Negligence: Employer's Liability

Question 1

what are the two areas of liability in tort for employers?

Answer 1

o Primary liability in negligence for breach of the personal duty an employer owes to every employee
o Secondary liability of employers under the principle of vicarious liability for the torts of employees committed in the course of their employment

Question 2

explain the personal duty owed by an employer to employees

Answer 2

An employer has an established common law DOC in relation to physical harm. This is broken down into four separate duties i.e. an employer must take reasonable steps to provide:
o Competent staff;
o Adequate material (i.e. plant, equipment and machinery);
o A proper system of work and supervision;
o A safe place to work

Question 2

what is meant by a ‘personal duty’?

Answer 2

it is non-delegable. This is because the relationship between employer and employee is a close personal one based on mutual trust.

This means that the employer cannot avoid liability for negligent performance by saying that they delegated performance of the task to someone else (i.e. an independent contractor or another employee).

Question 3

what does an employee need to show to evidence a breach of an employer’s common law duty? Give two examples.

Answer 3

• An employee does not have to identify exactly who was to blame for an accident, they can simply allege that given the event / state of affairs the employer has breached its personal common law duty

Example 1:
o Fiona is injured at work when a machine explodes. The machine was recently serviced by a local contractor who negligently failed to spot an electrical fault. The employer owes Fiona a duty to provide adequate plant and equipment. Even though the contractor was the negligent one, the duty an employer owes is non-delegable so the employer is still liable to Fiona, not the contractor (the factor will have a claim in contract against the contractor). It does not matter whether or not Fiona knows that an independent contract was negligent.

Example 2:
o Robert is employed by a factory. He is knocked over outside the factory by a lorry driving negligently by Simon, who is delivering goods from a supplier. The factory is not liable in this instance. This is because the factory has not delegated performance of any of its duties to Simon (i.e. he has not been employed / contracted by the factory.

Question 4

re: common law duty

explain the duty to employ competent fellow staff

Answer 4

An employer owes an employee a duty to provide the employee with competent fellow workers

This duty does not arise simply because a worker is incompetent, but the employer must know or ought to have known about a risk a particular worker posed to other workers

the risk posed by the worker can be psychological as well as physical

this duty includes practical considerations, such as:
o Selection of competent staff
o Ensuring staff properly trained to do their job
o Appropriate supervision
o Dismissal of employees who continue to pose a risk despite the fact adequate training has been provided

if there has been a breach of this duty, the employee may be able to bring a claim against the employer through vicarious liability.

Question 5

re: common law duty

give an example of the duty to employ competent fellow staff

Answer 5

o Hudson v Ridge Manufacturing Co Ltd [1957]  C was injured at work following a prank by a colleague. The colleague had previously been reprimanded for this. The claimant’s claim succeeded as the employer knew about the risk the fellow worker posed. If this had been the first occasion a duty of care would not have arisen.

Question 6

re: common law duty

what are the practical considerations related to duty to employ competent fellow staff

Question 7

re: common law duty

explain the ‘duty to provide adequate plant, equipment and material’

Answer 7

An employer must provide all necessary equipment and maintain it to a safe standard. This covers two scenarios:
o Where an employer does provide plant / equipment but it is inadequate; and
o Where the employer fails to supply all plant / equipment needed for the job

Question 8

re: common law duty - duty to provide adequate plant, equipment and material

how could machinery become inadequate?

Answer 8

o Problems caused by age or wear and tear
o Problems caused by lack of servicing and inspection
o Lack of safety devices
o Inherent defects in the machines

Question 9

re: common law duty - duty to provide adequate plant, equipment and material

if the claimant is suing in relation to an inherent defect, what must they prove?

Answer 9

o Fault on part of the third party (i.e. the manufacturer or supplier); and
o Causation

Question 10

re: common law duty - duty to provide adequate plant, equipment and material

if there is an inherent defect in the machine, what can the employee do and why?

Answer 10

They can sue the employer. They do not need to sue the manufacturer. This is because the Employer’s Liability (Defective Equipment) Act 1969 s1(1) states ‘the injury shall be deemed to be also attributable to negligence on the part of the employer’.

Question 11

re: common law duty

explain ‘duty to provide a safe system of work’

Answer 11

• An employer owes an employee a duty to provide the employee with a safe system of work and take reasonable steps to ensure that it is complied with
• This is the widest duty and most frequently invoked.

Question 12

re: common law duty - ‘duty to provide a safe system of work’

what does a safe system of work involve?

Answer 12

o The physical layout of the job
o Sequence work is carried out
o Provision of training
o Warnings
o Notices
o Safety equipment
o Special instructions
o Imposing adjustments where an employee has suffered stress from lack of a safe system of work

Question 13

re: common law duty - ‘duty to provide a safe system of work’

what are examples of reasonable steps a reasonable employer might take to implement a safe system of work?

Answer 13

o Providing adequate training to employees in the operation of the new system
o Ensuring employees are supervised where necessary
o Monitoring operation of the system to ensure it is being complied with
o Take disciplinary action against an employee who fails to comply with the system

• In order to comply with this duty an employer must continuously assess the risks of its particular working environment.

Question 14

re: common law duty

explain ‘duty to provide a safe workplace’

Answer 14

• An employer owes an employee a duty to provide the employee with a safe place of work
• This means that the physical workplace must be safe i.e. no tripping hazards, level flooring

Question 15

re: common law duty - ‘duty to provide a safe workplace’

what does this overlap with? How?

Answer 15

There is an overlap with this common law duty and the statutory duty under the Occupiers’ Liability Act 1957. Under this Act, where there are dangers due to the state of the premises, an occupier (i.e. an employer in this case) owes a duty to visitors to take reasonable care for their safety

Question 16

re: common law duty

how does the duty to provide a safe workplace and Occupiers’ Liability Act differ?

Answer 16

• The common law duty is more onerous. This is because:
  o Under OL 1975, an employer can comply with its duty by delegating work to an independent contractor. Whereas the common law duty is non-delegable
  o OL 1975 only applies to premises that the employer occupies. Whereas the common law duty applies regardless of where the employees work

Question 17

what is important to note about occupational stress?

Answer 17

the usual test for psychiatric harm does not apply to stress at work

Question 18

what can the employee claim if they have suffered occupational stress?

Answer 18

the employee has suffered occupational stress due to the employers failure to provide a safe system of work, and so breaching their common law duty

Question 19

re: occupational stress

what do the courts consider when establishing whether a duty has arisen?

Answer 19

was the injury to health through stress at work reasonably foreseeable? The court must consider:
o The nature and extent done by the employee (i.e. workload, absenteeism, sickness in the department); and
o Signs from the employee themselves  the court have confirmed that the employer is generally entitled to assume that an employee is capable of normal pressures of the job and can take what they have said at face value.

Question 20

give some examples in relation to occupational stress

Answer 20

1. a teacher takes on extra work and is stressed, causing her to be depressed, but doesn’t tell their employer. Unlikely to be a DOC as the teacher has not told the employer.
2. teacher asks for 2 weeks off because he is going through a divorce and making him depressed. His employer is sympathetic but cannot grant the time off. Teacher is then signed off with stress. Employer not liable because the stress was not caused by work, but by a personal problem.
3. teacher suffers a nervous breakdown. On his return to work, he asks for support. This isn’t given and he has a 2nd breakdown. This was reasonably foreseeable and so the employer would be liable.

Question 21

once a duty of care has been established, what do the courts consider when determining if there has been a breach of duty?

Answer 21

• The key question is did the employer fall below the standard of a reasonable employer in the situation?

The courts will look at all the circumstances of the case but also consider:
o Foreseeability of risk;
o Magnitude of potential risk
o Cost and practicality of precautions
o Health and safety legislation

Question 22

re: breach of duty

explain foreseeability and magnitude of risk

give an example

Answer 22

• If there are specific known risks about a particular employee, then greater care has to be taken in regard to that individual employee. However, the risk must be known to the employer
• Paris v Stepney Borough Council [1951]
  o D did not provide C with safety goggles; this not standard practice because the risk of injury was so small. C
  o However, C was blind in one eye and D knew this.
  o Metal went into C’s eye and he was fully blinded.
  o It was held D owed C had breached their duty to C because D could reasonably foresee the risk and the magnitude of the risk was high – C would be fully blinded if his eye was damaged. This was a greater risk than to C’s fully-sighted counterparts.

Question 23

what are some issues covered as part of health and safety legislation?

Answer 23

o Obligations to carry out risk assessments
o Provision of information
o Training for employees

Question 24

what is the impact if there has been a breach of health and safety legislation?

Answer 24

• Breach of this law is not actionable as a civil claim but it is a criminal offence
• Although not actionable as a civil claim, the regulations are still relevant because a reasonable employer would be expected to adhere to these. Therefore if they have not, this would suggest that they have breached their duty in negligence.

Question 25

what are the main defences likely to be raised by an employer?

Answer 25

consent and contributory negligence