Negligence: Employers’ liability Flashcards
Which statement best describes whether breaches of statutory regulations governing health and safety at work are relevant for employees who wish to bring claims in tort against their employers?
A-They are never relevant.
B-They are relevant for breach of statutory duty claims.
C-They can be relevant in determining whether an employer has breached their duty of care in negligence.
D-They can be relevant in determining whether an employer can rely on the defence of statutory authority.
E-They can be relevant in determining whether an employer owes a duty of care in negligence.
C is the correct answer. Breach of health and safety regulations may be relied upon by an employee to prove that an employer has not met the standard of the reasonable employer. A is therefore wrong.
B is wrong because, following the implementation of s.69 ERRA 2013, breaches of health and safety at work regulations cannot be used as the basis of a claim for breach of statutory duty.
D is wrong because the defence of statutory authority is only relevant in nuisance claims (and is not based upon health and safety at work regulations in any event).
E is wrong because the duty of care is an established duty under Wilsons & Clyde Coal v English [1937].
A woman’s employer carried out a risk assessment at their factory. The risk assessment indicated that single-use disposable gloves should be provided to all employees who handle a cleaning product that is known to be a cause of eczema.
Disposable gloves were regularly provided to employees for a short time after the risk assessment. However, the supply of gloves to employees was subsequently restricted by the employer because it decided that costs could be reduced by staff reusing the disposable gloves. Employees complained that the disposable gloves tended to rip and tear when they were taken off but the employer ignored the employees concerns.
A statutory regulation (the Regulation) states: ‘Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work…’
The woman handled the cleaning product regularly at work and has now contracted eczema.
Which statement best describes the potential claims in tort that the woman may be able to bring against her employer to obtain compensation for her eczema?
A-The woman cannot rely on the Regulation to bring a claim for breach of statutory duty. However, the breach of the Regulation can be relied on by the woman to prove breach of the employer’s duty in negligence.
B-The woman should rely on the Regulation to bring a claim for breach of statutory duty rather than negligence because the woman will not be required to prove a lack of reasonable care by her employer. Her employer will be strictly liable for their failure to comply with the Regulation.
C-The woman cannot rely on the Regulation to bring a claim for breach of statutory duty. Her claim in negligence is unlikely to be successful because her employer is entitled to consider the cost and practicality of providing the gloves.
D-The woman should not bring a claim for breach of statutory duty because her employer has complied with the Regulation by providing gloves to the employees. Her claim in negligence is also unlikely to be successful because her employer has complied with the Regulation.
E-The woman should rely on the Regulation to bring claims for both breach of statutory duty and for breach of the duty of care she is owed by her employer in negligence.
A is the correct answer. Breaches of statutory health and safety regulations cannot be relied upon by employees as the basis for a claim for breach of statutory duty (s.47 Health and Safety at Work … Act 1974). However, the content of such regulations will be relevant is assessing breach of duty in negligence. Here, while gloves were provided to staff, they were not suitable because staff were expected to reuse damaged gloves. A reasonable employer would have complied with the Regulation and the woman’s employer is likely to be found to have breached their duty of care.
B is wrong because the Regulation cannot be relied upon for a claim for breach of statutory duty. While it is correct that the wording of the Regulation does not require fault by the employer (‘shall ensure that suitable personal protective equipment is provided’), the claim in negligence does require the woman to prove a lack of reasonable care i.e. fault.
C is wrong because the cost and practicality of precautions is only one factor when considering whether an employer has breached their duty of care in negligence. The courts would also consider the magnitude of the risk to be prevented and the obligation imposed by the Regulation. It is likely, therefore, that the employer would be found liable in negligence if the employee can prove causation.
D is wrong because the Regulation cannot be relied upon for a claim for breach of statutory duty. In addition, the wording of the Regulation requires the employer to provide suitable gloves. The employer has not, therefore, complied with the Regulation.
E is wrong because the woman can only bring a claim in negligence.
An employee at a factory works as an operator of a machine that makes plastic cups. The employer had installed a protective fence to guard the dangerous moving parts on the machine. When the employee first began to use the machine, he discovered that the fence could easily be moved to one side. He found this made his work much quicker, so he developed the habit of moving the fence to one side when he was working. The foreman in charge of the employee’s work had noticed this practice. At first the foreman told the employee that he must only use the machine with the fence in place. However, the employee ignored this instruction and continued to move the fence. Eventually the foreman gave up ordering the employee to replace the fence. Last week the employee caught his hand in the machine and suffered a severe injury to his hand. The employee brings a claim in negligence against the employer.
Which of the following is the best explanation as to whether the employee’s claim is likely to be successful?
A-Yes, because the employer has allowed him to work in an unsafe workplace.
B-Yes, because the employer has not taken reasonable steps to provide that a safe system of work is followed and enforced.
C-No, because it is the employee’s own actions that have caused his personal injury.
D-No, because the machinery is safe if the fence is kept in place.
E-No, because the employer has delegated responsibility for the employee’s safety to the foreman.
Option B is correct because under Wilsons & Clyde Coal Co. Ltd v English [1937] All ER 628, employers owe a duty to employees to adopt a safe system of work. This includes monitoring it and enforcing it.
Option A is wrong because the employee’s injury is not due to the workplace being unsafe.
Option C is wrong because the employee should not have been allowed to keep moving the fence so it would not defeat the claim. It would be relevant to the potential defence of contributory negligence.
Option D is wrong because this is irrelevant. The foreman had turned a blind eye to the employee moving the fence and thus a safe system of work had not been enforced.
Option E is wrong because an employer’s duties under Wilsons are non-delegable.
An employee is employed in a paint factory. He recently suffered lung damage caused by inhalation of fumes when a fellow employee misread the amount of toner to be added to the paint and added ten times the correct amount. This started a chemical reaction in the paint which filled the factory with fumes. These fumes caused severe lung damage to the employee.
The employer always imposed strict safety precautions to prevent such incidents and has provided all employees with extensive training. However, on this occasion the precautions were not taken as the fellow employee was in a hurry and did not read the instructions. Both employees have excellent disciplinary records and are usually very careful.
Will the injured employee be able to claim damages from the employer?
A-Yes, because the employer breached its absolute duty to ensure a safe system of work and supervision.
B-No, because the employer had no reason to suspect that the fellow employee would do something dangerous and so has taken reasonable care.
C-Yes, because the employer failed to take reasonable steps to provide competent fellow staff.
D-No, because the employees had all received training and that is sufficient to show that reasonable care has been taken.
E-Yes, because the employer was under a duty to provide safe premises and breached this as the factory was filled with fumes.
Option B is the correct answer because we are told that the employee was usually very careful but here had added too much toner because he was rushing. We are also told the employer always imposed strict safety precautions to prevent such incidents and has provided all employees with extensive training. The employer has therefore taken reasonable care as in Wilsons & Clyde Coal Co Ltd v English [1937] 3 All ER 628.
Option A is wrong because the employer had trained the employees and imposed strict safety precautions. The duty is to take reasonable care to provide a safe system of work and supervision.
Option C is wrong because there was nothing to suggest that the fellow employee was known to the employer to be problematic. The employee has an excellent disciplinary record and is usually very careful.
Option D is wrong because the provision of training is only part of the safe system of work.
Option E is wrong because the premises themselves were safe, although an activity conducted on the premises caused harm.
A solicitor’s client is an employee of a bicycle manufacturer and works in its factory as an operator of a machine that makes bike wheels. The bicycle manufacturer has contracted with a maintenance company for the maintenance of its plant and equipment.
The maintenance company had installed a fence to guard the dangerous moving parts on the wheel making machine. When the client first began to use the machine, they discovered that, although there was a safety guard over the dangerous moving parts on the machine, the safety guard could easily be moved to one side. The client found that this made their work on the machine much quicker. Due to this, the client developed the habit of moving the safety guard to one side when they were working on the machine.
One day the client caught their hand in the machine and suffered
severe injury, necessitating the amputation of two fingers.
Has the bicycle manufacturer breached the duty of care that it owes to the solicitor’s client?
A-No, because the bicycle manufacturer has supplied safe plant and equipment as there was a safety guard around the dangerous parts of the machine
B-No, because the bicycle manufacturer took all reasonable care in selecting the maintenance company to carry out the maintenance of its plant and equipment.
C-No, because the client was at fault in moving the safety guard to one side.
D-Yes, because the bicycling manufacturer will automatically be found to be liable in negligence as there is a regulation under the Health and Safety at Work etc Act 1974 that covers safety guards.
E-Yes, because the duty to provide a safe system of work is relevant as the client should not have been able to move the safety guard and continue working on the machine.
Option E is correct because the duty to provide a safe system of work is relevant and the client should not have been able to move the safety guard and continue working on the machine.
Option A is wrong because, the fact that the bicycle manufacturer may (arguably) have supplied safe plant and equipment will not, in itself, mean that it will not be found to have breached other elements of the duty of care that it owes its employees.
Option B is wrong because the duty of care the bicycle manufacturer owes its employees is personal and non-delegable. While the task of maintaining the plant and equipment has been contracted out to the maintenance company, this is irrelevant as it cannot contract out of the duty of care it owes its employees.
Option C is wrong because, while this may be relevant to the issue of the defence of contributory negligence, it is not relevant to whether the employer has breached its duty of care. Defences are only considered after the liability under the elements of the relevant tort (here duty, breach and causation) has been established.
Option D is wrong because a breach of any regulation under the Health and Safety at Work etc Act 1974 does not automatically lead to a finding that there has been a breach of a duty of care in negligence. The breach of the regulation is, however, relevant to the breach of duty question in negligence.
A catering company is run by a general manager and employs a head chef and three cooks. The head chef is the kitchen supervisor and part of her role is to enforce kitchen health and safety policies. One such policy is the need for cooks to wear a visor when using a blow torch to create the glaze on crème brulee. The head chef has told all the cooks of the need to follow this policy and there are plenty of visors available. The general manager knows that the head chef does not always enforce safety policies but because she is such a good cook, he ignores this failure. One day, because they are not wearing a visor, a cook suffers a severe eye injury when glazing a crème brulee with a blow torch. The cook brings a negligence claim against the catering company.
Is the cook likely to be owed a duty of care by the catering company?
A-No, because the company has delegated to the head chef the responsibility for enforcing health and safety policies.
B-No, because the head chef had discharged the company’s duty by telling all the cooks to ensure that they follow the visor wearing policy.
C-No, because it was the cook’s decision not to wear the visor and thus the injury was due to their own carelessness.
D-Yes, because the employer is vicariously liable for the head chef’s failure to enforce the visor wearing policy.
E-Yes, because an employer has a non-delegable duty to provide a safe system of work for employees.
Option E is correct. Wearing a visor would constitute part of safe system of work and under Wilsons, this is non-delegable. Also, the company knows that the head chef does not always enforce safety policies.
Option A is wrong because the duty owed by the company is personal and non-delegable and the company knows the chef does not always enforce safety policies.
Option B is wrong because the duty to provide a safe system of work includes enforcement of policies as well as informing staff about their existence.
Option C is wrong because the cook is still owed a duty even though their damages could be reduced by the defence of contributory negligence.
Option D is wrong because this does not address the question raised. The question asks whether the company itself owes a duty of care.
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B-
C-
D-
E-
