CASE LAW Return Adsett v K and L Steel Founders (1953) This case refers to duties placed on employers relating

to "dust and fumes". The decision refers to the standard of "practicability" which it claims is that of "current knowledge and invention". Once something is found to be practicable, as in ventilation systems, it is feasible. It must then be done no matter how expensive or inconvenient. However, this also means that an employer cannot be liable for failing to use a safety device which was not invented at the time of the accident but appeared subsequent to it. In the Adsett case, the employer argued that the extractor had been installed as soon as it had been thought of. The Court of Appeal held that the employer could not be held liable, as for a measure to be "practicable" meant that it had to be known about, especially by experts, so that it could be applied by people in the industry. Armour v Skeen (1977) The first prosecution under Section 37 of the Health and Safety at Work Act. The Director of Roads was prosecuted after a workman fell to his death when repairing a road bridge. The Director had failed to formulate a written safety policy for road work. The judgement was that although Section 2 of the Act imposes a duty on employers, this does not mean that there is no duty on the part of the individual to carry out that duty by putting it into practice. However; with regard to Section 37, the individual involved must be the "directing will" of the organisation. Section 37(1) was held to refer to "any neglect" and not just to the neglect of a duty imposed. Associated Dairies v Hartley (1979) Successful appeal against an improvement notice. Baker v Hopkins (1959) Volenti defence failed where a doctor overcome going to treat two workmen in a well. (See Tolley p355.) Baxter v Harland and Woolf (1990) Northern Ireland case relating to actionable noise hazard. Applied to January 1954, earplugs held not to be enough. Berry v Stone Manganese Marine (1972) Deafness held to be due to negligence in civil law. Biddle v Truvox Engineering Ltd (1952) Employers failed to join manufacturers, as a third party, in employee's action. (See Selwyn p162.) Bolton Metropolitan Council v Malrod Ltd (1992) (See Selwyn p223.) (See Selwyn p95.)

Section 2 duty to employees who will be at work as well as to those who are at work. (See Selwyn p72.) Bourhill v Young (1943) Nervous shock has to be accompanied by physical injury. Changed since Hinz v Berry (1970). (See Tolley p109.) Bowater v Rowley Regis Corporation (1944) Providing defective equipment is a breach of the duty to provide safe equipment. (See Selwyn p276.) Bradford v Robinson Rentals Ltd (1967) Held a van to be plant. BRB v Herrington (1971) This decision established that if the occupier knew, before the accident, that there was a substantial probability that trespassers would come, failure to give any thought to their safety would be considered by most people to be culpable. This is an example of what later became the "duty of common humanity" extended towards trespassers under the Occupiers' Liability Act 1984. The case deals with the occupier's duties towards trespassers with particular reference to young children. In general, trespassers are held to "take premises as they find them", although this doesn't allow the occupier to set deliberate traps. The occupier should adopt the attitude of human conscientiousness towards the simple trespasser. The test question being: "What would a conscientious, humane person, with knowledge, skill and resources, be expected to have done?" However; an occupier must be prepared for children to be less careful than adults, especially where there is some state of affairs on the premises which "lures" a child onto them. With regard to cost to prevent injury, a large organisation would be expected to do more than an impecunious occupier with little assistance at hand. Burgess v Thorn Consumer Electronics (1983) Dealing with WRULDs. The Judge decided that "a prudent employer ought to have been aware of the problem at the latest in 1978". This set the current date of knowledge for WRULDs. The duty to warn and educate employees about WRULD is made clear by the decision of the courts when considering claims. This case defined the employer's duty to warn employees to: a) report problems at once b) consult their GP c) explain the consequence of failure to so comply. Bux v Slough Metals Ltd (1974) An employer must tell an employee if they are breaking the law. The employer should make the law of the land the rule of the factory. (See Selwyn p299.) Close v Steel Company of Wales (1962) (See Selwyn p74.)

Fence is to keep person from coming into contact with the dangerous part, not to keep part of the machine in. (See Selwyn p161.) Cock v Square D Ltd (1991) Held that the duty of care does not extend to "one-off" accidents to employees working abroad. (See Tolley p341.) Crouch v British Rail Engineering Ltd (1988) Injury to employee's immediate family involved in cleaning protective clothing etc. (See Tolley p692.) Davie v New Merton Board Mills (1958) An employee was injured, and lost the sight of an eye, when a drift he was using broke and a piece flew out. The employer successfully argued, at the House of Lords, that he had obtained the drifts from a wellknown and reputable supplier and had therefore exercised reasonable care. This eventually led to the passing of the Employers' Liability (Defective Equipment) Act 1969. Under this Act the employer is held to be liable, but can then pursue an action for his losses from the manufacturer or supplier. Davies v HSE (2003) Challenged section 40 on grounds of human rights. Turned down by Court of Appeal. Dewhurst v Coventry Corporation (1969) A young employee lost the end of his finger while cleaning the cutting blade of a bacon machine in a butcher's shop. He rotated the blade in order to clean it. The shop was prosecuted for permitting a young person to clean a machine while in motion when it exposed him to risk of injury, a breach of the Offices, Shops and Railway Premises Act. The employer argued that if he had followed the instructions, and held the blade steady, the accident would not have happened. Therefore, it was not foreseeable. The Court rejected this argument saying the duty was an absolute one. The fact that the employee was disobeying instructions was therefore irrelevant. Because the requirement is an absolute one it is not subject to reasonable foresight. Furthermore, the term "exposed to injury" is taken to mean "exposed to the kind of mechanism that may give rise to any injury whether used in accordance with instructions or not". Donoghue v Stevenson (1932) This leading case established that a consumer can sue both his supplier and manufacturer. The House of Lords holding that someone who drank ginger beer from an opaque bottle given to her by a friend and became ill from the presence of a snail in the bottle was entitled to sue the manufacturers for damages. Summing up on when the duty of care is owed, Lord Atkin suggested as a general test that it is "owed to persons whom one ought reasonably to have in mind as being affected by the particular behaviour. This case therefore concerns the duty to take reasonable care to avoid acts or omissions which can reasonably be

foreseen to be likely to injure one's neighbour (the neighbour principle). The basis of an employers' duty towards his employees stems from the existence of a contract of employment in which it is implied that the employer will take reasonable care to ensure the safety of his employees. However, modern cases are usually brought under tort rather than contract due to the influence of the Donoghue decision. The case has three main ingredients: o There is a general duty to take care not to injure someone whom one might reasonably foresee would be injured by acts or omissions. o That duty is broken if someone acts in a negligent manner. o The breach of duty must cause the injury or damage. Eaves v Morris Motors Ltd (1961) Workpiece itself, or the material, is not a dangerous part of the machine. (See Selwyn p159.) Edwards v National Coal Board (1949) This is the leading decision with regard to the meaning of the term "so far as is reasonably practicable". It suggests that it is a lesser standard than "so far as is practicable" and relies upon a computation being made of the quantum of risk on the one hand and the sacrifice in terms of cost of the measures needed to avert the risk on the other hand. The sacrifice is measured in terms of money, time and trouble. However, where a high risk is involved the measures must be taken. If the comparison shows that a gross disproportion exists between them, with the risk being insignificant in relation to the sacrifice, then the defendants can be seen to have discharged the onus placed upon them. The computation must have been made by the employer at a point in time anterior to the accident, so the test is one of foresight rather than hindsight. Ferguson v Dawson and Partners Ltd (1976) Upheld that someone on the "lump" was in fact an employee due to the relationship held. (See Selwyn p273.) Gallagher v Dorman Long Ltd (1947) Held it is easier to delegate a positive responsibility than a negative one. In end ask "whose fault is it?" (See Kluwer p915.) Garrard v Southey and Company (1952) With regard to the loan of an employee, the responsibility passes onto the second employer if unskilled. The employer having less control if a skilled employee is involved. (See Selwyn p274.) General Cleaning Contractors v Christmas (1953) Failed to instruct employee to test for defective premises with regard to window cleaning. (See Selwyn p280.) H L Bolton (Engineering) v P J Graham and Sons (1956)

Held that the state of mind of the director is the state of mind of the company. (See Tolley p357.) Haynes v Harwood and Sons (1935) Not volenti where an employee goes to the aid of a fellow employee. (See Tolley p355.) Hinz v Berry (1970) Changes matters in relation to nervous shock. No longer has to be accompanied by physical injury as in Bournhill v Young(1943). (See Tolley p109.) Hudson v Ridge Manufacturing Co Ltd (1957) Employer liable for practical joker if the employer knew about him. Must provided competent fellow employees. (See Selwyn p280.) ICI Ltd v Shatwell (1965) If an employee ignores a statutory duty placed upon him, the employer can raise the defence of volenti. (See Selwyn p283.) JH Dewhurst v Coventry Corporation (1969) Due diligence defence difficult to hold. (See Tolley p669.)

Johnstone v Bloomsbury Health Authority (1991) Held that you cannot contractually ask an employee to work so much overtime as to create a risk to health. (See Tolley p335.)

Knowles v Liverpool City Council (1992) A flagstone was held to be "equipment" under the Employer's Liability (Defective Equipment) Act. (See Selwyn p276.) Latimer v AEC Ltd (1953) This case deals with the position at common law relating to an "unprecedented and freak hazard". Where, for example, a means of access becomes hazardous due to snow or ice, it may not be reasonably practicable to take immediate steps to do something about it and a "temporary" delay may be expected. However, there must be reasonable attempts to deal with the problem. The Court also ruled that the definition of "maintained", used in the Factories Act 1961, was clearly directed to the state of the construction of the floor and not its temporary and unexpected condition or obstructions on its surface. As a result Latimer lost his claim. Lister v Romford Ice and Cold Storage (1957) A father and son were employed by the same company. The son negligently handled a vehicle, causing injury to his father. The father sued the

company for the negligence of their employee and obtained damages The insurance company involved in the case later succeeded in obtaining similar damages from the son. As a House of Lords case, it sets a precedent that, in certain circumstances, an employer who has been held liable and required to pay damages can be legally indemnified by his own employee. However; this rarely happens in practice. The case directly relates to the situation where an employee is injured as the result of the negligence of a fellow employee. Traditionally an employee, under the terms of his contract, will be diligent and use reasonable skill while at work. However, this decision amounts to a general duty to take reasonable care while at work. These contractual duties are owed to the employer and not to any person who may be injured as a result of the breach. As a consequence the employee may be sued for breach of contract. Machray v Stewart and Lloyds Ltd (1964) Not providing sufficient equipment was held to be not providing safe equipment. (See Selwyn p275.) Marshall v Gotham Co Ltd (1954) This case offers further guidance on the terms "so far as is practicable" and "so far as is reasonably practicable". Following this decision, the Courts will not hold lightly that something is not "reasonably practicable" if it is shown to be "practicable". In this particular case the employers were held not to be liable as the risk involved was a rare one and the trouble and expense involved with precautions would have been considerable. Even then, complete protection would not have been provided. McKay v Unwin Pyrotechnics (1991) Test case to see if "safe later" applied under Section 6 of the 1974 Act. (See Tolley p725.) McWilliams v Sir William Arrol Ltd (1962) Held that a breach of duty caused the damage. (See Selwyn p271.)

Mersey Docks and Harbour Board v Coggins and Griffiths (1947) Where a loaned employee injures a third party, it was held that the court must look at the transfer of legal obligations from one employer to another. (See Selwyn p274.) Morris v Ford Motor Co Ltd (1973) Indemnity agreement between Ford and the contractor, question of whether an injured contractor's employee can still sue Ford under vicarious liability. (See Tolley p366.) Paine v Colne Valley Electricity and BIC (1938)

Employer must take reasonable care to make premises safe for employees. (Safe for all persons under the Occupiers' Liability Act.) (See Selwyn p277.) Paris v Stepney Borough Council (1951) This case concerns Mr Paris who worked in the Council's truck maintenance garage. He had lost the sight of one eye during the war, but had concealed this from his employers. When a medical examination discovered the problem he was given two weeks' notice. Two days before he was due to leave, he was working beneath one of the Council's gullycleaning trucks. While he was using a hammer to loosen a bolt, a piece of metal flew off into his good eye and blinded him. He successfully claimed damages for negligence, arguing that as an individual with extra susceptibility to serious injury he should have been provided with goggles, even though the legislation at the time did not specify that eye protection was needed for that type of occupation. The decision requires that safety precautions must be both suitable and effective, it being necessary to ensure that precautions are suitable for each employee to use or wear. The emphasis is that the legal duty is owed to individuals and not to employees collectively. As the plaintiff had only one good eye, the employer should have foreseen that there was a risk of greater injury to this employee and provided an extra degree of safety precautions. The ruling made was that the standard of care which must be exercised by the employer is "the care which an ordinary prudent employer would take in all the circumstances". Parvin v Morton Machine Co Ltd (1952) Deemed that lorries visiting a plant where machinery was being made were not equipment. (See Selwyn p157.) Polemis v Furness Withy and Co (1921) Position held on foreseeable consequences of negligence prior to the Wagon Mound v Morts Dock (1961) judgement. (See Tolley p344.) Qualcast Ltd v Haynes (1959) Held that where the risk is obviously not serious, the employer's duty to provide protection is passive. (See Selwyn p278.) R v Boal (1992) Held that the responsibility of an employee is not that of a In this case the manager was on holiday and fire precautions carried out. Important as Fire Precautions Act 1971 uses, in context, the same terminology as Section 37 of the 1974 Act. Tolley p 388.) R v Board of Trustees of the Science Museum (1993) Held that the Section 3 duty of the Health and Safety at Work Act 1974 applies even where the risk involves possible rather than actual danger. (See Selwyn p80.) manager. not this (See

R v Chapman (1992) Held that a breach of Section 37 of 1974 Act leads to a disqualification as a director. (See Tolley p388.) R v Cory Brothers and Co (1927) Involved the medieval concept of corporate bodies. For opposite view see R v ICR Haulage (1944).(See End of Line Article p20.) R v H M Coroner The court was prepared to accept that a corporate body is capable of being found guilty of manslaughter. (See End of Line Article p20.) R v Holt Section 37 case. R v ICR Haulage Co Ltd (1944) Favoured opposite view on corporate bodies to that held in R v Cory Brothers (1927). (See End of Line Article p20.) R v Swan Hunter and Telemeter (1981)

Swan Hunter were prosecuted for failing to inform contractors' employees of the dangers of oxygen leakage with regard to welding. The action was taken under Section 2 of the Health and Safety at Work Act, although this Section places duties upon employers with regard to their own employees. It was successfully argued that Section 2(2)(c) can be taken to mean that you have to pass information on to others if the actions of those others would otherwise place your own employees at risk. Repall and Others v Thorn Consumer Electronics (1985) Dealing with WRULDs. Placed the duty to warn at "before the work having inherent risk is begun. Then it is open to employees to say they do not wish to do the job. If no other work available they may be dismissed. This case emphasised the necessity to educate i.e. explain why it is necessary to report problems. Rose v Plenty (1976) Held that if an employer expressly prohibits an action, it still may not remove liability. Involved a milkman carrying a boy on vehicle to help although company prohibited it. (See Selwyn p287.) RTB v Cummings (1955) The Court ruled that a belt was not in motion when pulled by hand as "in motion" relates to "a continuous state of motion" and "in use" means "in use for its normal purpose". This seems to run contrary to the principle established in Summers v Frost. The decision holds that, under the Factories Act, the duty to fence does not apply to: The repair of machinery, The movement of power-driven machinery by hand,

Rotation by inching, and Machinery which is the end product of the factory process. Rylands v Fletcher (1868) A defendant was held to be negligent for the negligence of his contractors. (See Tolley p143.) Scott v London and St Katherine's Docks Co (1865) Clarified the law relating to res ipsa loquitur. Held following points to be important: Employer's control, Not ordinary course, Not reasonable care, No explanation. (See Tolley's p755.) Smith v Baker Ltd (1891) This judgement ruled out volenti non fit injuria defence except where employees were in a breach of statutory duty. (See Selwyn p283.) Smith v Crossley Bros (1951) Held that the employer was not liable if he did not suspect that practical jokes were being played. (See Selwyn p280.) Smith v Scott Bowyers Ltd (1986) The employer was held not to be liable when an employee failed to ask for new boots when the soles became worn thin. (See Selwyn p278.) Summers and Sons v Frost (1955) According to this decision, if it is impossible to use a machine when it is securely fenced, under Section 14 of the Factories Act 1961, then the Act "implicitly prohibits" its use due to the duty being an absolute one. It is up to Parliament to make Regulations to modify this duty in special cases. Sutherland v Hatton (2002) Court of Appeal outlined a 16 point criteria for successful stress cases. Tesco Ltd v Nattrass (1972) Concerning the "directing mind" of a concern. A supermarket manager was held not to be the directing mind just because he had the name "manager" in his job title. (See Selwyn p22.) Thompson v Smith Ship Repairers Ltd (1984) This case was a consolidated action involving six plaintiffs which was taken with the purpose of establishing the legal basis upon which some 20,000 similar claims for hearing loss could be resolved. The case concerns the duty of an employer to take reasonable steps to protect his employees from dangers he knows of or can reasonably be expected to foresee. Employers are held to be liable in negligence if they fail to take reasonable steps to protect employees from known sources of

danger. The Court held that since 1963 all employers have known of the dangers of exposure to excessive noise. This date is therefore established as the "date of knowledge" after which it would be considered reasonable for an employer to foresee danger to his employee's hearing following exposure to excessive levels of noise. Since this date, employers are liable to compensate employees for: Physical injury to hearing; The loss of amenity this causes; Any social handicap resulting. Uddin v Associated Portland Cement (1965) The case offers guidance on "safe by position" under the Factories Act and "of such construction". The Court held that it should be foreseeable, when deciding to rely on safety by position or construction rather than guarding, that a workman may be stupid in his behaviour. The fact that an employee would be acting outside the scope of his employment is not relevant to this matter. In this particular case he was supposedly trying to catch a pigeon. He climbed onto a cabinet, which housed dangerous machinery, and fell in due to it being unguarded. Although he won his action, the compensation awarded was reduced to one fifth due to contributory negligence. Wagon Mound v Morts Dock and Engineering (1961) Held that a person could only be held responsible for reasonably foreseeable consequences of the negligence. This amended the prior position in R v Polemis and Furness Withy and Co. (See Tolleys p344.) Walker v Bletchley-Flettens Ltd (1932) Held that a part was only a dangerous part if a possible cause of injury to someone acting in a way human beings may be reasonably expected to act. (See Tolleys p399.) Ward v Tesco Ltd (1976) Case related to not taking reasonable care to keep premises safe. (See Tolleys p755.) Wellar and Co v Foot and Mouth Research Institute (1966) Held that purely economic loss may be too remote to be recoverable. (See Tolleys p345.) Westminster City Council v Select Management Ltd (1984) Held that common parts of residential premises, such as lifts, may be covered by Section 4 of the Health and Safety at Work Act 1974. (See Selwyn p82.) Westwood v Post Office (1974) Held that Sections 12-16 of the Factories Act apply to all working on premises, so they may apply to those working outside course of employment. (See Selwyn p161.) Wheat v Lacon (1966)

Held the joint occupation of a public house by the person managing it and the owners by defining management responsibilities in a lease. (See Tolleys p144.) White v Pressed Steel Fisher (1980) It was held, in relation to the Safety Representatives and Safety Committee Regulations, that the accessibility of a company course was a legitimate reason for refusing a safety representative time off for training. However; the company course must contain all the elements recommended by the code of practice on safety representatives' training. It was definitely not the case that all sources of training for safety representatives had to be approved or validated by recognised unions or the TUC. Williams v West Wales Plant Hire (1984) The Court of Appeal reversed a previous High Court decision and held that the plant hirer was undertaking building operations, because the "active involvement" of their employee, the mobile crane driver, placed the employer in a position of vicarious involvement. The case concerns the need for evidence in relation to the hire of equipment and the hire of operatives to operate such equipment. It relates to information, instruction given and the competence of the person providing it. Wilsons and Clyde Coal Co Ltd v English (1938) In this case the employer was compelled by law to employ a competent person in the form of a colliery agent, to be responsible for safety in a mine. However; when an accident occurred, the employer was still held to be liable. It was not taken to be a defence that they had delegated the performance to a competent person. The Court held that an employer can delegate performance but not responsibility. While discussing these issues the decision also clarifies the basis for the responsibility of an employer under the common law duty of care. The decision outlines and clarifies the following four elements as being required under the common law duty of care an employer (master) owes to his employees (servants): A safe place of work; Safe plant and equipment; Competent fellow-workers; A safe system of work. Further, the duty is held to be owed to each employee as an individual and not to employees collectively. Therefore, greater precautions are needed with young or inexperienced workers and with those having particular needs. Woods v Durable Suites Ltd (1953) Related to barrier creams. Not enough to make it easy to come by, must also ensure that it is used. (See Selwyn p73.) Young v The Post Office (2002) Court of Appeal decision related to foreseeability and a second breakdown in a stress case. Return