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Worksheet 1
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
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
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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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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1. Competent Staff
Ifill v Rayside Concrete Works Ltd. - skylarkers
Facts
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Held
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Douglas CJ:
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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
Held
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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.
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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.
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.
C was using a wire cutting machine when a piece of steel flew into his
right eye.
Held
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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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In attempting to put out the fire with a cloth, the C suffered burns.
Held
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The Ds breached its common law duty to the C to take reasonable care
for his safety.
Plaster went into the Cs eye and his eye was damaged as a result.
Held
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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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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.
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.
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.
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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Held
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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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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.
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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.
When leaving the ship the C well from an unlit walkway inside the
ship and sustained injuries.
Held
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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 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.
Water drained away but left an oily film on the surface of 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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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,
health-endangering workload
Held
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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.
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.
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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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 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 workers were under the statutory duty not the employer.
The D had also previously dismissed a worker for flouting the regulations.
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