Tort

EMPLOYERS' LIABILITY

The basis of the liability of an employer for negligence in respect

of injury suffered by his employee during the course of the
employee's work is two-fold:

He may be liable for breach of his personal duty of care which

he owes to each employee under the common law and or under
statute

He may be vicariously liable for breach by one employee of the

duty of care which that employee owes to his fellow employees.
A.

The Employer's Common Law Duties

These are essentially implied terms of the contract of

employment "It is quite 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 condition, and so to carry on his
operations as not to subject those employed by him to
unnecessary risk ..." per Lord Herschell in Smith v Baker [1891]
A.C. 325, 362.
Nature of Employers Duty
SPRING APPELLANT AND GUARDIAN ASSURANCE PLC. AND OTHERS
RESPONDENTS:The plaintiff, who was an appointed company representative of the
first defendants for the purpose of selling their investment products, was dismissed
from the position of sales director (designate) and office manager by the second
and third defendants who had been taken over by the first defendants, a subsidiary

company of the fourth defendants. The plaintiff then sought to sell the products of
another company. Under the rules of the regulatory body Lautro, that company was
required to seek, and the first defendants to supply, a reference for the plaintiff. In
consequence of the unfavourable reference supplied the company refused to
appoint the plaintiff as a company representative. In an action by the plaintiff for
damages, the judge held that the defendants had been under a duty of care to the
plaintiff, that the reference given had constituted a negligent misstatement and that
the defendants were accordingly liable to the plaintiff in negligence, but he
dismissed the plaintiff's claims based on malicious falsehood and breach of
contract. The Court of Appeal allowed an appeal by the defendants and dismissed a
cross-appeal by the plaintiff.On appeal by the plaintiff on the issues of negligence
and breach of contract:-Held, allowing the appeal (Lord Keith of Kinkel dissenting),
(1) (per Lord Lowry, Lord Slynn of Hadley and Lord Woolf) that an employer who
gave a reference in respect of a former employee owed that employee a duty to
take reasonable care in its preparation and would be liable to him in negligence if he
failed to do so and the employee thereby suffered economic damage; that the
imposition of such a liability was not contrary to public policy on the ground that it
might inhibit the giving of full and frank references; that the fact that in an action
for defamation or injurious falsehood based on an inaccurate reference the
employer would have a defence of qualified privilege did not bar an action by the
employee in negligence where no such defence was available; and that rule 3.5(2)
of the Lautro rules did not preclude a duty of care being owed by the employer to
the employee
CHARLTON (plaintiff) v. THE FORREST PRINTING INK CO LTD (defendants):
The plaintiff was the chief chemist and one of the three managers at the
defendants' Barking factory. He claimed damages for injuries suffered when he was
attacked by robbers while engaged in collecting wages to pay the company's
workforce.
The defendants' head office is in Grays Inn Road. Until 1974, wage packets were
collected in Grays Inn Road and taken to Barking by mini-cab. In 1974, however, the
wages were snatched from another of the defendants' managers. The company's
managing director reviewed the situation and decided that the solution was to
collect the wages for the Barking employees from a bank in Barking and have the
wage packets made up in the company's Barking office. The plaintiff was one of the
managers with responsibility to collect the wages. In February 1977, he was
attacked by bandits who smashed a bottle of ammonia in his face, causing severe
damage to his sight.
Mr Charlton claimed damages from the employers, alleging a breach of their duty of
care. The case was heard on the question of liability only, questions of quantum of
damages being deferred due to the uncertain state of Mr Charlton's sight.The High
Court, Queen's Bench Division (Mr Justice Forbes) on 16.10.78 upheld the plaintiff's
claim and found the defendants liable to him in damages.

The High Court held: The defendant employers were liable to the plaintiff employee
in damages for the injuries suffered by him when he was attacked by robbers while
engaged in collecting wages to pay the company's workforce.An employer is under
a duty to take reasonable care to see that his employees are not subjected to any
unnecessary risks of injury, including the risk of injury by criminals. This duty (of an
employer) is to take sensible precautions to protect his workmen if they are
involved in tasks which may be dangerous; it is not, inevitably, to employ
independent contractors to carry out dangerous tasks so that his own employees
are removed from the area of risk. Thus, it could not be held as a matter of principle
that the risk of attack by a robber is such that employers who have sums of money
to move to or from a bank ought reasonably to employ professional security firms to
carry out this task rather than entrusting it, with suitable precautions, to their own
employees. Whether an employer is negligent if he does not employ a professional
security firm is a matter of fact and degree in each case. Although there may be a
figure above which it would be only sensible to entrust the collection of wages to
specialists, it could not be held on the evidence that the defendants' payroll of
around 1500 per week was above the necessary mark.
In the present case, the defendants had reviewed their policy in 1974 following a
wages snatch. Any reasonable employer with the history of the defendants should
have realised that for a virtually trivial expenditure the risk of injury to their
employees could have been eliminated through employing a professional form to
collect wages. The defendants had earlier investigated the idea of employing a
professional firm and the difficulties which had caused them to reject the idea had
been eliminated some three years previous to the attack on the plaintiff. In failing to
so employ an outside firm, in the specific circumstances of the present case, the
defendants failed in the duty of care they owed to the plaintiff. Although the
defendants had not neglected the risk they did not take reasonable steps to
eliminate it. This failure was the cause of injury to the plaintiff and the defendants
were accordingly liable to him in damages.
Nottage v Super Value Food Stores Ltd: Here, armed robbers shot and injured
the plaintiff, who was employed by the defendants as a store manager, when he
went to open the defendants supermarket one morning. Strachan J held that the
defendants were in breach of their duty to take reasonable precautions to protect
the plaintiff,155 such as by providing a security officer to accompany the plaintiff at
opening times, since they did foresee that there would be armed robbers at their
food stores. An aspect of the employers common law duty to provide a safe place
of work.
They may not have known the hour or the day, but they certainly foresaw that there
would be robberies. There had been in the past, and they anticipated that there
would be in the future. Strachan J continued: Since Dorset Yacht Co Ltd v Home
Office,[156] as Lord steyn observed in Marc Rich and Co AG v Bishop Rock Marine
Co Ltd (The Nicholas H),[157] it is settled law that the elements of foreseeability

and proximity as well as considerations of fairness, justice and reasonableness are

relevant to all cases of negligence, whatever the nature of the harm sustained by
the plaintiff. This, among other things, provides in my view the answer to a real
concern that Mr Ward had about the effect of a conclusion that the defendant was
liable. As he saw it, an obligation to take precautions against criminal acts would be
simply too burdensome for many small operators; indeed, if I understood him
correctly, even the cost of leaving the car park lights on was considered too onerous
for those concerned in the present case. Cost is a relevant factor and a court will
have regard to it in the context of fairness, justice and reasonableness. The point
is, however, that profitability is not invariably linked to scale and there are, apart
from cost, other relevant and material considerations, for example, that the system
of work of the small operator is not likely to be substantially the same as Super
Values. Here, as I see it, the employee was at the material time performing a duty
under circumstances which, in the absence of appropriate precautions, amounted to
negligence by omission on the part of his employer.
Waters v Commissioner of Police (2000) Claimant police officer raped by fellow
officer whilst off duty. She alleged, among other things, that the police had
negligently failed to deal properly with her complaint but allowed her to be
victimized by fellow officers
The claim against the Commissioner for breach of personal duty (although the acts
were done by those engaged in performing his duty) should not be struck out
The Courts have recognised the need for an employer to take care of his employees
quite apart from statutory requirements. Lord Slynn did not find it possible to say
that this was a plain and obvious case that (a) no duty analogous to an employer's
duty can exist; (b) that the injury to the plaintiff was not foreseeable in the
circumstances alleged and (c) that the acts alleged could not be the cause of the
damage. Could it be said that it was not fair, just and reasonable to recognise a duty
of care? Despite reference to Hill and Calveley, Lord Slynn did not consider that
either of these cases was conclusive against the claimant in the present case. Here
there was a need to investigate detailed allegations of fact.
Crossley v Faithful and Gould Holdings Limited,
Workers' economic well-being: Following a nervous breakdown, Crossley went on
sick leave and never returned to work. He was entitled to full salary for up to six
months absence. Pay thereafter was at the company's discretion. He was also a
member of the employer's long-term disability insurance scheme, entitling him to
certain benefits while he remained in the company's employment.
He informed the company that he wished to apply for early retirement on health
grounds. The company requested a resignation letter stating that he would retire
with effect from 6 June 1997. Crossley sent this letter in July, but backdated it to

May. He ceased being entitled to disability scheme benefits. The insurers continued
to pay benefits for a further year, but refused to continue after that date.
Crossley sued for breach of an implied term of the employment contract requiring it
to take reasonable care for his economic well-being, by asking him to submit a
resignation letter knowing that this would seriously prejudice his entitlement to
benefits under the scheme, and by failing to warn him of the effect his resignation
would have on his entitlement to benefits.
His claim and appeal were dismissed. There was no duty to give staff financial
advice on their benefits, or to generally safeguard their economic well-being.
C. The Employers Common Law Duties
Smith v Baker & Sons [1891]
The Claimant 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 Claimant was working.
The Claimant was injured when a stone fell out of the crane and struck him on the
head. The Defendant 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. At trial the jury found for the Claimant. The
Defendant appealed and the Court of Appeal allowed the appeal holding that the
Claimant was precluded from recovering as he had willingly accepted the risk. The
Claimant appealed to the House of Lords.
The appeal was allowed. The Claimant may have been aware of the danger of the
job, but had not consented to the lack of care. He was therefore entitled to recover
damages.
Lord Watson:
"In its application to questions between the employer and the employed, the maxim
as now used generally imports that the workman had either expressly or by
implication agreed to take upon himself the risks attendant upon the particular
work which he was engaged to perform, and from which he has suffered injury. The
question which has most frequently to be considered 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, as is commonly the
case, 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. But
assuming that he did so, 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 workman's connection with it, as well as upon other considerations which must
vary according to the circumstances of each case."
Wilsons and Clyde Coal Co Ltd -v- English; HL 1938:The employer had
entrusted the task of organising a safe system of work to an employee as a result of
whose negligence another employee was injured. The employer could not have
been held liable for its own negligence, since it had taken all reasonable care in
entrusting the job to a competent employee, nor could it have been held liable
vicariously since common employment would have been a defence.
Held: The desire to escape the consequences of the doctrine of common
employment might justify the courts imposing a non-delegable duty of care. The
employer was liable for breach of a personal duty to see that care was taken by the
person whom it appointed to organise the system of work. The employers failure to
provide a safe system of work was held to constitute a failure by it to discharge the
personal non-delegable duty to provide a safe system. Fundamental obligations of a
contract of employment, such as the duty to take reasonable care for the safety of
an employee, constitute rights under a contract of employment and not merely
rights in connection with it.
Lord Wright said that the obligation owed by an employer to his employee was not
discharged by entrusting its fulfilment to employees, even though selected with due
care and skill. The (non-delegable) obligation was threefold: the provision of a
competent staff of men, adequate material and a proper system and effective
supervision, and: What the Court of Appeal have said amounts to reducing the
three heads of duty to one only that is, to engage competent employees of the
higher grades and then everything else may be left to them. If that is done, the
employers, it seems, will be free from further responsibility. Those whom they have
engaged, if chosen with due care and skill, may appoint any other employee, may
deal with the provision of paint and material, may determine the system of work.
However negligently they may act and however dangerous the results of what they
do may be to the workpeople, the employers on this view will be free from liability.
The employee will have no remedy against the employer. His only remedy will be
against his fellow-employee, which will be difficult to establish and in all probability
worthless.
Davie -v- New Merton Board Mills Ltd; 1959
The employer provided an employee with a simple metal tool with no apparent
defect, which had, in fact, been manufactured to excessive hardness, as the result
of negligent heat treatment by the manufacturer. That was a defect not
uncoverable, other than by testing of a kind which an employer could not

reasonably have been expected to undertake, before issuing the tool to an

employee.
Held: In those circumstances, the employer was not liable to the employee for the
consequences of the manufacturers negligence.
Lord Simonds said that the employers were not in breach of a duty to provide safe
plant and equipment to their employees where they purchased tools from wellknown makers which subsequently were revealed to be defective, but were entitled
to assume they were proper for use.
McDermid v Nash Dredging and Reclamation Co Ltd
Safe system of work was not operated
HOUSE OF LORDS
A system whereby the plaintiff would give a double knock with his hand on the
wheelhouse when it was safe for a tug on which he was working to move could not
be a safe system of work unless it was operated. Accordingly, when the captain of
the tug had moved it without waiting for the signal, causing the plaintiff injury, the
plaintiff's employers were liable to him in negligence.
They were not, as a wholly owned subsidiary of the company owning the tug, a
'person interested in' the tug within the meaning of section 3(1) of the Merchant
Shipping (Liability of Shipowners and Others) Act 1958 and were accordingly not
entitled to limit their liability.
The House of Lords so held dismissing an appeal by the employers, Nash Dredging
and Reclamation Co Ltd, from the Court of Appeal (Lord Justice Fox, Lord Justice
Parker and Lord Justice Neill) (The Times April 17, 1986; ([1986] 2 All ER 676, [1986]
QB 965) who had dismissed the employers' appeal from Mr Justice Staughton, who
had held that they were liable to the plaintiff, Mr Jamie McDermid, but had allowed a
cross-appeal from the judge's decision that the employers were entitled to limit the
damages to 43,893 under the provisions of the Merchant Shipping Acts 1894 to
1984.
LORD BRANDON said that the employers were a wholly owned subsidiary of a Dutch
dredging company (Stevin). They had been together engaged in dredging a fiord at
Lulea in Sweden. A tug, the Ina, owned by Stevin, had been used.One of the two
captains of the tug had been a Captain Sas, employed by Stevin. The plaintiff's task
as deckhand had included untying the ropes mooring the tug to the dredger.

Having untied the ropes, he would give two knocks on the side of the wheelhouse to
indicate to Captain Sas, who did not speak English, that the ropes were both on
board.
On the day of the accident, he had been untying the ropes when Captain Sas had
put the engine astern prematurely and started to move the tug away from the
dredger. The plaintiff's left leg had been caught in a rope and seriously injured.
An employer owed his employee a duty to exercise reasonable care to ensure that
the system of work provided for him was a safe one. That had two aspects; the
devising of the system and its operation.
The duty had been described as personal or non-delegable, which meant that, if it
was not performed, it was no defence for the employer to show that he had
delegated its performance to a person, whether his servant or not, whom he had
reasonably believed to be competent to perform it. Despite such delegation, he was
liable for the non-performance of the duty.
The employers had delegated both the devising and the operating of the system for
unmooring the Ina to Captain Sas. An essential feature of such system, if it were to
be a safe one, was that Captain Sas would not work the tug's engines until he knew
that the plaintiff had completed unmooring the tug.
His Lordship agreed with the Court of Appeal that there had been scope for finding
that the system of the plaintiff giving two knocks on the sheelhouse had not been a
safe one.
Assuming, however, in the absence of any contrary finding by the judge, that it had
been safe, the crucial point was that, on the occasion in question, Captain Sas had
not operated it.
He had put the tug's engines astern at a time when the plaintiff had not given the
two knocks.
For that failure by Captain Sas to operate the system that he had devised the
employers were personally, not vicariously, liable to the plaintiff.
His Lordship could not accept the employers' contention that Captain Sas's
negligence had not been negligence in failing to operate the safe system that he
had devised but rather casual negligence in the course of operating such systems,
for which the employers, since Captain Sas had not been their servant, were not
liable.
Captain Sas's negligence had been not casual but central. It had involved
abandoning the safe system and operating in its place a manifestly unsafe system.
In the result there had been a failure by the employers in operating a safe system of
work.

In his Lordship's opinion, that expression meant a person having a legal or equitable
interest in the ship. The whole legal and equitable interest in the Ina had, on the
evidence, been in Stevin.

A competent staff of workers

Ifill v Rayside Concrete Works Ltd (1981) 16 Barb LR 193, High

Court, Barbados
The plaintiff and J were employed by the defendants as labourers. They were both
known by the defendants to have a propensity for skylarking at work, and had
beenwarnedonatleasttwooccasionsnottodoso.Oneday,Jpickedtheplaintiffup and
cradled him in his arms, saying he was light as a baby and singing Rock-a- byebaby. As J carried the plaintiff forward, he tripped over a pipeline and both J and the
plaintiff fell into a cement mixer, which was only partly covered, both of them
sustaining injuries. The plaintiff brought an action against the defendants for: (a)
breach of statutory duty; and (b) negligence at common law. Held:
(a) the cement mixer was a dangerous part of machinery within what was then s
10(1) of the Factories Act, Cap 347, and the defendants were in breach of their
absolute statutory duty to fence it securely; (b) the defendants were in breach of
their duty at common law not to expose the plaintiff to risks of danger emanating
from indisciplined fellow employees, and were liable in negligence; (c) the plaintiff
was guilty of contributory negligence and his damages would be reduced by 50%.
Douglas CJ said:
It is not in dispute that the concrete works operated by Rayside constitutes a factory
within the meaning of the Factories Act, Cap 347. Thus, s 10(1) of the Act places on
Raysidecertainobligationsinregardtothefencingofdangerousmachinery.Thesection
provides: Every dangerous part of any machinery shall be securely fenced, unless it
is in suchapositionorofsuchconstructionastobesafetoeverypersonemployedor
working on the premises as it would be if securely fenced
Providedthat,insofarasthesafetyofadangerouspartofanymachinerycannot by reason
of the nature of the operation be secured by means of a fixed guard,
therequirementsofthissub-sectionshallbedeemedtohavebeencompliedwith if a
device is provided which automatically prevents the operator from coming into
contact with such part. The section imposes an absolute obligation to fence. As
Viscount Simonds observed in Summers (J) and Sons Ltd v Frost[32] in relation to s
14(1) of the Factories Act 1937 of the UK, which is identical in its terms with s 10(1)
of Cap 347: the proviso to s 14(1) affords a strong indication that the substantive
part of it imposes an absolute obligation: for, unless its effect is absolutely to
prevent the operator from coming into contact with a dangerous part of the

machine, there
wouldbelittlemeaningintheprovisionofanalternativewhichhasjustthateffect.

Smith v Crossley Brothers[1951]:Two motor mechanics played a practical joke on

their colleague, Smith. They removed his trousers, inserted a rubber hose into his
anus and filled him with compressed air. He suffered severe internal injuries.
Held: The employer was not liable for the injuries. The two mechanics had no
history of practical jokes and the employer therefore had no reason to suspect that
they were a source of danger to colleagues. The incident had not therefore been
predictable or preventable by anything the employer could have done. (Note that
the employer was not vicariously liable either as the mechanics were on a "frolic of
their own")
Hawkins v Ross Castings Ltd[1970]: Mr Hawkins was badly injured when a
colleague accidentally spilled molten metal onto his legs. The colleague was a 17year-old Asian youth who spoke very little English and had not been trained in the
task of carrying and pouring molten metal.
Held: The employer was liable for Hawkins' injuries. He was in breach of his duty of
care as he had failed to provide a competent fellow employee to work with him.
Adequate plant and equipment
McGhee v National Coal Board [1973] 1 WLR 1 House of Lords
The claimant 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 defendant was in breach of duty in not providing washing
and showering facilities. The claimant thus had to cycle home still covered in the
brick dust. The claimant contracted dermatitis. There were two possible causes: the
brick dust he was exposed to during the course of his employment which was not
attributable to a breach of duty and the brick dust he was exposed to on his journey
home which was attributable to a breach. The defendant sought to distinguish
Wardlaw's case by arguing that it was proved that every particle of dust inhaled
played its part in causing the onset of the disease whereas in this case it is not
proved that every minor abrasion played its part.
Held: The claimant only had to demonstrate that the dust attributable to the breach
of duty materially increased the risk of him contract dermatitis.
Lord Salmon:My Lords, I would suggest that the true view is that, as a rule, when it
is proved, on a balance of probabilities, that an employer has been negligent and
that his negligence has materially increased the risk of his employee contracting an
industrial disease, then he is liable in damages to that employee if he contracts the

disease notwithstanding that the employer is not responsible for other factors which
have materially contributed to the disease.
Robb -v- Salamis : The claimant was injured working for the defendants on a
semi-submersible platform. He fell from a ladder which was not secured properly. He
alleged a breach of the Regulations. The defendant denied any breach and asserted
that the claimant had contributed to the accident by his negligence.
Held: The employees appeal succeeded. The aim in both regulations is the same. It
is to ensure that work equipment which is made available to workers may be used
by them without impairment to their safety or health: see article 3(1) of the Work
Equipment Directive. This is an absolute and continuing duty, which extends to
every aspect related to their work. The employer had a duty to anticipate accidents.
The accident was caused by the defenders failure to comply with the regulations,
but the pursuer contributed to the extent of 50%.
Fytche -v- Wincanton Logistics Plc; CA 12-May-2003
A milk lorry driver was issued with protective boots. Stuck in a snowstorm, he tried
to dig himself out. The boots leaked and he suffered frostbite.
Held: The compulsory element under the regulations is taken into account in the
standard of care which the employer must observe to comply with his duty of care
to the employees. The claimant recognised that he could not succeed in proving a
breach of the duty of care, and his claim failed.
Waller LJ said: I stress the standard of care will be a high one. Where the employer
is asking the employee to wear particular footwear or clothing in place of the
employees own, I would suggest that rightly the court would impose a high duty on
an employer. But in the circumstances of this case the tiny hole was undiscoverable
either by the employers or the claimant and the findings of the recorder negatived
any such breach.
Safe System of Working
Legall v. Skinner Drilling Contractors Ltd., the defendant company was
engaged in oil drilling. The plaintiff was employed as a derrick man, one of his
duties being the removal of nuts and bolts from the rigs as part of the rigging
down operation. In order to remove a bolt from a rig platform 10 feet from the
ground the plaintiff was given an empty oil drum to stand on. The drum toppled
over and the plaintiff fell to the ground and was injured. It was held that the
defendant. By failing to ensure that its workers used ladders to reach high platforms
and to warn the plaintiff of the danger of standing on the oil drum, was in breach of
its Common Law duty to provide a safe system of work. Another example of failure
to provide a safe system of work is the Jamaican case of Bish v. Leathercraft Ltd.
where the plaintiff was operating a button-pressing machine in the defendants

factory, when a button became stuck in the piston. While attempting to dislodge
the button with her right index finger, the plaintiffs elbow came into contact with
the unguarded lever, which caused the piston to descend and crush her finger. The
Jamaican Court of Appeal held that the defendants were in breach of their Common
Law duties to provide adequate equipment and a safe system of work, in that: (a)
the button had not been preheated, which caused it to become stuck; (b) no 3 inch
nail to dislodge the button was provided for the plaintiffs use, which resulted in her
having to use her finger; and (c) the lever was not provided with a guard, which
would have probably prevented the accident. Hurdle v. Allied Metals Ltd. is another
good example of an employers failure to provide a safe system of working and
effective supervision. In that case, the plaintiff, a 16-year-old girl, was employed by
the defendants as a machine operator. Without any proper training or instruction,
she was put in charge of a power-press, which was set up to stamp out heart shapes
for lockets. While the plaintiff was operating the power-press, her hand became
trapped in the machine and she was seriously injured. She sought damages in
negligence on the ground that the defendants failed to provide a safe system of
work. The defendants were held to be in breach of their duty of care, in that no
adequate instruction and training had been given to the plaintiff, having regard to
her age and inexperience and the potential risk involved.
General Cleaning Contractors Ld -v- Christmas; HL 1953
It is the duty of the employer to consider the situation, devise a suitable system and
instruct his employees what they must do and to provide appropriate equipment. In
leaving it to individual workmen to take precautions against an obvious danger, the
employers had failed to discharge their duty to provide a reasonably safe system of
work.
Lord Oaksey said: In my opinion, it is the duty of an employer to give such general
safety instructions as a reasonably careful employer who has considered the
problem presented by the work would give to his workmen. It is, I think, well known
to employers, and there is evidence in this case that it was well known to the
appellants, that their workpeople are very frequently, if not habitually, careless
about the risks which their work may involve. It is, in my opinion, for that very
reason that the common law demands that employers should take reasonable care
to lay down a reasonably safe system of work. Employers are not exempted from
this duty by the fact that their men are experienced and might, if they were in the
position of an employer, be able to lay down a reasonably safe system of work
themselves. Workmen are not in the position of employers. Their duties are not
performed in the calm atmosphere of a board room with the advice of experts. They
have to make their decisions on narrow window sills and other places of danger and
in circumstances in which the dangers are obscured by repetition.
The risk that sashes may unexpectedly close, as the sashes in this case appear to
have done, may not happen very often, but when it does, if the workman is

steadying himself by a handhold, his fall is almost certain. If the possibility is faced
the risk is obvious. If both sashes are closed there is no longer the handhold by
which the workman steadies himself. If either sash is kept open the handhold is
available and, on the evidence in this case, is, in my opinion, reasonably safe. But
the problem is one for the employer to solve and should not, in my opinion, be left
to the workman. It can be solved by general orders and the provision of appropriate
appliances.
Lord Reid said: The question then is whether it is the duty of the appellants to
instruct their servants what precautions they ought to take and to take reasonable
steps to see that those instructions are carried out. On that matter the appellants
say that their men are skilled men who are well aware of the dangers involved and
as well able as the appellants to devise and take any necessary precautions. That
may be so but, in my opinion, it is not a sufficient answer. Where the problem varies
from job to job it may be reasonable to leave a great deal to the man in charge, but
the danger in this case is one which is constantly found, and it calls for a system to
meet it. Where a practice of ignoring an obvious danger has grown up I do not think
that it is reasonable to expect an individual workman to take the initiative in
devising and using precautions. It is the duty of the employer to consider the
situation, to devise a suitable system, to instruct his men what they must do and to
supply any implements that may be required.
In Qualcast (Wolverhampton) Ltd v Haynes [1959] C a thirty-eight year old
who had been a moulder all his working life was casting moulding boxes, the ladle
of molten metal which he was holding slipped, and some of the metal splashed on
to his left foot and, as he was not wearing protective spats or special boots, his foot
was injured. He lost because he was experienced and should have guarded against
the danger.

Bux v Slough Metals Ltd

In mid-1968 the plaintiff, a Pakistani with a limited command of English,
started employment in the die-casting foundry in the defendants' factory. His
work involved removing molten metal from a furnace by means of a ladle
and pouring it from the ladle into a die. On removing the molten metal the
plaintiff had to bring the ladle round by making a left turn and lowering the
ladle to the level of the die, and then stretch out between projecting pinion
handles used to open and close the die so that he could be in a position to
pour out the metal. He was trained for that work for some weeks and during
that time no goggles were provided or worn or instructed to be worn.
Furthermore none of the other workers wore goggles save one who wore
them over his spectacles. In March 1969 the new works director decided that

goggles should be purchased and supplied to all employees. Suitable goggles

were obtained, after consultation with the British Safety Council, and in April
a pair was handed to each of the 15 die-casters. Another Pakistani die-caster
handed a pair to the plaintiff saying, 'You must wear these when you work';
the plaintiff realised that they were being supplied to protect his eyes against
the possible splashing of hot metal. He tried them for a few days but found
that they hampered his work because they misted up 'every three or four
minutes'. Thereafter he did not wear them, telling the superintendent of the
foundry that they were useless. He asked whether there were better ones
available, but received no reply. On 2 February 1970, while in the act of
turning left from the furnace to the die, the ladle struck one of the pinions
with such force that some of the molten metal was thrown up into his eyes.
The plaintiff brought an action claiming damages for breach of the
defendants' statutory duty under reg 13(1)a of the Non-Ferrous Metals
(Melting and Founding) Regulations 1962 to provide suitable goggles, and for
negligence. The judge held that no breach of statutory duty had been
established but that negligence had been made out. He also found the
plaintiff guilty of contributory negligence by reason of his breach of reg
13(4)b of the 1962 regulations and therefore reduced the damages by 20 per
cent. The defendants appealed, and the plaintiff cross-appealed, the
defendants contending, inter alia, that if they had fulfilled their statutory
duty they were necessarily absolved from any breach of their common law
duty.

Regulation 13(1), so far as material, is set out at p 264 g, post

b
Regulation 13(4), so far as material, provides: 'Every person employed
shall make full and proper use of the equipment provided for his protection in
pursuance of paragraphs (1) of this Regulation, and shall without delay
report to the occupier, manager or other appropriate person any defect in, or
loss of, the same.'

Held (i) In every case it was a question of fact whether the statutory duty
was co-extensive with, or more or less extensive than, the common law duty.
The duty imposed on the defendants by reg 13(1) did not supersede the
common law duty of

[1974] 1 All ER 262 at 263

the employer for the regulation was silent as to the legal position where an
employer knew that the suitable goggles that he had provided were
consistently not worn by his men when engaged in work involving risk to
their eyes. That legal position was the same as it had been before the
regulations came into force. The question whether instruction, persuasion or
insistence with regard to the use of protective equipment should be resorted
to, depended on the facts of a particular case, one of those being the nature
and degree of the risk of serious harm liable to occur if the equipment were
not worn. In the circumstances the evidence showed that the plaintiff would
have worn the goggles if instructed to do so in a reasonable and firm manner
followed up by supervision; accordingly the defendants were in breach of
their common law duty to maintain a reasonably safe system of work by
giving the necessary instructions and enforcing them by supervision (see p
268 g and h, p 270 d and g to p 271 a and h, p 272 e and g, p 273 d and p
274 d and g, post).

(ii) A substantial degree of blameworthiness had, however, to be attributed

to the plaintiff in consequence of his own breach of statutory duty. His breach
was not merely technical; it was a substantial, though partly excusable,
cause of the accident. In the circumstances the appropriate degree of
blameworthiness was 40 per cent rather than 20 per cent and the
defendants' appeal would be allowed to that extent (see p 271 e g and h and
p 274 j to p 275 a, post).
Yorkshire Traction Company Limited v Walter Searby
(Court of Appeal - 19th December 2003)
Yorkshire Traction Company Limited, represented by Berrymans Lace Mawer
has successfully appealed against Leeds County Court judgment in Walter
Searby v Yorkshire Traction Company Limited (2003).Mr Searby was
employed by Yorkshire Traction Co. Ltd as a bus driver. At about 10.50 pm on
1st November 1998, he was assaulted by a passenger whilst sitting in the
drivers seat.It was argued on behalf of Mr Searby that there should have
been a screen to separate the driver from the passengers; that failure to
provide a screen was negligent and a breach of reg 5 of the Provision and
Use of Work Equipment Regulations 1992.

At first instanceThe trial judge found both negligence and a breach of

statutory duty. The judges findings were stated mainly in the context of
breach of statutory duty with emphasis on the word suitable but many
were relevant to the claim in negligence. The judge applied the following
test:
.... once a claimant establishes that his employer could have reasonably
foreseen conditions which represent a possible cause of injury and that the
conditions resulted in his injury he establishes a breach [of the regulation].
The conditions giving rise to the reasonably foreseeable risk of injury were
those where a driver of a bus on a route that was at least partly urban, at
times when passengers were most likely to be intoxicated, was not fitted
with a screen. In these conditions, the bus was not suitable. This was to
be contrasted with the situation on the same route at other times of the day
when the absence of a screen did not render the bus unsuitable because
the risk of an assault was sufficiently small.
The Court of Appeal decision
Lord Justice Pill gave the leading judgment and re-iterated that insofar as
the issue of negligence was concerned, the question was what conduct was
reasonably required in the particular circumstances (Daborn v Bath
Tramways Motor Co Ltd (1946)).
The circumstances are to be judged as at the date of the accident. The
employer owes a duty of care, the discharge of which may, on occasions,
involve initiatives independent of the workforce and disagreements with the
workforce in its exercise.
In this case, the attitude of the workforce and the absence of complaint,
whilst not determinative of whether particular precautions were required,
was a substantial factor. Experienced bus drivers, well organised in a union
represented on the companys safety committee could be expected to have
sensible and coherent views on what reasonably were appropriate conditions
in which to drive. Drivers had taken action to have screens removed where
present in buses purchased by the company. The facts showed the risk of
injury to the companys drivers from assault by passengers was, in 1998,
very low. The measure of risk, perceived disadvantages and the attitude of
the workforce was such that the failure to fit screens was not negligent and
the judge had sought to impose too high a standard of care. In dealing with

the question of whether there had been a breach of reg 5(3), in relating the
duty entirely to what was foreseeable, the judge had misstated the duty.
The Court of Appeal had considered the meaning of the word suitable in
Marks and Spencer plc v Palmer (2001) in relation to reg 12 of the Workplace
(Health Safety and Welfare) Regulations 1992. A consideration of the degree
of risk in the context of the particular circumstances against which the claim
was brought had to be made. The Regulation did not require complete and
absolute protection, therefore, liability was not established simply by
showing it was reasonably foreseeable that the absence of a screen may give
rise to a risk of injury.
In assessing suitability, a consideration of the degree of risk had to be made
which involved the same exercise as conducted to establish whether there
had been negligence. Here, the risk of injury to drivers in 1998 was very low,
the bus could not be considered unsuitable and there was no breach of the
Regulation.
Lord Justice Chadwick expressed the view that the trial judge had misstated
the duty imposed by the Regulation and this had led him to the wrong
conclusion.
Safe Place of Work
General Cleaning Contractors Ld -v- Christmas; HL 1953

It is the duty of the employer to consider the situation, devise a suitable

system and instruct his employees what they must do and to provide
appropriate equipment. In leaving it to individual workmen to take
precautions against an obvious danger, the employers had failed to
discharge their duty to provide a reasonably safe system of work.
Lord Oaksey said: In my opinion, it is the duty of an employer to give such
general safety instructions as a reasonably careful employer who has
considered the problem presented by the work would give to his workmen. It
is, I think, well known to employers, and there is evidence in this case that it
was well known to the appellants, that their workpeople are very frequently,
if not habitually, careless about the risks which their work may involve. It is,
in my opinion, for that very reason that the common law demands that
employers should take reasonable care to lay down a reasonably safe system
of work. Employers are not exempted from this duty by the fact that their

men are experienced and might, if they were in the position of an employer,
be able to lay down a reasonably safe system of work themselves. Workmen
are not in the position of employers. Their duties are not performed in the
calm atmosphere of a board room with the advice of experts. They have to
make their decisions on narrow window sills and other places of danger and
in circumstances in which the dangers are obscured by repetition.
The risk that sashes may unexpectedly close, as the sashes in this case
appear to have done, may not happen very often, but when it does, if the
workman is steadying himself by a handhold, his fall is almost certain. If the
possibility is faced the risk is obvious. If both sashes are closed there is no
longer the handhold by which the workman steadies himself. If either sash is
kept open the handhold is available and, on the evidence in this case, is, in
my opinion, reasonably safe. But the problem is one for the employer to
solve and should not, in my opinion, be left to the workman. It can be solved
by general orders and the provision of appropriate appliances.
Lord Reid said: The question then is whether it is the duty of the appellants
to instruct their servants what precautions they ought to take and to take
reasonable steps to see that those instructions are carried out. On that
matter the appellants say that their men are skilled men who are well aware
of the dangers involved and as well able as the appellants to devise and take
any necessary precautions. That may be so but, in my opinion, it is not a
sufficient answer. Where the problem varies from job to job it may be
reasonable to leave a great deal to the man in charge, but the danger in this
case is one which is constantly found, and it calls for a system to meet it.
Where a practice of ignoring an obvious danger has grown up I do not think
that it is reasonable to expect an individual workman to take the initiative in
devising and using precautions. It is the duty of the employer to consider the
situation, to devise a suitable system, to instruct his men what they must do
and to supply any implements that may be required.
Cook v Square D Ltd [1992] ICR 262
The plaintiff, an electronics engineer, worked for a company based in the UK.
He was sent on an assignment to complete the commissioning of a computer
control system in Saudi Arabia. His work there was carried out in a control
room housing the computers. The area had a specially constructed floor,
each tile being removable so that access could be obtained to the wires and
cables beneath. The employee, having almost completed his work on the

system, was instructing others on the use of the system, when he slipped as
a result of a raised tile that had been left unguarded and injured his knee.
It was held by the Court of Appeal that the employers had a duty, that could
not be delegated, to take all reasonable care to ensure the safety of the
employee whilst he was working overseas; that to hold the employers
responsible for the daily events on a site in Saudi Arabia, owned and
managed by reliable companies, lacked reality and that the circumstances
clearly established that the employers had not delegated their responsibility
and that the accident to the employee had not been caused by any breach of
duty on their part.

Per Farquharson LJ. It may be that in some cases where, for example, a
number of employees are going to work on a foreign site or where one or two
employees are called on to work there for a considerable period of time that
an employer may be required to inspect the site and satisfy himself that the
occupiers were conscious of their obligations concerning the safety of people
working there.
Latimer v AEC [1953] AC 643 House of Lords
The claimant worked in the defendant's factory and slipped up on the factory
floor. The factory had become flooded due to adverse weather conditions.
The defendant's had put up warning signs mopped up and placed sawdust in
the most used places to make it as safe as possible. The trial judge held that
there had been a breach of duty as the defendants should have closed the
factory if it was unnsafe. However, no argument had been advanced on this.
Held:
There was no breach of duty. There was no duty to close the factory. The
defendant only had to take reasonable precautions to minimise the risk
which they had done. There was no need to go to great expense to eliminate
any possible risk and thus no obligation to close the factory.
McWilliams -v- Sir William Arrol & Co Ltd [1962]
A steel erector had fallen seventy feet to his death from a steel lattice tower.
The employers had not provided a safety harness, but the judge found that
he would not have used a security belt even if provided, and that the onus
was on the pursuer to prove that the deceased would have worn a safety

belt. Held: The claim failed. The onus was on the pursuer to establish, not
only the breach of duty, but also the causal connection between the breach
of duty and the accident; that what the deceased would have done, if a
safety belt had been provided, was a matter of inference from the
appropriate facts, and that, in the present case, the inference was that he
would not have worn a belt; further that there was no obligation on the
employers to instruct or exhort him to wear a safety belt. Liability was not
established. Lord Reid: "It has been suggested that the decision of this House
in Wardlaw v Bonnington Castings Ltd 1956 S.C. (H.L.) 26 lays down new law
and increased the burden on pursuers. I do not think so. It states what has
always been the law - a pursuer must prove his case. He must prove that the
fault of the defender caused or contributed to the damage which he has
suffered. But proof need not be by direct evidence. If general practice or a
regulation requires that some safety appliance shall be provided, one would
assume that it is of some use, and that a reasonable man would use it. And
one would assume that the injured man was a reasonable man. So the initial
onus on the pursuer to connect the failure to provide the appliance with the
accident would normally be discharged merely by proving the circumstances
which led to the accident, and it is only where the evidence throws doubt on
either of these assumptions that any difficulty would arise. Normally, it would
be left to the defender to adduce evidence, if he could, to displace these
assumptions. So, in practice, it would be realistic, even if not theoretically
accurate, to say that the onus is generally on the defender to show that the
man would not have used the appliance, even if it had been available. But in
the end, when all the evidence has been brought out, it rarely matters where
the onus originally lay: the question is which way the balance of probability
has come to rest."
Work Related Stress
Walker -v- Northumberland County Council; QBD 16-Nov-1994: The
plaintiff was a manager within the social services department. He suffered a
mental breakdown in 1986, and had four months off work. His employers had
refused to provide the increased support he requested. He had returned to
work, but again, did not receive the staff or guidance to allow him to do the
work asked of him, and he took a second sick leave. He was then dismissed.
He sought damages for the employers breach of their duty of care.
Held: The employer was liable in negligence for a second work stress induced
nervous breakdown. There was no reason in logic why damages should not
be recoverable for psychiatric damages, or why the employer should not

have a duty to prevent such damage. If a duty of care is established a

claimant must then also show that the steps required to deal with it were
reasonable in the context, allowing for the resources available, and the risks
must be substantial. By the time he returned to work it was reasonably
forseeable that further injury would occur, and the authority could not
operate policies which would cause injury to its staff, and the court was free
to examine such policies. Given the risk, the authority should have taken
steps to avoid further injury to the plaintiff.
The standard of care to be expected of a reasonable local authority required
that additional assistance should be provided, if not on a permanent basis,
at least until restructuring of the social services had been effected and the
workload on Mr Walker thereby permanently reduced. The assistance should
have been provided notwithstanding that it could be expected to have some
disruptive effect on the councils provision of services to the public.
Sutherland v Hatton
Court of Appeal, 2002. This case gave its name to a set of principles applied
in work-related stress cases. While some of these principles have since
changed, they still provide a framework in deciding whether an employer is
liable for psychological harm to employees.
For fifteen years Mrs Hatton was a French teacher at Thomas St Becket
comprehensive school, of which Mr Sutherland was the chair of the
governors. In 1995 Mrs Hatton was signed off work with depression and took
early retirement on ill-health grounds. Mrs Hatton had a history of
depression, having had episodes in 1989 and 1994 which on both occasions
led her to taking two months off work. A psychiatric expert at court described
her as,
recognisable as an obsessional individual who was prone to anxiety and
depression when under pressure. Such a person is likely to spend more and
more time trying to get things right as a function of her illness rather than as
a function of the amount of work she has to do. It is quite common for such
people on different occasions to lay the blame on a single cause because this
is more comfortable for them, although other things are causing or
contributing to the pressure. Thus Mrs Hatton attributed her illness to the
work overload when speaking to a stress counsellor in August, and to her
son's illness when speaking to her head teacher in September.In 1989 Mrs
Hatton divorced. She was left to bring up two children and in 1994 one of
them developed a serious illness. In that year she was also assaulted and

was off work for a month, having just returned from three weeks absence
caused by a viral illness. While these were not identified as the causes of her
depressive episodes they were identified as potential triggers. On her return
to work in 1994 Mrs Hatton had a short meeting with the school in which she
explained that the cause of her depression was problems at home. She did
not complain about her workload and the Court of Appeal found that it was
both reasonable and no different to other French teachers at her school. In
the summer holidays of 1995 Mrs Hatton saw a counsellor, but did not inform
the school. Shortly after the new academic year started she began suffering
badly from a stress-induced condition and was signed off with depression,
never to return to work. Mrs Hatton blamed the school for her illness, but the
Court of Appeal found that the school could not have reasonably foreseen
her breakdown.
'Unless he knows of some particular problem or vulnerability, an employer
is usually entitled to assume that his employee is up to the normal pressures
of the job. It is only if there is something specific about the job or the
employee or the combination of the two that he has to think harder. But
thinking harder does not necessarily mean that he has to make searching or
intrusive enquires. Generally he is entitled to take what he is told by or on
behalf of the employee at face value.'Mrs Hatton also failed to identify how
the school had breached their duty of care to her and how any changes in
her workload would have made any difference. The case was dismissed.
NOTE: Hatton v Sutherland is known for the Sutherland principles, the Court
of Appeal's guidance to judges on workplace stress cases. While the
principles have not gone unchallenged by the House of Lords and
subsequent Court of Appeal cases, they are still relevant:

There are no special control mechanisms applying to claims for psychiatric

(or physical) illness or injury arising from the stress of doing the work the
employee is required to do The ordinary principles of employer's liability
apply.
The threshold question is whether this kind of harm to this particular
employee was reasonably foreseeable: this has two components (a) an injury
to health (as distinct from occupational stress) which (b) is attributable to
stress at work (as distinct from other factors).

Foreseeability depends upon what the employer knows (or ought

reasonably to know) about the individual employee. Because of the nature of
mental disorder, it is harder to foresee than physical injury, but may be
easier to foresee in a known individual than in the population at large. An
employer is usually entitled to assume that the employee can withstand the
normal pressures of the job unless he knows of some particular problem or
vulnerability.
The test is the same whatever the employment: there are no occupations
which should be regarded as intrinsically dangerous to mental health.
Factors likely to be relevant in answering the threshold question include
the nature and extent of the work done by the employee and signs from the
employee of impending harm to health.
[The employer is generally entitled to take what he is told by his employee
at face value, unless he has good reason to think to the contrary. He does not
generally have to make searching enquiries of the employee or seek
permission to make further enquiries of his medical advisers.] This has been
superseded by the House of Lords in Barber v Somerset Council. Employers
have an active duty of care towards employees.
To trigger a duty to take steps, the indications of impending harm to
health arising from stress at work must be plain enough for any reasonable
employer to realise that he should do something about it.
The employer is only in breach of duty if he has failed to take the steps
which are reasonable in the circumstances, bearing in mind the magnitude of
the risk of harm occurring, the gravity of the harm which may occur, the
costs and practicability of preventing it, and the justifications for running the
risk.
The size and scope of the employer's operation, its resources and the
demands it faces are relevant in deciding what is reasonable; these include
the interests of other employees and the need to treat them fairly, for
example, in any redistribution of duties.
An employer can only reasonably be expected to take steps which are
likely to do some good: the court is likely to need expert evidence on this.
An employer who offers a confidential advice service, with referral to
appropriate counseling or treatment services, is unlikely to be found in
breach of duty.] This has been superseded by the Court of Appeal case of

Intel v Daws. Provision of a counseling service is not a defence where the

harm to an employee is caused by a failure of management.
If the only reasonable and effective step would have been to dismiss or
demote the employee, the employer will not be in breach of duty in allowing
a willing employee to continue in the job.] The 2002 Court of Appeal case of
Baker Refractories v Bishop decided that there would also have to be nothing
'unusual, excessive or unreasonable about the demands of a job.' Also see
the 2007 Court of Appeal case of RBS v McAdie which decided that an
employer can fairly dismiss an employee for lack of 'capability' even when it
caused the harm leading to the capability question. In all cases, therefore, it
is necessary to identify the steps which the employer both could and should
have taken before finding him in breach of his duty of care.
The claimant must show that that breach of duty has caused or materially
contributed to the harm suffered. It is not enough to show that occupational
stress has caused the harm.Where the harm suffered has more than one
cause, the employer should only pay for that proportion of the harm suffered
which is attributable to his wrongdoing, unless the harm is truly indivisible. It
is for the defendant to raise the question of apportionment.] The 2008 Court
of Appeal case of Dickins v O2 has decided that an employer is liable for the
whole cost of harm where its negligence played a material part and the harm
is indivisible.
The assessment of damages will take account of any pre-existing disorder
or vulnerability and of the chance that the claimant would have succumbed
to a stress related disorder in any event.

Hartman v South Essex Mental Health 2005

The critical issue was whether the trust should have appreciated that Mrs
Hartman, who was employed by the trust at Orchard View children's home as
a nursing auxiliary, was at risk of succumbing to psychiatric injury.
Their Lordships agreed with the trust that there was no basis for the judge's
apparent conclusion that caring for children with serious learning difficulties
was a high risk occupation imposing a higher than normal standard of
alertness on employees in respect of the risk that employees would sustain
psychiatric injury: see Hatton (p 628, paragraph 34).

Nor was it right to attribute to the trust in their capacity as employers,

knowledge of confidential medical information, that she had suffered from
high blood pressure in 1988, had had an anxiety attack in November 1988,
and was on anti-depressants, which was disclosed by Mrs Hartman to the
trust's occupational health department at the time of her job application.
Had the department negligently concluded that Mrs Hartman was fit to be
employed when she was not, a case might have been made that the trust
was vicariously liable for that negligence, but that was not the case. Medical
Ethics Today (2nd edition (2004) p 587) correctly summarised the
position.There might be circumstances in which an occupational health
department's duty of care to an employee required the department to seek
an employee's consent to the disclosure to the employer of information that
the employer needed to know if proper steps were to be taken for the
welfare of the employee. No such case was advanced by Mrs Hartman.There
was no basis upon which the judge could properly conclude that the trust
was fixed with knowledge of the confidential information disclosed by Mrs
Hartman to the department.The judge should have rejected Mrs Hartman's
claim on the ground that it was not reasonably foreseeable to the trust that
she would suffer psychiatric injury and, accordingly, they were not in breach
of duty to her.
Daw v Intel Corporation UK Ltd [2007]
The claimant was employed by the defendant. She held an administrative
position in a large organisation and had worked for the defendant for many
years. Between late 2000 and early 2001 she had a heavy workload;
reporting lines in her job were confused with a problem of priorities between
the demands made upon her by different managers; she was provided with
insufficient assistance and had to work excessive hours to get the job done.
She made many representations about the amount of work she was required
to do and the problems which arose in her work. In early March 2001 one of
her managers found her in tears; he asked her to write down her concerns.
She described her problems in detail and concluded: 'I cannot sustain the
level of work that I am currently doing. No one is getting a particularly good
service, I am not enjoying what I am doing, bureaucracy is stressing me out .
. . [Human Resources and another manager] are demoralising me and I want
out.' She stayed on in her post on an assurance that another employee
would be recruited to assist with her workload, but in the event no
appointment was made. The claimant's health deteriorated and she visited
her doctor in May who recorded that she was depressed. She was signed off
work in June for three weeks and attempted suicide the day after leaving the

office. She brought proceedings for damages for personal injury. The judge
found that, by the time of the claimant's conversation with the manager in
March 2001, the defendant ought to have known that the demands on her
were totally unreasonable and that the risk of harm to her health was clear.
He considered that the fact that the defendant provided a counselling service
for its employees did not discharge its duty of care in that short term
counselling could not have ameliorated the risk of harm to her health or
helped her cope with it; the service could not have reduced her workload and
the most it could have done was to have advised her to see her doctor. He
made an award of damages. The defendant appealed as to liability and
quantum, contending, inter alia, that the provision of counselling services
had discharged its duty of care and that, had that service been used by the
claimant, the urgency of the situation would have become clear to it. It relied
on guidance given by the Court of Appeal that an employer who offered a
confidential advice service with referral to appropriate counselling or
treatment services was unlikely to be found in breach of duty.
Held The guidance given by the Court of Appeal as to the approach the
court should adopt to allegations of psychiatric illness caused by stress at
work did not render the availability of counselling services a panacea by
which employers could discharge their duty of care in all cases. The
considerable amount of helpful guidance in that case did not preclude or
excuse a trial judge from conducting a vigorous fact-finding exercise or
deciding which parts of that guidance were relevant to the particular
circumstances. In the instant case the judge had been fully entitled to hold
that it was a failure of management which had created the claimant's
stresses and led to the breakdown; he had been entitled to hold that, by
early March, injury to the claimant's health was reasonably foreseeable and
to find that the defendant's failure to take urgent and appropriate action was
causative of the severity of the claimant's depression. The consequences of
the management's failure to take action were not avoided by the provision of
counsellors who might have been able to bring home to the defendant that
action was required; on the judge's findings the management knew that
action was required. Moreover, the judge had been entitled to reach the
conclusion as to quantum that he had. Accordingly, the appeal would be
dismissed.
Dickens v O2: The claimant had been working for her employers for many
years and was a good employee who took little time off work. Part of her job
was to carry out a quarterly audit. She found the audit in February 2002
extremely stressful and took a short holiday, but was no better. She informed

her line manager that she could not cope with her job and wanted to transfer
to a less stressful job. There were no vacancies available at that time and
she was told that they would review things in three months.
In April 2002 she requested a six month sabbatical, but was advised to use
the employers confidential counselling helpline. At her subsequent appraisal
she repeated her concerns and was referred to Occupational Health, but
before she was seen she suffered a breakdown and never returned to work.

The Court of Appeal upheld the Judges findings in the case that the
psychiatric injury was reasonably foreseeable from April 2002. She had made
clear the seriousness of her symptoms, particularly bearing in mind that she
was a conscientious employee. The employer should have been alerted to
the risks that the claimant was going to suffer illness if appropriate action
was not taken. The court was clear that simply referring the claimant to the
confidential counselling helpline was not sufficient. The employer should
have referred her to Occupational Health from the outset as this would have
set in motion a professional consideration of her problems by a doctor.
Although not part of the judgment, the Judges in the Court of Appeal also
commented that the decision in the case of Hatton was wrong to suggest
that an employer found liable for psychiatric injury caused by occupational
stress should only pay for that proportion of the injury caused by the
employers breach of duty. The Judges commented that if the injury is truly
indivisible then an employer should be liable for the whole injury if proved
that the tort has made more than a minimal contribution to the injury. This
case has significantly lowered the bar in terms of bringing work place stress
claims. It must now also be a matter of some doubt whether employers
practice of providing a confidential counselling service will be sufficient to
protect an employer from a claim for workplace stress.
Defences
Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 House of
Lords:The claimants were brothers who were qualified shotfirers employed
by the defendant. They were injured as a result of an explosion at the
defendant's quarry caused by the brothers' negligence. 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. Each brother claimed against the defendant based on their
employer's vicarious liability for the negligence and breach of statutory duty

of the other brother. 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. This was
upheld in the Court of Appeal. Held:The appeal was allowed. The brothers
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. They had
also previously dismissed a worker for flouting the regulations.
Stapley v Gypsum Mines [1953] AC 663 House of Lords: Mr Stapley
was killed when a roof of a mine fell on top of him. At the time of his death
he was acting against his employers orders. He and another employee Mr
Dale had been told to bring the roof down as it was dangerous. The pair
knew that this meant that they should not to work in that part of the mine
because of the risk. They attempted to bring down the roof but were
unsuccessful in their attempts. They then decided to continue with the work
they had originally been given. At the time of the collapse, Mr Dale had
briefly left that part of the mine and was uninjured. Mrs Stapely brought an
action against his employer for breach of statutory duty in relation to the
actions of Mr Dale. The trial judge found for the Claimant, but reduced the
damages by 50% under the Law Reform (Contributory Negligence) Act 1945.
The Court of Appeal allowed an appeal by the Defendant holding that Mr
Stapely was solely responsible for his own death. The Claimant appealed to
the Lords.
Held:The appeal was allowed but the damages were reduced by 80%.
Legall v Skinner Drilling (Contractors) Ltd,13 the defendant
company was engaged in oil drilling. The plaintiff was employed by
the defendant as a derrick man, one of his duties being the removal
of nuts and bolts from the rigs as part of the rigging down
operation. In order to remove a bolt from a rig platform about 10 ft
from the ground, the plaintiff was given an empty oil drum to stand
on. The drum toppled over and the plaintiff fell to the ground and
was injured. It was held that the defendant, by failing to ensure that
its workers used ladders to reach high platforms and to warn the
plaintiff of the danger of standing on the oil drum, was in breach of
its common law duty to provide a safe system of work. Another
example of failure to provide a safe system of work is the Jamaican

case of Bish v Leathercraft Ltd.14 Here, the plaintiff was operating a

button pressing machine in the defendants factory when a button
became stuck in the piston. While attempting to dislodge the button
with her right index finger, the plaintiffs elbow came into contact
with an unguarded lever, which caused the piston to descend and
crush her finger. The Jamaican Court of Appeal held that the
defendants were in breach of their common law duties to provide
adequate equipment and a safe system of work, in that: (a) the
button had not been pre- heated, which was the cause of its
becoming stuck in the position; (b) no three inch nail, which would
have been effective to dislodge the button, was provided for the
plaintiffs use, with the result that the plaintiff had to resort to
using her finger; and (c) the lever was not provided with a guard,
which would most probably have prevented the accident which
occurred.