Employers' Liability: What are the central issues and central cases involved on understanding employers liability in tort?

16 March 2011 15:47

HISTORY OF EMPLOYER'S LIABILITY

Employers' liability started developing in the nineteenth century however development was quite slow. The first signs of it came with the Health and Morals of Apprentices Act 1802, followed by the Factory Act 1833 and Factory Act 1844. It was not until the Workmen's Compensation Act 1897 that workers had the means of suing and getting compensation although this was very rare. Traditionally Employers' liability favoured the employers as the defences used at that time against the claimant were purely advantageous for the employer. The three main defences were: o Volenti non fit injuria- this meant that the workers in accepting the work was said to have accepted the risks and dangers that come with the work. However, this defence was limited in Smith v Baker [1891] AC 325, in that this defence was only available to the employer if the claimant had freely accepted and understood the risks in taking the job. Case law to illustrate this is: ICI Ltd v Shatwell 1965-claimant and brother worked in defendants quarry. They ignored the defendants orders and regulations by testing detonators without taking the necessary precautions. The claimant got injured and sued the employer on the grounds of vicarious liability. The court rejected his claim and said by ignoring the employer and listening to the brother he took the risk in his own free will. Baker v T E Hopkins 1959- here an employer exposed his employees to petrol fumes and they became unconscious. A doctor lost his life while trying to help them. The defendant argued using the defence of volenti but the court rejected it as the doctor did not agree to the specific risks. He was just trying to help. He had not consented to death. o Contributory negligence- if the employer could show that the employee was engaging in unsafe working conditions, there could be no claim even if it was the employer who commanded the employee to do the work. This was also limited in that contributory negligence became a partial defence which only affected the amount of damages to be awarded rather that completely removing liability of the employer. This happens when the injury caused to the claimant was partly his fault. Case law: Jones v Livox Quarries Ltd 1952- the employee was injured in a collision caused by the defendant's negligence damages were reduced by 5%. This was because the employee had contributed to his own injury by riding on the tow bar of a traxcavator despite the express prohibition of his employer. o Fellow servant rule- if an employee was injured by a fellow employee's actions, the employer would deny or reject responsibility for the employees action and the employer would have no claim against him. It would also be pointless to sue the employee as they would be 'a

man of straw.' In Groves v Lord Wimbourne {1898] 2 QB 402 the fellow servant rule was no longer available as a defence to a breach of statuatory duty. It was then completely abolished in the Law Reform (Personal Injury) Act 1948.

MODERN SCOPE OF LIABILITY

Since then there have been major developments in the area of Employers' liability. The law seemed to now take into consideration the needs of an employee and there was a gradual shift from the employer to the employees. A case to illustrate this is Wilson & Clyde Co v English [1938] AC 57. These courts established that the employer owed the employee a personal and non delegable duty of care. Employers became liable for defective plant and equipment under the Employers' Liability (Defective Equipment) Act 1969 and the issue of the employer insuring his workers against injury was extended to include all employees in the Employers' Liability (Compulsory Insurance) Act 1969.

THE FOUR FOLD DUTY

As mentioned before, the case of Wilson & Clyde determined the basic common law duty in Lord Wright's judgement. Lord Wright identified the duty as personal and non-delegable and at the time saw the duty as having four aspects: o The duty to provide competent staff: the employer must ensure that all the employees hired are competent enough to do the work needed. This also includes the behaviour of the employees. Case examples for this are: o General Cleaning Contractors Ltd v Christmas 1953- a window cleaner was injures while cleaning sash windows as he had been given improper instruction on the safest method. The employer was held liable. o Hudson v Ridge Manufacturing Co 1957- 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 liable for failing to discipline the employee and was held liable. o However an employer might not be liable if they were not aware that the employee was likely to behave in an unreasonable manner. Case example: O'Reilly v National Rail 1966- labourers were breaking up a disused railway line and they found what seemed to be an unexploded shell from WW2. Some of the workers suggested that the claimant smash the shell with a sledgehammer. In doing so the claimant got severely injured, the employer was not held to be liable as it was unexpected that his employees would act so foolishly. o The duty to provide safe plant and equipment: this is straight forward. The employer must make sure the equipment is safe to use and properly maintained. The common law in this area has been supplemented by the Employers Liability (Defective Equipment) Act 1969 S. 1(1) which establishes that if an employee is injured by equipment during the course of employment and they can prove that the defect was wholly or partly caused by the fault of a third party (usually the manufacturer) this means that the employer will be held liable. The reason for this was to overrule the case of DAVIE v NEW MERTON BOARD MILLS 1959. In this case an employee was blinded in one eye by a piece of metal chipped of the tool he was using.

The tool was negligently manufactured. The claimant's claim for compensation was rejected. HL had held that the employers had discharged their responsibility to provide proper tools by purchasing them from a proper supplier. Reason for this was to leave employee without compensation where the supplier or manufacturer could not be found or was bankrupt. o However one has to note that trying to prove fault against the third party is not easy. o An employer may be able to avoid liability if they can prove that even if the proper equipment would have been provided, the employee would not have used it. The argument is one of causation in that the employer was clearly in breach of their duty. Having said that the claimant would have still suffered the same injury because of refusing to use the equipment so the employer cannot be said to be the cause of the injury. A case to demonstrate this is Williamss v Sir Williams Arrol & Co. A steel erector fell to his death as he was not wearing a safety harness and even though it was clear the employers were in breach of their statutory right, the HL held them not to be liable as they provided strong evidence that the employee would not have used the harness even if one had been provided, o A proper system of work including effective supervision: the employer has a duty to ensure a reasonably safe system of working and to give employees general safety instructions about their job including the physical layout of the job, the order in which the work is carried out warnings, provisions, etc. An example of this is the case of Pape v Cumbria County Council. In this case, the claimant contracted dermatitis, a skin condition after working with various detergents and cleaning chemicals. She was provided with gloves however she was not told the risks that involve not wearing the gloves nor was she instructed to wear them. Due to this, the courts held that the defendant were liable. The employer did not take reasonable steps to ensure the safety of the employee. o The employer not only has to take reasonable steps for providing a safe working system but also they must make sure that the safe system of work is implemented. They should be aware that the employees are more prone to be careless and dangerous situations can develop. Case example is: General Cleaning Contractors Ltd v Christmas 1953 A window cleaner was injures while cleaning sash windows as he had been given improper instruction on the safest method. The employer was held liable. The court said that the employee should have been given clearer instructions to ensure accidents wouldn't happen and by failing to do so, they had not provided a safe system of work. o Another case example is Jebson v Ministry of defence- soldiers in drunken state, employer sent a lorry to pick them up but one got injured. It was held that since employer knew that they were in a drunken state, he should have sent supervisor. o A safe place of work: an employer must take reasonable steps to ensure a safe work place but this does not necessarily mean that the

workplace should be completely safe. Case example :Latimer v AEC Ltd 1953 The defendant's factory got flooded as a result of heavy rainfall. The water mixed with oily liquid collected in channels in the floor meaning that the floors became very slippery. The defendants used sawdust to control this. The majority of the floor was covered but the claimant slipped and broke his ankle. It was held that the defendants were not liable since they had done everything that they could have reasonably done to ensure the safety of their employees. It would be unreasonable for them to suffer further loss by closing down the factory.

BREACH OF STATUATORY DUTY

The tort of breach of statuatory duty allows a claimant in certain situations

to claim for compensation for losses caused by the defendant's failure to comply with statuatory duties. Usually an employee who suffers an injury during the course of employment, the will bring and action under the tort of negligence or the breach of statuatory duties usually under the Health and Safety Regulations. A civil action for the tort of breach of statuatory duty arises indirectly where a statute imposes a duty (usually relating to criminal liability) but does not give a civil remedy in the event of the breach. One can therefore say that this area of tort of a hybrid between common law and statue. Duty lies in statue and remedy lies in common law. In order to bring an action under breach of statuatory duty, 3 questions have to be addressed: o Does the statute give rise to claim in tort? Not every statuatory duty gives a rise to a claim in tort. This was seen in Lonrho Ltd v Shell petroleum No2 [1982].Has the defendant breached their duty. o Does the claimant's loss or injury fall under the scope of duty. o One also has to see causation and defences.

. Does the statute give rise the a claim in tort law?

o

Clearly where a statute explicitly states whether a breach of its provision gives rise to a remedy in tort as for example in section 3 of the Protection from Harassment Act 1997, no problem arises. Difficulties arise when the statute imposes a duty but is silent whether it intended there to be a civil action for its breach. Therefore courts must divine the intention of Parliament.

In the case of Lonrho, Lord Diplock identified factors that should be considered when identifying the breach of statutory duty. Stating from another case that when an Act provides certain obligations it is taken as a general rule that one cannot sway from those obligations. Unless: where the statutory duty is imposed for the protection of a limited case of people and where the statute creates a public right and a particular member of the special

damage (second principle not yet been developed). Neither of the exceptions were applicable here: the sanctions were not concerned with conferring the rights of individuals or the public at large. The purpose was the destruction of the UDI regime in Southern Rhodesia; they were instruments of state policy in an international matter.

In X (Minors) v Bedfordshire County Council, Lord BrowneWilkinson stated that although there is no general rule by which to determine whether a statute gives rise the civil liability, there are a number of indicators. Including: whether the duty was imposed for the protection of a limited class of the public and some other policy considerations. Groves v Lord Wimborne [1898] CA -here Groves, a boy, worked in the defendants iron works. He seriously injured his arm in the cogwheels of a steam winch. The machinery had been left unfenced contrary to section 5 of the Factory and Workshop Act 1878, which imposed an absolute duty on the employer to ensure that certain machinery was fenced. -The C of A allowed Groves claim against his employer. The question for the court was whether there were alternative sanctions, like fines or penalties, which prevented a claim for breach of statutory duty on the part of the claimant. The court recognised the existence of alternative ways of enforcing the duty as a factor that must be taken into account. Other factors included whether the statute was passed for the benefit of the public at large or a particular class of people. In Cutler v Wandsworth Stadium [1949] the courts considered another factor suggesting when a civil claim may arise-who is the statute intended to benefit? In this case the House of Lords held that the primary intention of the Betting and Lotteries Act 1934 was to regulate ringside betting operations and that, while changes made under its regulation may benefit some bookmarkers, this was not the intended purpose of the Act.

Fortunately, the restrictive approach of Lord Browne-Wilkinson in X v Bedfordshire in relation to social welfare legislation appears not to have found favour in the field of health and safety, although this case ought to be compared with the unfortunate decision in: Richardson v Pitt-Stanley [1995] CA -here, the claimant severely injured his right hand at work and successfully sued the company employing him in negligence and breach of statutory duty. Unfortunately, his employer company was uninsured and was unable to meet his claim. -in response the claimant sued the directors of the company for breach of their statutory duty under section 5 of the Employers Liability (Compulsory Insurance) Act 1969. Surprisingly the C of A held that there was course of action. The statute was not, in their view, solely intended to benefit those injured at work but rather was also intended to protect the insured against the side effects of multiple and/or large claims.

2/3. Has the duty been breached and does the harm fall within the scope of the duty? Once it is established that a statute allows for an action for the breach of statutory duty, in order for a claim to succeed the claimant must also show that the duty has in fact been breached and that the harm suffered falls within the scope of the duty (and causation). This is usually quite straightforward. The scope and content of the duty will be defined by the statute. Once we know what the duty requires of the defendant we shall know what constitutes a breach of that duty. Additionally, the harm/damage suffered by the claimant must be of the type that the duty was intended to prevent. The leading case is Gorris v Scott [1874] which involved a cargo of sheep. The defendant ship-owner was under a statutory duty to keep them securely penned when in transit in order to prevent the spread of disease. He did not do so in breach of his duty- and as a result

the sheep were swept overboard in bad weather. The claim for breach of duty was unsuccessful. The duty was imposed in order to prevent disease; the damage in fact suffered was accordingly something totally apart from the object of the Act

Similarly in: Fytche v Wincanton Logistics plc [2004] HL -Mr Fytche was employed by the defendant company to drive a milk tanker to collect milk from farms at night. One morning, after a particularly heavy snow fall, the tanker became stuck on an icy country road. Contrary to companys standard procedures, the claimant attempted to dig the tanker out. It took 3 hours in subzero temperatures. Unfortunately, as a result, the claimant suffered frostbite in his little toe as a result of a leak in his right boot. The H of Ls held that there was no claim in respect of a small hole in his boots despite an obligation under regulation 7(1) of the Personal Protective Equipment at Work Regulations 1992. The boots had not been provided to protect his toes against frostbite, but rather to protect from impact injuries and for which purpose they were still in good repair. The employers were therefore not in breach of regulation 7(1).