Employer's Liability.

Employer’s Liability

Employers will be vicariously liable for torts committed by employees in the course of employment. It is applicable to claims by both third parties and fellow employees.

If a fellow employee’s tort is committed outside, the course of employment the employer is not vicariously liable.

An employer is not vicariously liable for the torts of an independent contractor, but he will be responsible where the contractor’s negligence produces a breach of the employer’s primary duty.

Employer liability takes one of these forms:

Vicarious liability for negligence of fellow employees
Primary liability for breach of personal, non-delegable duty
Liability for breach of statutory duty

The employer’s duty to his employees is personal and non-delegable. He can delegate the performance of the duty to others, but not responsibility for its negligent performance.

A successful plea must prove that

- A duty of care was owed

- That duty was breached

- Damage ensued

Wilson & Clyde Coal Co. Ltd v English [1938]

Responsibility is non-delegable even though by legislation the employer is required to delegate the task to a suitably qualified person and is not permitted to interfere.

But this is not a matter of strict liability. It will be fulfilled by the exercise of reasonable care for his employee’s duty. The duty is owed to each individual employee.

Paris v Stepney Borough Council [1951]

A duty is owed to each individual employee and the employer must take account of his circumstances.

Jeromson v Shell Tankers (UK) Ltd [2001]

In the case of occupational disease, foreseeability of the risk of injury of the same type is sufficient. The employer did not have to foresee the precise disease that the employee is likely to contract. Thus, if it known that the exposure to asbestos dust could produce lung disease, it is irrelevant that the link between asbestos and mesothelioma was not established until a later date.

Henderson v Wakefield Shirt Co Ltd [1997]

It is not the duty of the employer to go so far as to offer a wholly different job to avoid a claim in negligence.

Johnstone v Bloomsbury Health Authority [1991]

Requiring an employer to work such long hours that his health is reasonably foreseeably affected by stress and sleep deprivation may constitute a breach of the employer’s duty.

The standard of care is high. The employer owes a duty to take such precaution for the safety his employees as would be taken by a reasonably prudent employer in the same circumstances.

Employer’s duty (Wilson & Clyde Coal Co. Ltd v English [1938]):

Competent Staff
Safe place to work
Proper plant and Equipment
Safe system of work

The duty applies only to an employee’s physical and mental safety. Employer is not under is duty to protect the employee from economic loss.

Reid v Rush and Tomkins Group plc [1989]

No duty to provide employee posted overseas with personal accident insurance.

Outram v academy Plastics Ltd [2001]

There is no duty to advise an employee to join a pension scheme.

Mulcahy v MoD [1996]

CA held that as a matter of policy, despite the proximity of the relationship and foreseeability of damage, a soldier does not owe a duty of care to a fellow soldier when engaging the enemy in armed hostilities. Thus, the employer could not be vicariously liable for the negligence of one soldier to another.

Mullaney v CC of W Midlands Police [2001]

CA held that a Chief Constable of Police could owe a non-delegable duty to officers in the police force in respect of their health and safety, analogous to that owed by an employer to his employees. He can be liable for not only failure to devise a safe system of work, but also a negligent failure by a police officer to implement such a system. The court accepted that there might be cases where, on the facts, issues of public policy could be of sufficient weight to limit this duty, but where a safe system has been devised, and there was negligence by an officer in failing to implement it, resulting in injury to another officer, there were no policy reasons to exclude the duty.

Competent Staff

General Cleaning Contractors Ltd v Christmas [1953]

C was hurt while cleaning windows and conducting himself as taught by G.

The employer has an obligation to select competent fellow employees, and a collective duty to give them proper instruction in the use of equipment. This is a continuing duty, which might require the dismissal of incompetent employees.

Hudson v Ridge Manufacturing Co Ltd [1957]

The plaintiff was injured by an employee with a reputation for persistently engaging in practical jokes. The employer was held liable for not curbing ...

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Competent Staff

General Cleaning Contractors Ltd v Christmas [1953]

C was hurt while cleaning windows and conducting himself as taught by G.

Hudson v Ridge Manufacturing Co Ltd [1957]

The plaintiff was injured by an employee with a reputation for persistently engaging in practical jokes. The employer was held liable for not curbing his proclivities.

Smith v Crossley Bros Ltd (1951)

An isolated incident of horseplay would not be sufficient and the employer would not be liable unless the act could be regarded as within the course of employment.

Waters v Commissioner of Police for the Metropolis [2000]

If an employer knows or can foresee the acts, being done by employees might cause physical or psychiatric harm to fellow employee; it is arguable that the employer could be in breach of a duty to that employee if he did nothing to prevent those acts, which was in his power to do so.

Safe place to work

The employer must take reasonable steps to ensure that the work place is safe (Latimer v AEC Ltd [1953]). It is not necessarily discharged by giving a warning (London graving Dock Co Ltd v Horton [1951]).

Public Transport Corp. v Sartori [1977]

The duty can also extend to taking reasonable steps to secure the premises from intruders, to protect employees from physical attack.

McCafferty v Met. Police Receiver (1977)

The claimant’s experience and familiarity with the danger and the fact that he had made no complaints about the safety of the premises is no defence.

O’Rielly v National Ry and Tramway Appliances Ltd [1966]

The employer was held not liable for an unexploded shell for which he had no knowledge of. Thus, in the case of temporary danger the reasonableness of the employer’s conduct will depend on both the degree of the risk and the employer’s knowledge of the risk.

Wilson v Tyneside Window Cleaning Co. [1958]

The employer is also under a duty with respect to the premises of a 3rd party even though he has no control over the premises, but the steps required to discharge the duty vary with the circumstances.

Smith v Austin Lifts Ltd [1959]

In the case of premises occupied by a 3rd party, a warning about the state of the premises may suffice in some circumstances, whereas in others in may not be reasonable to allow them to work on the premises until the occupier has made it safe.

General Cleaning Contractors Ltd v Christmas [1953]

In occupations where the same type of danger is often encountered the employer may have to devise a safe system of work for dealing with it and instruct the employees in the use of the system.

Cook v Square D Ltd [1992]

The circumstances that have to be taken into account include:

the place where the work is to be done
nature of the building
experience the employee
nature of the work required to be carried out
the degree of control the employer can reasonably exercise in the circumstances
The employer’s own knowledge of the defective state of the prmises

Proper plant and Equipment

Smith v Baker [1891]

An employer has a ‘duty of taking reasonable care to provide appliances and to maintain them in proper condition’.

Toronto Power Co. Paskwan

If necessary equipment is unavailable and this leads to an accident, he will be liable, although he is not necessarily bound to adopt the latest improvements and equipment.

This is not an absolute obligation. An employer will not be liable for a latent defect that could not have been detected on a reasonable inspection.

Davie v New Merton Board Mills [1959]

The plaintiff was injured when a fragment of metal broke of a drift on being struck by a hammer. It entered his eye. The manufacturer had been negligent, but the plaintiff’s employers had purchased the tool from a reputable supplier and the defect was not discoverable by reasonable inspection. The employers not liable for manufacturer’s negligence. Thus, as far as the employer’s non-delegable duty is concerned the effect of the decision is that the manufacturer of tools cannot be regarded as a person for whose acts an employer is responsible.

This decision has been reversed by the Employer’s Liability (Defective Equipment) Act 1969 s(1)1 which makes the employer liable if an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by the employer. But it also provides that the employer can claim from the 3rd party whp was truly at fault.

Parkinson v Lyle Shipping Co [1964]

An employer will not be liable if a worker fails to make proper use of equipment supplied.

Leach v British Oxygen Co (1965)

An employer will not be liable where the employee acted foolishly in choosing the wrong tool for the job.

Coltman v Bibby Tankers [1988]

Equipment is to be given a broad definition.

Safe System of Work

There is a duty to provide a safe system of work for each employee. The employer is responsible for the layout of the workplace, training, supervision of staff and working methods adopted.

Whether an employer has established a safe system of work is a question of fact in each case.

Speed v Thomas Swift & Co Ltd [1943]

S was injured as sections of the rail had been damaged and the resulting circumstances made it unsafe on the occasion to load the ship.

HoL held that the employers were liable in the circumstances they had not laid out a safe system of work.

McDermid v Nash Dredging and Reclamation Co [1987]

P was untying ropes when the secured tug moved under the Captain’s control. This resulted in amputation to P’s leg. P won and the tug owners were held vicariously liable, as the duty was non-delegable. It also ruled that the system of work was unsafe.

HoL also said that there are 2 aspects to the provision of a safe system of work:

the devising of a safe system
its operation

Even if the system is safe, a negligent failure to operate the system, whether by another employee or an independent contractor will render the employer liable.

Ferguson v Welsh and Other (1987)

A local authority, which engaged the services of an independent contractor to demolish a building, was not liable to a worker (employed by the operators whom the contractor had allowed on site) who was injured as a result of the adoption by those operators of an unsafe system of work. Nor were the authority as occupiers of the premises liable under s.2 Occupier’s Liability Act 1957.

Morris v Breaveglen Ltd [1993]

An employer who sends his employee to work on a site under the direction and control of another ‘employer’ remains liable to his employee if the systems of work are unsafe, particularly where in the past, the employer has allowed the employee to operate plant or equipment without proper instruction and injury was caused by that.

Nelhams v Sandells Maint. Ltd [1996]

Where the ‘second employer’ has also been negligent then that employer to the employee and there may be an apportionment of loss between the 2 defendants under the Civil Liability (Contribution) Act 1978. In an appropriate case, this may be a full indemnity of the employer by the second employer.

Winter v Cardiff Rural DC [1950]

The duty can apply to an isolated task, however, where it is complicated or highly dangerous or prolonged or involves a number of men performing different functions.

The obligation to provide a safe system of work also extends to an employee’s mental health although the damage must take the form of a recognized psychiatric illness.

There is no duty to protect an employee from unpleasant emotions.

Petch v Customs and Excise Commissioners [1993]

CA accepted that employers owe a duty to take reasonable care not to damage an employee’s mental health by adopting a system of work, which is such that the stress created by the workload of the job gives rise to a real risk of foreseeable mental breakdown. On the facts, the plaintiff’s actions failed because his breakdown was held to be unforeseeable.

Walker v Northumberland CC [1995]

The plaintiff’s action in respect of a second nervous breakdown attributable to the stress of work was successful because he had suffered an earlier breakdown. Following the breakdown, the second breakdown was more readily foreseeable when the employers did not respond to his requests for assistance to reduce the burden of his work as manager.

Hatton v Sutherland [2002]

CA laid down principles to be applied in claims for psychiatric harm arising from occupational health.

Since the employer’s duty is owed to the individual employee, the initial question is ‘whether this kind of harm to this particular employee was reasonably foreseeable.

Issues, which go to the foreseeability of psychiatric harm, include:

The nature and extent of the work being done by the employee (is the employer putting pressure on the individual employee; are there signs that other employees are also suffering stress?)
Signs of impending harm to health since stress may manifest in such ways
Unless the employer knows of some particular problem or vulnerability, the employer is entitled to assume that his employee is up to the normal pressures of the job. He is also entitled to take what he is told at face value.
In assessing what precautions the employer could reasonably take to avoid the risk of psychiatric harm to an employee the court should take into account the size and scope of the employer’s operation, his resources, whether public or private sector and other demands placed upon the employer, including the interest of other employees in the workplace.

In addition to the problem of causing breach of duty, proving causation is also tenuous in cases involving psychiatric illness. They have to demonstrate that the psychiatric illness is not due simply to stress at work but that it was the employer’s specific breach of duty that caused the damage.

In Hatton, the court commented that ‘Where there are several different possible causes, as will often be the case with stress related illness of any kind, the claimant may have difficulty proving that the employer’s fault was one of them. But the employee need not prove that the breach was the sole cause, merely that it made material contribution to his mental illness (Bonnington Castings).

If an employee suffers psychiatric harm as a result of witnessing a ‘shocking event’ for which his responsible, the employee must bring himself within the category of a primary victim or satisfy the restrictive criteria applied to secondary victims.

Where an employer has followed a general practice of a particular trade, the claimant will have some difficulty in establishing negligence.

Thompson v Smith Shiprepairers Ltd [1984]

The employer was held not liable having adopted a recognized practice, which had been followed throughout the industry as a whole for a substantial period, where, at that time, the consequences of the particular type of risk were regarded, as inevitable.

Thus, the test was what would have been done by a reasonable and prudent employer, who was properly but not extraordinarily solicitous for his worker’s safety, in the light of what he knew or ought to have known at the time.

Gray v Stead [1999]

It was held that the common practice of not supplying fisherman of small fishing vessel with inflatable jacket was not negligent.

Clifford v Charles H. Challen & Sons Ltd [1951]

An employer must allow for the fact that employees may be inadvertent or heedless of risks, particularly where they are encountered on a regular basis. This will involve taking reasonable steps, not only to instruct employees on safety procedures, but also to ensure that procedures are followed.

Pape v Cumbria CC [1992]

Employers are liable for the plaintiff’s dermatitis caused by contact with cleaning products, notwithstanding the provision of protective gloves, on the basis of a failure to warn cleaning staff of the danger of sustained exposure of the skin to chemicals and a failure to instruct staff to wear protective gloves at all times.

In some cases, a warning of the danger to a skilled employee will be sufficient to discharge the employee’s duty, and in others, it may be reasonable to expect experienced workers to guard against obvious dangers.

Baker v T.Clarke Ltd [1992]

It was held that it was not necessary for an employer to tell a skilled and experienced man at regular intervals things of which he is well aware unless there is reason to believe that that man is failing to adopt the proper precaution or, through familiarity becoming contemptuous of them.

Rozario v The Post Office [1997]

CA held that employers were not in breach of a duty to supervise and instruct the plaintiff who injured his back lifting a box. Though he had not long returned to such work after a period on lighter duties following an earlier accident, the lifting in question was a simple task, which the plaintiff had done for many years and so it was not necessary for there to be repeated instruction or regular supervision to prevent him falling into bad habits.

King v Smith [1969]

In some circumstances, the risk may be so great that the employer has a duty to issue an absolute prohibition against using a dangerous method of working.

Statutory Duty

Breach of statutory duty is an entirely separate tort from an action in negligence.

Health and Safety at Work etc. Act 1974

It imposes a number of very general duties in relation o safety at work, breach of which does not give rise to a civil action.

The statues usually require 2 types of duties:

Absolute Duty
Duty ‘as far as practicable’

Absolute Duty –

Summers v Forest [1955]

Factories Act 1961 s14(1) required that every dangerous part of any machinery must be securely fenced. It was held to be an absolute obligation, in the sense that it is not a defence to show that it was impracticable to fence even though it would make it unusable.

Duty ‘as far as practicable’-

The assessment of what is reasonably practicable must involve a calculation similar to that in deciding what constitutes reasonable care although it is probably stricter.

Edwards v National Coal Board [1949]

‘Where there is gross disproportion between the risks and the measures necessary for avoiding the risk, the risk being insignificant in relation to the cost, the measures are not reasonably practicable’.

Larner v British Steel plc [1993]

CA held that in determining whether a place of work has been kept ‘safe’ under the Factories Act, it would be wrong to import a test of ‘reasonable foreseeability’ of danger. The obligation imposed by the section was strict with no reference to foreseeability.

Latimer v AEC Ltd (1953)

HoL held that the employers had done what was practicable save to shut down the premises and exclude the workforce.

Brown v Rolls Royce Ltd (1960)

It was held that the employers had taken steps to prevent dermatitis, which a reasonably prudent employer would take in the circumstances. Thus, they were held not liable.

Defences