AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the essential elements of the common law duty
■ Understand the ways in which the common law duty has been expanded
■ Critically analyse aspects of employer liability
■ Apply the law to factual situations and reach conclusions as to liability
Employers’ liability is a well-developed principle that is to be found in both the common law and statute. It developed initially in the nineteenth century through very limited statutory controls following the Industrial Revolution. The very first industrial safety law was Sir Robert Peel’s Health and Morals of Apprentices Act 1802.
Most often those controls applied only to children and sometimes to women and were aimed more at regulating employment practices than at providing legal rights for employees. The first Acts to protect adult male workers were the Factory Act 1833 (which created a Factory Inspectorate) and the Factory Act 1844 (which introduced the idea of fencing off dangerous machinery).
So it took a long time for civil liability to develop in the area, not until the Workmen’s Compensation Act 1897, and workers rarely had the means of suing or gaining compensation for the injuries that they sustained through negligent practices.
The nature of the development has also meant that the area is quite complex and involves consideration of both common law and statutory provision.
Employment was traditionally seen, as it still is, as a contractual relationship, based on freedom of contract, so no remedies were available in tort. Employees were free to negotiate their own contractual terms, at least in theory, so if no reference to industrial safety was made in the contract then no civil action was available.
In the nineteenth century there were three further major barriers to workers’ claims in respect of injuries sustained at work:
■ The defence of contributory negligence – this was a complete defence at that time so that if the employer could show that the employee was engaging in unsafe working practices then there could be no claim and this would be the case even though the worker had been directed to pursue those practices by the employer.
■ The so-called ‘fellow servant rule’ and the common law doctrine of common employment – where an employee was injured as the result of an unsafe practice of a fellow employee the employer could disclaim responsibility for that employee’s actions and there could be no claim against the employer (and there would be little point in claiming against the ‘fellow servant’ who would inevitably be a ‘man of straw’).
The common law was generally hostile to workers and applied these three defences rigorously. Gradually, however, their severity was limited:
■ In Smith v Baker  AC 325 the court accepted that volenti would only be available if the claimant freely accepted and understood the specific risk.
■ The Law Reform (Contributory Negligence) Act 1945 altered the character of the defence of contributory negligence making it a partial defence only affecting the amount of damages to be received rather than removing liability altogether as had formerly been the case.
■ Finally in Groves v Lord Wimbourne  2 QB 402 the ‘fellow servant’ rule was held not to be available as a defence to a breach of a statutory duty; and in the Law Reform (Personal Injuries) Act 1948 the defence was finally abolished altogether.
There were also further major positive developments in the law:
■ In Wilsons & Clyde Coal v English  AC 57 the court identified that the employer owed a personal and non-delegable duty of care towards his employees.
■ Employers became liable for defective plant and equipment in the Employers’ Liability (Defective Equipment) Act 1969.
■ The principle of the employer insuring workers against injury that was introduced in the Workmen’s Compensation Act 1897 in respect of a limited range of named occupations was at a later stage extended to include all employees by the Employers’ Liability (Compulsory Insurance) Act 1969.
Subsequent to all these developments there are in principle three means by which an employee might impose liability on an employer:
■ for a breach of a statutory duty, for example under the Health and Safety at Work etc Act 1974 or other regulatory provisions where they include civil liability (see Chapter 16);
■ for the tortious acts of another employee through the principle of vicarious liability (see Chapter 18);
■ for a breach of the employer’s personal non-delegable duty of care.
All three have been subject to significant development. Proving the complexity of the area in a claim for an injury at work the pleadings will very often involve all three and there is the added further complication of regulations generated by the EU Framework Directive on Health and Safety 89/391 which may also provide civil liability actions.
First, it is important to remember that the whole area of employer’s liability is complicated by virtue of there being not only basic common law duties but that these are interspersed with a huge number of statutory duties and regulatory provisions. Either might prove beneficial to a claimant since commonly with statutory duties, liability is strict or the burden of proof is reversed. Often also a common law duty is contained in any case within a statutory provision. For these reasons a claim is often a mixture of both, pleaded as alternatives.
With statutory duties there is the added complication of demonstrating that the statute does indeed provide a civil remedy (as seen in Chapter 16).
Besides this there is the added complication of EU law which, under Article 157 (formerly Art. 119) and Article 154 (formerly Art. 118A) TFEU, has the power to incorporate a wide range of employment duties, particularly in the field of industrial safety law.
The basic common law duty in essence derives from the judgment of Lord Wright in Wilsons & Clyde Coal Co Ltd v English. The basic duty is to take reasonable care for the safety of all employees while acting in the course of their employment.
Lord Wright identified the duty as personal and non-delegable and at the time saw the duty as having four key aspects:
■ the duty to provide competent staff as working colleagues;
■ the duty to provide safe plant and equipment;
■ the duty to provide a safe place of work;
■ the duty to provide a safe system of work.
As the law has developed there has also now been established a general common law duty to protect the health and safety of the worker. This duty extends not only to physical health and well-being but also to ensure the psychiatric health of the worker.
One significant fact that must be remembered is that these categories are quite simply stated and do not necessarily fully refect the complexities of the modern workplace. In this sense the separate duties can quite easily overlap. In any case the likelihood is that a claim that an employer has breached his duties towards an employee will likely contain elements of more than one duty. Besides this, as has already been indicated, there is likely to be overlap also with many of the statutory duties and, if there are civil remedies attached, the claim will possibly include a range of evidence of the employer’s breaches, both common law and statutory.
The duty to provide competent staff
It is clear that the employer must ensure that all employees are competent to carry out the duties they are required to undertake in their employment.
General Cleaning Contractors Ltd v Christmas  AC 180
Here a window cleaner was injured while cleaning sash windows, having been improperly instructed on the safest method of undertaking the work. The employer was held liable.
An employer must also ensure the good behaviour of all employees while at work. In this way an employer should not tolerate unsafe practices, including the playing of practical jokes that might cause harm to other employees. All unsafe practices should be dealt with and an employee who indulges in such practices should be disciplined and in extreme cases even dismissed.
Hudson v Ridge Manufacturing Co  2 QB 348
An employee was injured when a fellow employee well known for such behaviour carried out a practical joke on him. The employer was in breach of his duty and liable for failing to discipline the employee at fault and prevent him from repeating such activity and was held liable.
However, the employer may not be liable if he is unaware that the employee causing damage or injury is likely to behave in that way.
O’Reilly v National Rail & Tramway Appliances  1 All ER 499
Here labourers breaking up a disused railway line found what they believed to be an unex-ploded shell of some sort from the Second World War, some nine inches long and one inch in diameter. The claimant was injured when he followed the suggestion of work colleagues that he hit the object with a sledgehammer. One had said ‘Hit it: what are you scared of?’ The employer had no idea that his employees would be so silly and thus escaped liability for the severe injuries sustained by the claimant.
In modern times actions using this basic common law duty are rare because of the principle of vicarious liability. However, it may still be useful when the employee’s act causing injury or damage falls outside the scope of employment.
The duty to provide safe working conditions is now supplemented by successful actions under s3 Protection from Harassment Act 1997 – Green v DB Group Services (UK) Ltd  EWHC 1989 (Ch) (see 13.6.2) and Majrowski v Guy’s & St Thomas’s NHS Trust  UKHL 34 (see 18.3.1).
It also of course is an example of where vicarious liability applies within the employment. In recent times with the creation of the close connection test (see 18.3.3) the courts appear to have widened the scope of what the employer may be vicariously liable for. One aspect of this has been in the case of violent attacks on one employee by another.
Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs  EWCA Civ 25
This involves joined appeals both involving violent behaviour by employees towards other employees and whether this gives rise to vicarious liability. In the first a health assistant in a care home was telephoned at night while he was off duty asking if he would do an extra shift. The employee, who had a poor relationship with the manager who rang him, was drunk at the time, became angry and went back to work and attacked the manager who had called him. In the second an employee was reprimanded and given an instruction by a senior employee and the employee responded by pushing him into a table and injuring his back. The court held that in the case of the first there was no liability because the employee was not in the course of his employment. In the second it was held that there was a sufficiently close connection between the work and the employee’s reaction for there to be vicarious liability, since it was an instantaneous response, albeit a violent one to a legitimate instruction.
The duty to provide safe plant and equipment
The basic duty is that the employer must take care both to provide safe equipment and of course to properly maintain it.
Smith v Baker  AC 325
A quarry worker was hurt when stones fell on him from hoppers that crossed over the quarry bottom on a conveyor system. The employer was liable because the machinery was not properly maintained.
Lord Halsbury LC identified the position that the employee was faced with:
‘The question of law that seems to be in debate is whether… on occasion when the very form of his employment prevented him from looking out for himself, he consented to undergo this particular risk… I do not think the plaintiff did consent at all. His attention was on a drill, and while he was unable to take precautions himself, a stone was negligently slung over his head without due precautions against its being permitted to fall.’
The employer may need to train employees how to use equipment properly.
Mountenay (Hazzard) & Others v Bernard Matthews  (unreported)
Here the employee developed a clinical wrist problem as the result of continuously handling dead poultry on a production line. There had been no attempt to rotate work to prevent workers constantly using the same wrist actions or to educate workers to the natural risks of the work, so the employer was liable.
However, the employer can still avoid liability if he actually provides adequate equipment but the employee misuses the equipment or fails to make proper use of it.
Parkinson v Lyle Shipping Co Ltd  2 lloyd’s rep 79
Here an employee was badly burned while trying to light a boiler. There was no defect in the boiler. It was quite safe and the employee had been properly instructed in how to light it. So there was no liability.
The provisions of the Employers’ Liability (Defective Equipment) Act 1969 have now possibly superseded the common law duty in many respects. The Act has a seemingly precise definition of equipment. Section 1(3) defines ‘equipment’ as ‘any plant and machinery, vehicle, aircraft and clothing’. Nevertheless, even the Act itself has been subject to conflicting interpretation.
Coltman v Bibby Tankers  AC 276
In this case the Court of Appeal held that an injury sustained because of a defect in the hull of a ship was not actionable, not falling within the defInition. The House of Lords later reversed this and accepted that the defInition within the Act could include the circumstances of the case.
As with all statutory provisions the defInitions within sections of Acts may be challenged and the court will be called on to interpret. This may lead to some surprising results.
Knowles v Liverpool City Council  ICR 21
In this case the court found no problem in bringing a kerbstone within the defInition for the purposes of imposing liability under the Act. The employee had been injured because of the negligence of the council in failing to ensure that kerbstones were not raised and it was liable as a result of the broad interpretation accepted by the court.
The duty to provide a safe place of work
The general duty here is to take all steps that are reasonably practicable to ensure that premises are safe.
Latimer v AEC  AC 643
An employee was injured when slipping on a greasy patch on the factory fLoor following food damage. The employer was not liable, having done everything practicable to ensure that the fLoor was safe for use.
Since many forms of work depend on employees being mobile, the duty may also extend to premises other than the employer’s own premises.
Wilson v Tyneside Window Cleaning Co  2 QB 110
Window cleaners were injured while working on a client’s premises. The employer had done everything within his capability to ensure that the men were safe so could not be liable.
It is also true, however, that most industrial premises, if not other places of work, are potentially hazardous. Where the employee exercises a particular skill or enjoys specifIc expertise liability may be avoided where the worker has failed to take account of his own safety. All people with a skill are expected to have an awareness of the risks that are associated with exercising that particular skill.
Roles v Nathan  1 WLR 1117
Chimney sweeps were killed by fumes when they were cleaning flues in an industrial chimney stack while boilers under the chimney were still alight. Their own expert knowledge should have alerted them to the dangers, and claims for their deaths failed.
Lord Denning explained the position:
‘These chimney sweeps ought to have known that there might be dangerous fumes… and ought to have taken steps to guard against them. They ought to have known that they should not attempt to seal up the sweep hole whilst the fire was still alight. They ought to have had the fire withdrawn… they ought not to have stayed in the alcove too long when there might be dangerous fumes about. All this was known to these two sweeps; they were repeatedly warned about it, and it was for them to guard against it.’
One final point is that since employers very often will be in control of the premises within which they operate there may also be liability under the Occupiers’ Liability Act 1957 (see Chapter 7).
The duty to provide a safe system of work
There are two key aspects to the duty:
■ the creation of a safe system in the first place;
■ a proper implementation of the system.
It is a question of fact in each case whether the work requires that a system is necessary and should be devised for safety purposes or whether safe practices should be obvious to the employee.
The employer is not able to rely on an unsafe practice merely because it is a common practice.
Re Herald of Free Enterprise, Independent, 18 December 1987
It was irrelevant that it was not unusual for bow doors to be left open on roll-on roll-off ferries when entering or leaving port. Vessels could and did capsize as the result of such a practice.
The general duty is to provide an effective system of work which is sufficient to meet any foreseeable dangers.
General Cleaning Contractors Ltd v Christmas  AC 180
Holding on to the sill and without wedges while cleaning sash windows was clearly an unsafe system, although it was the one that had been explained to the employee by his immediate superior. In the event the sash cord failed and the window fell on to the window cleaner’s hands, leading to the injuries and liability.
Inevitably in certain types of employment there are actual dangers presented by the nature of the work or by the people with whom the employee has to work. If the employer fails to operate systems to effectively avoid these dangers then the employer will be liable.
Cook v Bradford Community NHS Trust  EWCA Civ 1616
Here the employee worked in a psychiatric ward and was assaulted by a violent patient which in itself was a foreseeable risk. Because the systems in place failed to adequately address this risk the employer was liable.
The duty is also not just to devise the system but may also be to ensure that the system is carried out. A safe system is only safe if it is in fact followed. Thus, for instance, there is no point in an employer possessing safety equipment if employees are not provided with it.
Bux v Slough Metals  1 All ER 262
An employee was provided with safety goggles but would not use them because he claimed that they misted up. The employer knew of this and when the employee was injured by a splash of molten metal the employer was liable for failing to ensure that the goggles were worn.
Again it is insufficient that an employer claims to have created a safe system if the employees are unaware of it. On this basis an employer might still be liable for a failure to warn of dangers inherent in the work.
Pape v Cumbria CC  3 All ER 211
The employer was liable here for failing to warn that not wearing gloves might lead to dermatitis as a result of continuous contact with irritants.
The advances in modern technology and its effect on working practices may also have an impact on working conditions. In the case of use of VDUs for instance there are a range of provisions under regulations requiring safe working practices. The common law also demands that the systems for using such equipment should not damage the health and safety of the employee.
Alexander and Others v Midland Bank plc  ICR 464
Here employees worked under high pressure processing and continuously inputting information into computer databases. The employees successfully complained that the employer had consistently increased the work rate demanded and that as a result of unsafe practice they had suffered muscular injuries.
Where the employment involves contact with the public this in itself can very often present a potential hazard to the employee. The employer may well be expected to operate a system of work where the employee’s safety was not unnecessarily threatened by public contact.
Rahman v Arearose Ltd  3 WLR 1184
A restaurant worker was violently assaulted and seriously injured by customers. The employer was liable because it was identified that other members of staff had also been assaulted, the employer was aware of this and had not introduced any effective system to prevent it.
Much of the duty here has probably now been superseded, for example by the duty to undertake risk assessment under the ‘six pack’ and other regulatory requirements on an employer.
One possible recent development of the duty is to ensure that the system of work does not cause undue stress to the employee.
Walker v Northumberland CC  1 All ER 737