Negligence: Employer's liability Flashcards
Employer’s common law duty
The duties are to take reasonable steps to provide:
* competent staff;
* adequate material (ie plant, equipment and machinery); and
* a proper system of work and supervision
* a safe place of work.
Competent staff
An employer owes an employee a duty to provide the employee with competent fellow workers.
The duty arises where an employer knows, or ought to know, about the risk a particular worker is posing to fellow workers.
Adequate plant and equipment
An employer owes an employee a duty to provide the employee with adequate plant and equipment.
This duty is relevant in two situations:
* Where an employer does provide plant and/or equipment to his employees but it is inadequate in some way. For these purposes ‘equipment’ covers anything provided by an employer for the purposes of its business.
* Where an employer does not in fact supply all the plant and equipment needed for the job. This aspect of the duty overlaps with the duty to provide a safe system of work
However, one reason equipment may be inadequate is because of inherent defects. Here, the injured employee needs to establish two things:
* fault on the part of the third party (most commonly the manufacturer of the equipment, but a supplier would also come within the statutory provision);
* causation (ie that the fault of the third party caused the employee’s injury).
Safe system of work
An employer owes an employee a duty to provide the employee with a safe system of work.
It is not enough for an employer simply to devise a safe system; this duty also requires an employer to take reasonable steps to ensure that it is complied with. The steps which a reasonable employer would take to ensure the safe system is being implemented include:
* providing adequate training to employees in the operation of the new system;
* ensuring the employees are supervised, at least at the outset;
* monitoring the operation of the system to ensure it is being fully complied with; and
* taking disciplinary action against any employee who fails to comply with the system.
Safe workplace
Although there is an overlap, the employer’s common law duty to employees is more onerous than the duty under the 1957 Act in two respects:
* Under the 1957 Act, an employer can comply with its duty by delegating work to an independent contractor (s 2(4)(b)). The employer’s common law duty is, in contrast, non-delegable.
* The 1957 Act duty only applies to premises of which the employer is ‘occupier’. The common law duty to provide a safe system of work applies regardless of where the employees are at work. This means an employer has to assess premises to which his employees are sent for dangers and then, if such dangers are found, devise and implement a system of work so as to eradicate or minimise those dangers.
Stress at work?
The duty to provide a safe system of work can extend to an employee who has suffered stress as a result of his work.
The Court of Appeal said that the ‘threshold question’ to determine whether a duty would arise was whether injury to health through stress at work was reasonably foreseeable.
The Court went on to say that in deciding this threshold question the court should consider:
* the nature and extent of the work done by the employee (eg was the workload obviously too demanding in terms of type or amount; was there a high degree of absenteeism or sickness in the relevant department, etc); and
* signs from the employee themselves. The Court stated that an employer is generally entitled to assume an employee was up to the normal pressures of the job and was entitled to take what an employee told it at face value.
Breach of Duty
Each of the duties owed by an employer requires the employer to take such steps as are reasonable.
Defences
The main defences raised by an employer are likely to be consent (voluntary assumption of risk) and contributory negligence.
