LAW2010

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Employers Liability

INTRODUCTION
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The action against the employer for damages by the employee who suffers personal
injury on the job is only one of the methods available for compensation for workplace
accidents.

For instance, in those jurisdiction where There is a National Insurance Scheme the
employee may take advantage of this so long as the requisite conditions are fulfilled.

Kodilinye
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This duty is not an absolute [duty] and can be discharged by the exercise of due care
and skill which is a matter to be determined by consideration of all the circumstances
of the particular case

THE EMPLOYERS COMMON LAW DUTY

Smith v Baker - implied term in contract of employment for employers duty of care
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Lord Herschell: It is clear that the contract between employer and employed involves
on the part of the former, the duty of taking reasonable care to provide proper
appliances, and to maintain them in a proper conditions, and to carry on his operations
as not to subject those employed by him to unnecessary risk

Davie v New Merton Board Mills Ltd & Wilsons & Clyde

Coal Co. v English- Refined Duty

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A duty to take reasonable care for their (employees) safety.

McDermid v Nash Dredging Co. Ld. - Duty of care non-delegable

Facts
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D claimed to have delegated the duty of care of the company to the Tug boat
captain; where the captains negligence caused injury to another employee.

Held
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Non- delegable duty

The Ds duty of care was non-delegable in the sense that they were personally
liable for its performance and could not escape their liability if it was
delegated and not properly performed; and that, accordingly, although they

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had delegated the performance of their duty of care to the captain, they could
not thereby avoid their own liability to the C
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The essential characteristic of the duty is that, if it is not performed, it is no

defence for the employer to show that he delegated its performance to a
person, whether his servant or not his servant, whom he reasonably believed to
be competent to perform it. Despite such delegation the employer is liable for
the non-performance of the duty.

In sum the employer must take reasonable care to provide:

1. Competent Staff
Ifill v Rayside Concrete Works Ltd. - skylarkers
Facts
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Two factory employees, both known to the employers for their

propensity for skylarking- had been twice warned to desist.

Subsequently in a skylarking incident one tripped on a pipeline while

engaging C, both men fell into a cement mixer and sustained injuries.

Held
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D was held to be in breach (negligent) of their common law duty not to

expose the claimant to the risk of danger from undisciplined fellow
employees.

The claimant was contributorily negligent in participating in the

skylarking.

Douglas CJ:
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Upon principle it seems to me that, in fact, a fellow workman is not

merely incompetent but, by his habitual conduct, is likely to prove a
source of danger to his fellow employers, a duty lies on the employers
to remove that source of danger

The skylarking constituted a menace not only to themselves but to their

fellow workers.

Mere warning were totally inadequate for such serious indiscipline.

After the first warnings were ineffective, the only reasonable course
open to the employers was to suspend or dismiss the offending worker.
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It must have been obvious that this sort of undisciplined conduct would
expose their employees to the risk of injury

Hudson v Ridge Manufacturing Co. Ltd.

Smith v Crossley Bros
Facts
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Injury was done to P, a 16 year old apprentice, by inserting compressed

air in him, during horseplay

At first instance that the employers had not exercised adequate

supervision over the apprentices and that that lack of supervision
constituted negligence.

Held
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On appeal, it was held that the evidence disclosed no negligence on the

employers part because the injury to the plaintiff resulted from a
willful behavior which the employer had no reason to foresee.

Hawkins v Ian Ross (Castings) Ltd

Facts
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The C worked at a moulding site. The workspace became crowded

with mould boxes.

In an attempt to clear area he sought assistance of a 17-year-old Indian

worker who spoke imperfect English.

Misunderstanding the commands of C when moving the molten metal

caused it to be spilled and damaged the Cs foot.

C sued D

Held
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The fact that the untrained young man with indifferent English is a
member of a team may call for special precautions by the employer.

The fact that an unskilled labourer with an imperfect knowledge of

English was employed to carry molten metal imposed a higher
standard of care on the Ds both in the layout of the work and in the
steps to be taken to avoid accidents.

2. Adequate plant and equipment

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An employer must take the necessary steps to provide adequate plant and
equipment for his workers, and he will be liable to any workman who is
injured through the absence of any equipment which is obviously necessary or
which a reasonable employer would recognise as being necessary for the
safety of the workman.

United Estates Ltd v Durrant

Facts
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Cane farming company employed a sideman.

He suffered injuries when a chain dog broke suddenly and caused the
sideman to be thrown off the truck to the ground.

The chain dogs had been supplied by a third party, and the appellants
had no proper system for examining them to ensure that they were in
good working order.

Held
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The appellants had no proper system for examining the chain dogs to
ensure that they were in good working order.

It was not reasonable in the circumstances to rely upon the sidemen to

carry out checks on the condition of the chains and to take defective
ones out of service.

Morris v Point Lisas Steel Products Ltd

Facts
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C was employed as a machine operator at the Ds factory.

C was using a wire cutting machine when a piece of steel flew into his
right eye.

C had a complete loss of sight in that eye.

The Ds did not provide the C with goggles.

Held
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The Ds breached their common law duty to provide goggles.

Since the risk was obvious and not insidious the D ought to have made
goggles available.

The D should have also given firm instructions and made it a rule that
the goggles must be worn.
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The D should have also educated the workers because of the likely
probability of loss of sight in one or both eyes.

Sammy v BWIA
Facts
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The C was employed as a mechanic and was sent to repair a vehicle on

the airport ramp.

While attempting to start the vehicle the vehicle caught fire.

In attempting to put out the fire with a cloth, the C suffered burns.

No fire extinguishers were provided by the Ds

Held
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The Ds breached its common law duty to the C to take reasonable care
for his safety.

The D clearly exposed the C to an unnecessary risk when the fire

started on the vehicle. The D was under a duty to provide proper safety
appliances on these vehicles to safeguard the C in such an occurance.

Sharpe v Gibson Construction Ltd

Facts
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The C was a mason on Ds construction site in St Vincent.

Plaster went into the Cs eye and his eye was damaged as a result.

C had not supplied goggles.

Held
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C was under no duty to supply goggles for plastering work.

It was not the norm in the industry to supply goggles to masons doing
that type of work.

The employer discharges his duty to provide his employees with a safe
working environment when he does all reasonable employer could be
expected to do for the safety of his workers having regard to the degree
of risk posed to his workers by the nature of their work,

McGhee v NCB
Facts

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The C worked at the defendant's brick works. His normal duties did not
expose him to much dust but he was then asked to work on the brick
kilns in a hot a dusty environment.

The D had not provided facilities to wash off the dust after work.

C contracted dermatitis.

Held
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The D was in breach of duty in not providing washing and showering

facilities.

3. Safe system of work

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An employer must organise a safe system of working for his employees and
must ensure as far as possible that the system is adhered to.

Speed v Thomas Swift and Co Ltd

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A system of work includes:

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The physical layout of the job;

The sequence in which the work is to be carried out;

The provision of warning and notices;

The issue of special instructions

A system may be adequate for the whole course of the job, or it may have to
be modified or improved to meet the circumstances which arise.

Legall v Skinner Drilling (Contractors) Ltd

Facts
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The D company was engaged in oil drilling.

The C was employed by the D and one of his duties being the removal
of nuts and bolts from the rigs as part of a rigging down operation.

The C stood on an empty oil drum to remove a bolt 10ft above.

The drum troppled over and C fell and was injured

Held
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The Ds by failing to ensure that its workers used ladders to reach high
platforms and a failure to warn the C of the danger of standing on the
oil drum, was in breach of its common law duty to provide a safe
system of working.
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Bish v Leathercraft Ltd

Facts
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The C was operating a button-pressing machine in the Ds factory,

when a button became stuck in the piston.

While attempting to dislodge the button with Ds right index finger,

her elbow came into contact with the unguarded lever, which caused
the piston to descend and crush her finger.

Held
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The Ds were liable as they breached their common law duties to

provide adequate equipment and a safe system of work.

The Ds were in default since:

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The buttons had not been pre-heated;

Absence of the required 3 inch nail to dislodge buttons for Cs

use obliged the appellant to resort to the use of her finger which
exposed her to the risk of accidental touching of an unguarded
lever.

The lever was not provided with a guard which would have
most probably have prevented the accident which occurred.

Hurdle v Allied Metals Ltd - breach where no safe system of working was provided
where there was insufficient training and instructions for a particular job
Facts
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The 16 year old C was employed by the Ds a machine operator.

Without any prior prior training or instructions, C was put in charge of

a power press, setup to stamp out heart shapes for lockets.

Whilst the C was operating the press, her hand became trapped in the
machine and she was seriously injured.

Held
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The Ds were liable for their breach of duty of care in that no adequate
instructions and training had been given to the C.

Regard must be given to the age and inexperience of the C as well as

the potential risk involved.

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Allowance must be made for the imperfections of human nature but it

must also be remembered that when young people or trainees are
employed in a factory they should not be allowed to operate machinery
unless
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They have been fully instructed as to the dangers arising in

connection with it

Told the precautions to be observed

Received a sufficient training in work at the machine and had

adequate supervision by a competent and experienced person of
the machine.

4. Safe place of work

Kodilinye
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An employer has a duty to take care to ensure that the premises where his
employees are required to work are reasonably safe.

Duty exists on parts where the employee is authorised to enter.

It is greater than that of the duty of occupiers to visitors.

However, the duty is not absolute.

Before it was thought an employer owed no duty in respect of those premises

which he had no control. However, that is now dependent on the nature of the
premises.

Watson v Arawak Cement Co Ltd

Facts
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The C was sent to work on a third partys ship.

When leaving the ship the C well from an unlit walkway inside the
ship and sustained injuries.

Held
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D was liable on account of its failure to provide a suitable means of

egress from the ship and to instruct the C as to the method of leaving
the vessel.

The duty to provide a safe place of work does not come to an end
merely because the employee has been sent to work at premises which
are occupied by a third party and not the employers.
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The court may have to decide the question of fact.

General Cleaning Contractors Ltd v Christmas

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The duty remains throughout the course of his employment.

Wilson v Tyneside Window Cleaning Co

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The degree of care to be taken by the employer will vary according to the
circumstances.

The duty is there, whether the premises on which the workman is employed
are in the occupation of the master or of a third party.

What reasonable care demands in each case will no doubt vary.

Latimer v AEC - Liability discharged by taking reasonable steps

Facts
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A heavy rainstorm caused a flood at Ds factory.

Water drained away but left an oily film on the surface of the floor

The Ds attempted to get rid the effects of the flood, by spreading

sawdust on the floor, but owing to the large area there was insufficient
sawdust to cover the floor.

In the course of duty the C fell and was injured and contended that the
occupiers should have closed the factory.

Held/Notes
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Where a company had taken every step which an ordinary prudent

employer would have taken in the circumstances to secure the safety of
the workmen they would not be liable at common law.

There was no breach of duty.

There was no need to go to great expense to eliminate any possible risk

and thus there was no obligation to close the factory.

Nature of the Action

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Employers liablity is merely a special form of negligence and must establish:

1. The duty owed
2. Breach of that duty
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3. The D legal caused the resultant damage , and the damage was not too remote.

Ref McWilliams v Arrol - Where the C died as a result of not having a safety belt, D
did not provide the belt but argued C would not have used it anyway and even thought
there was a breach of duty, D was not liable by causation.

Work-related stress
Walker v Northumberland
Facts
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The plaintiff was employed by the defendant local authority as an area social
services officer from 1970 until December 1987. He was responsible for
managing four teams of social services fieldworkers in an area which had a
high proportion of child care problems. In 1986 the plaintiff suffered a
nervous breakdown because of the stress and pressures of work and was off
work for three months. Before he returned to work he discussed his position
with his superior who agreed that some assistance should be provided to lessen
the burden of the plaintiff's work.

Six months later he suffered a second mental breakdown and was forced to
stop work permanently. In February 1988 he was dismissed by the local
authority on the grounds of permanent ill health. He brought an action against
the local authority claiming damages for breach of its duty of care, as his
employer,

to take reasonable steps to avoid exposing him to a

health-endangering workload
Held
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Here it was reasonably foreseeable to an employer that an employee might

suffer a nervous breakdown because of the stress and pressures of his
workload, the employer was under a duty of care, as part of the duty to
provide a safe system of work, not to cause the employee psychiatric damage
by reason of the volume or character of the work which the employee was
required to perform.

Not reasonably foreseeable of the first mental health break down.

However, as to the second illness, the local authority ought to have foreseen
that if the plaintiff was again exposed to the same workload there was a risk
that he would suffer another nervous breakdown which would probably end
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his career as an area manager. The local authority ought therefore to have
provided additional assistance to reduce the plaintiff's workload even at the
expense of some disruption of other social work and, in choosing to continue
to employ the plaintiff without providing effective help, it had acted
unreasonably and in breach of its duty of care.

Sutherland v Hatton / Barber v Somerset

Defences
Smith v Baker
Facts
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The C sued his employers for injuries sustained while in the course of working
in their employment. He was employed to hold a drill in position whilst two
other workers took it in turns to hit the drill with a hammer. Next to where he
was working another set of workers were engaged in taking out stones and
putting them into a steam crane which swung over the place where the C was
working.

The C was injured when a stone fell out of the crane and struck him on the
head.

The D raised the defence of volenti non fit injuria in that the Claimant knew it
was a dangerous practice and had complained that it was dangerous but
nevertheless continued.

Held
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is not whether he voluntarily and rashly exposed himself to injury, but whether
he agreed that, if injury should befall him, the risk was to be his and not his
masters.

When, his acceptance or non-acceptance of the risk is left to implication, the

workman cannot reasonably be held to have undertaken it unless he knew of
its existence, and appreciated or had the means of appreciating its danger.

I am unable to accede to the suggestion that the mere fact of his continuing at
his work, with such knowledge and appreciation, will in every case necessarily
imply his acceptance. Whether it will have that effect or not depends, in my
opinion, to a considerable extent upon the nature of the risk, and the
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workmen's connection with it, as well as upon other considerations which
must vary according to the circumstances of each case.

ICI v Shatwell
Facts
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The Cs were brothers who were qualified shotfirers employed by the

defendant.

They had insufficient wire to test a circuit to allow them to test from a shelter.

Another worker had gone to fetch more wire but the brothers decided to go
ahead and test with the shorter wire.

The were injured by an explosion

The defendant raised the defence of volenti non fit injuria in that the brothers
had full knowledge of the risk and were acting against express instructions.

At trial the judge held that the defence of volenti could not apply where there
was breach of a statutory duty.

Held
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The Cs had deliberately acted in defiance of the employer's express

instructions in full knowledge of the risks.

The workers were under the statutory duty not the employer.

The employer had been instrumental in bringing in the statutory regulations

and ensured all workers were aware of them.

The D had also previously dismissed a worker for flouting the regulations.

Stapley v Gypsum Mines Ltd

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