Dec 2001 – Paper 2 Question 4

A person has been partly paralysed after receiving an electric shock when using a damaged
portable electrical drill to install some shelves at home. He had borrowed the drill from his
employer with the permission of his supervisor. He is pursuing a double-barrelled action in
the civil courts, claiming that the employer was both negligent in failing to maintain the drill in
proper working order and had breached regulation 5(1) of PUWER 1998, which requires that:
‘Every employer shall ensure that work equipment is maintained in an efficient state, in
efficient working order and in good repair’.

i) With reference to possible defences by the employer, and to case law where
appropriate, review the strengths and weaknesses of the case. (14)

Negligence
 Accident did not occur at work
 Neighbour test – Donaghue v Stevenson – whether a duty was still owed
o Whether it was foreseeable that equipment would be loaned to employees
(e.g. whether it was common practice and did supervisor act beyond his
authority)
o Foreseeability – The Wagon Mound
 Defences
o Vicarious liability – if supervisor was negligent in loaning the equipment
o Duty of care had not been breached e.g. if drill was damaged by claimant or
employer had done everything reasonable to ensure that it was safe
o Breach had not lead to injury – probably not here though
o Volenti non fit injuria – if the claimant knew that the drill was dangerous
o Contributory negligence – if claimant failed to use electrical protection such as
a RCD

Breach of Statutory duty

 PUWER does not apply since scope is restricted to equipment provided for
use or used by an employee at work
 Strength of case rests with negligence and whether employer was aware that
work equipment might be loaned to employees and had not been maintained

ii) Explain, with examples, the difference between ‘general’ and ‘special’ damages that
would be awarded in the event of a successful claim. (6)

General damages
 Presumed to follow from the alleged injury and do not have to be set out in the
claimant’s case
 Paid in respect of that particular individual regardless of who it is
 Awarded on basis of injury itself
 Easier to quantify than special damages, look at cases on case law and precedent
 Judicial Studies Board guidelines – compared damages for different injuries,
maximum and minimum guidelines
 Exact sum is not calculable
o Pain and suffering
o Injury to health
o Based on current condition and future prognosis
Special damages
 Not presumed by law but arise from the special facts of the case and must be
expressly pleaded and proved
 Designed to put the claimant in the same financial position if he hadn’t had the
accident – personal and calculable
o Legal and medical expenses
o Travel expenses
o Loss of earnings prior to the case being heard and future
o Loss of DIY skills, amenities
o Damage and expenses incurred e.g. vehicle, personal property
o Aids, bed, pillows
o Future medical care