safety-conscious personnel.
• Appropriate supervision, information, instruction and training.
• Safe appliances, equipment and plant for doing the work.