Negligence: Employers' Liability Flashcards
What is employers’ liability?
A claim in negligence where an employee is suing their employer for the employer’s own negligence
(The structure & rules for employers’ liability are the same as for a general negligence claim)
Does an employer owe their employee a duty of care?
Yes
This is an established, non-delegable duty of care (ie. will always exist - even if eg. employer has delegated responsibility for safe machinery to external contractor)
What losses can be claimed in employers’ liability?
Personal injury
Psychiatric illness (eg. work-related stress) which was reasonably foreseeable
Psychiatric illness as a result of sexual harassment at work
Bullying
Is repetitive strain injury a possible loss in employers’ liability?
No - courts don’t recognise RSI
eg. Mughal v Retuers: court’s said RSI not in medical books & can’t recognise a loss that doesn’t exist
Is a duty of care owed in employers’ liability for occupational stress?
Yes if the risk of work-related harm to the employee was REASONABLY FORESEAABLE due to:
- The NATURE OF WORK done by the employee
(eg. v high workload, reasonably foreseeable they’d suffer stress) - SIGNS OF HARM from the employee
(eg. obvious they are struggling)
Nb. Employers can take at face value what employees tell them - can assume an employee is up to the normal pressures of their job, and if the employee says their fine, can believe them
What does an employer have a duty to provide to their employee? (3 categories)
i. A safe place of work
ii. A safe system of work
iii. Competent fellow employees
(Nb. guidelines only, not statutory test)
When deciding if an employer has breached the standard of care of a reasonable employer, what should be considered? (3 categories)
i. Safe place of work
ii. Safe system of work
iii. Competent fellow employees
What should be considered when deciding whether there was a safe place of work?
Physical workplace safe (eg. no tripping hazards)
Adequate, suitable plant & material supplied
What should be considered when deciding whether there was a safe system of work?
The physical layout
The sequence in which work is to be carried out
The provision of warnings & instructions
The training of the claimant themself - have they been properly trained for the work they’re doing?
Adequate supervision
Any specific known risks about the particular employee, & whether greater care taken for them as a result
What should be considered when deciding whether there was a failure to provide competent fellow employees?
Has there been a fault of the employer in providing an incompetent fellow employee (eg. job selection, training, disciplining)
Does the employer know or ought to have known that there was not proper supervision?
ie. There must be a fault of the employer not just that a fellow employee is incompetent!
How are defences different in an employers’ liability negligence action?
Contributory negligence: courts are prepared to recognise even if an employer is in breach, the claimant may themselves be at fault, so damages reduced
(eg. Bux v Slough: reduced damages by 40% because safety measures were available but B didn’t use them)
Volenti: courts exercise significant caution - difficult to prove employee has voluntarily accepted the risk of injury (eg. might have to feel they should continue so not fired)
(eg. Johnstone v Bloomsbury HA: junior doctor suffered psych damage due to contract requirement to work 40 hours then 40 hours on call. Employers tried to argue volenti because he had signed contract - but term unfair
Can the breach of a statutory health & safety regulation be relied upon when assessing breach of duty in negligence?
Yes
Breaches of statutory health & safety regs can’t be relied upon by employees as the basis for a claim for breach of statutory duty (s47 Health and Safety at Work Act) but will be relevant in assessing the breach of duty in negligence
(ie. reasonable employer would have complied)
