Negligence: Employers’ Liability

Question 1

Employer’s common law duty

Answer 1

The House of Lords in Wilsons & Clyde Coal Co Ltd v English [1937] 3 All ER 628 defined the
employer’s common law duty as comprising three separate duties.
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.
In Latimer v AEC Ltd [1953] 2 All ER 449, the House of Lords added a fourth duty to the list, ie
the duty to take reasonable steps to provide:
* a safe place of work.

NB: this is a non-delegable duty - this is because the relationship is a close personal relationship, based on mutual trust and
confidence.

Duty to provide competent staff, arises where an employer knows, or ought to know, about the risk
a particular worker is posing to fellow workers.

The duty to provide competent staff means that an employer will need to carefully consider
many practical issues, including:
* selection of staff;
* provision of training to ensure staff are equipped to do their job;
* provision of supervision as necessary;
* dismissal of employees who despite adequate training, etc, continue to pose a risk to
fellow staff.

Question 2

Key considerations

Answer 2

With regards to the provision of adequate plant and machinery:
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).

Employer need
s to make sure these reasonable steps for safty are complied with, by:
* 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.

Stress at work: threshold question
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.

Question 3

Breach of duty

Answer 3

Each of the duties owed by an employer requires the employer to take such steps as are
reasonable. An employer will be in breach of its duty if it fails to meet the standard of care to
be expected of a reasonable employer in its position.

Health and Safety at Work etc Act 1974 (HSWA 1974) - Breach of regulations made under the HSWA 1974 is a criminal
offence. This means that an employee injured at work will not be able to bring a (civil)
claim for breach of statutory duty based on regulations made under the HSWA 1974.

The content of statutory health and safety regulations will be relevant in assessing breach of
duty. A court assessing breach of duty in negligence will ask two basic questions:
* What risks ought the employer to have foreseen?
* What precautions ought the employer to have taken in response to those risks?

NB: The issues of causation, novus actus interveniens and remoteness must be considered, applying the usual tests.
The main defences raised by an employer are likely to be consent (voluntary assumption of risk) and contributory negligence.