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Published: Fri, 02 Feb 2018
Negligence in employment: Protective equipment
A mandatory protective equipment regulation applies to Buy Your Choice Plc.
Lonna, Kim and Jane work for the company at the filling and sealing section. One day a Bee settled on Lonna’s face. In order to swat the Bee she took of her protective gloves and accidentally spilt some acid over her bare hand. Kim, the first Aid staff, placed Lonna’s hand under the cold water in order to alleviate the effect of the acid. Due to the accident, Lonna will no longer be able to do manual work. Kim and Jane suffered post traumatic stress and could not work any longer. Jane however had a history of “chronic fatigue syndrome”. Advise the various parties of their rights and obligations in tort.
Buy You Choice Plc has a duty to provide a safe system of work, proper equipment and competent staff for its employees. The performance of the duty can be delegated to a third party but responsibility for its negligent performance and consequent liability cannot.
In order for any of the parties to have a claim under the tort of negligence against Buy Your Choice Plc they must establish that a duty of care exists between claimant and defendant, this duty was breached and that the breach led to injury as established in the case of Donahue and Stevenson (1932) . In establishing whether there is a duty of care between parties Lord Wilberforce laid down the test in Anns v Merton LBC (1977)  and it was further developed by Lord Bridge in Caparo Industries v Dickman (1990) . A duty of care arises where the damage is foreseeable, there is a proximate relationship between the parties and it is just and equitable to impose such a duty.
Breach of statutory duty is another tort which may be considered in the circumstances. This is separate from the tort of negligence. Here, the burden of proof is on BuyYour Choice Plc to prove that it was not reasonably practicable to comply with the regulation and in many cases liability may be strict as held in Dairies v Health and Safety Executive (2002) . The company has a civil duty to comply with the Workplace (Health, Safety and Welfare) Regulations 1992, the Provision and Use of Work Equipment Regulations 1998, the Control of Substances Hazardous to Health Regulations 1999 and Health and Safety (First Aid) Regulations 1981.
Lonna’s chances of success in an action against her employer Buy Your Choice limited will depend on how far the company has gone to fulfilling its duties to provide a safe working environment. The employer also has a responsibility to ensure that the employees know what the safety rules and regulations are as was established in Wilson v Tyneside Window Cleaning Co (1958). Lonna was clearly provided with safety gloves by her employer which she wore until the bee landed on her face. Leach v British Oxygen Co (1965)  held that the plaintiff’s whose job was to break up calcium chloride, used the wrong equipment for it and was consequently injured by an explosion could not sue his employer. We can therefore assume that Lonna knew of the safety requirements involved in her line of work and the need to take necessary precautions to protect her hands when handling harmful chemicals. It would be difficult to attach liability to the employer as a result of her decision to remove the safety gloves provided to her.
Latimer v AFC Ltd 1953 established that if the employer has taken all the steps expected by a prudent employer, then there will be no liability at common law. In Cummings (or McWilliams) v Sir William Arrol & Co   it was held that the employer was not liable for the injury sustained by an employee who was not provided a safety belt as if he had been provided one it is unlikely that he would have worn it. That being the case Buy Your Choice Plc is unlikely to be liable for negligence if they actually provided Lonna with the safety gloves and she took them off whilst still being in danger of the harmful acid.
General Cleaning Contractors v Christmas however provides that if there was a general practice of ignoring safety instructions the employer would be expected to go further in training and highlighting potential dangers to employees. Baker v T. Clarke Ltd  is further evidence of this as it states that an employer’s liability is only triggered where there is some knowledge that safety precautions are not being complied with by staff and the necessary training and reminders are not provided. If the employer has given guidance and training to the employee however, they are not obliged to also give repetitive reminders.
If Lonna was to bring an action in negligence against Buy Your Choice Plc, the company is likely to submit that a defence of ‘volenti non fit injuria’ applies. This is a defence to a claim in negligence which states that there is no liability where the injured party engaged in an activity aware of the risks involved. Here Lonna taking off her gloves engaged in such activity knowing that she had hazardous chemicals close by. In Ginty v Belmont Building Specialists  it was held that the defendants had fulfilled their obligations by supplying the right equipment to the claimants and therefore the defendants could not be liable for the injury sustained as s result of not using them.
In McFarlane v EE Caledonia Ltd   it was held that a rescuer would be deemed to have participated sufficiently in an accident in order to recover damages for nervous shock due to a fear of physical injury to himself. Again the gravity of the accident will be integral in deciding whether psychiatric harm was reasonably foreseeable. On the basis that the injury to Lonna’s hand was sufficiently serious and Kim was in close proximity to Lonna and perhaps feared for her physical safety, Kim may have a claim in negligence.
Kim could claim that Buy Your choice Plc is vicariously liable for Lonna negligent act providing that Lonna is an employee of the company. In Montreal v Montreal Locomotive Works  Cooke J said the test was whether the person is in business on his own account. If he is then he is a contractor, but if he is not he is an employee.
On the basis that Lonna is an employee as the facts suggest, Kim would have to show that she acted negligently in the course of her employment. In Twine v Bean’s Express Ltd   where a hitchhiker was consequently injured in a car accident due to the negligent actions of the employee it was held that the incident did not take place during the course of employment but outside it. In Rose v Plenty  however a milkman who hired a 13 year old boy who was consequently injured during a milk round was held to have acted during the course of his employment. Here it seems that Both Kim and Lonna were on the work premises with the dangerous chemicals around. The fact that Lonna had her gloves on suggests that she was in the course of carrying out her job at the time.
In Chadwick v BRB it was held that a claimant who suffered from anxiety neurosis as a secondary victim had a cause of action in negligence against the defendants and it did not matter that he had a preexisting psycho neurotic condition. The court will have to consider evidence about Jane’s preexisting condition of post traumatic stress disorder to come to a decision. If her condition was current at the time of the incident this will not preclude a claim in negligence as in Robinson v Post Office   it was held that the tortfeasor must take his victim as he finds him.If Jane did have a claim in negligence, like with Kim it is likely to be a case of vicarious liability against Buy Your Choice Plc on the basis that Lonna acted negligently whilst she was in the course of her employment causing her psychiatric injury.
It appears that Lorna, Kim and Jane are all employees working in the same department so Buy Your choice Plc will be vicariously liable for Lonna’s negligent act which would give Kim and Jane an avenue to seek remedy for their injuries. Buy Your Choice Plc. appears to have complied with the statutory regulations stipulating that protecting clothing should be worn when handling hazardous substances. On the basis that protective gloves were provided to Lonna in compliance with the statutory regulation there will be no cause in action for breach of statutory duty in this regard. However, Lonna could claim that Kim the First Aid staff was negligent or in breach of statutory duty in the application of treatment after the accident and because of Kim’s intervention she is in a worse state now than if she had not received the treatment. This would also mean that Buy Your choice Plc is vicariously liable under the Health and Safety (First Aid) Regulations 1981 which provide that employers are bound to provide competent, properly trained first aid staff for their employees. If Kim did not carry out the first aid procedure correctly and this worsened Lonna’s injury causing her not to be able to use her hand, then Lonna will also succeed in an action of negligence and breach of statutory duty against Buy Your Choice Plc.
Wilsons and Clyde Co v English (1937)
Donahue and Stevenson (1932)
Anns v Merton LBC (1977)
Caparo Industries v Dickman (1990)
Dairies v Health and Safety Executive (2002)
Wilson v Tyneside Window Cleaning Co (1958)
Leach v British Oxygen Co (1965)
Latimer v AFC Ltd (1953)
Cummings (or McWilliams) v Sir William Arrol & Co([1962)
General Cleaning Contractors v Christmas 1952
Baker v T. Clarke Ltd (1992)
Ginty v Belmont Building Specialists
McLoughlin v O’Brian (1982)
Alcock v Chief Constable of South Yorkshire (1991)
McFarlane v EE Caledonia Ltd (1994)
Montreal v Montreal Locomotive Works (1947)
Twine v Bean’s Express Ltd (1946)
Rose v Plenty (1976)
Chadwick v BRB (1967)
Robinson v Post Office (1974)
Tort Winfield and Jolowicz, 17th Edition Sweet and Maxwell
Tort, Paula Gilker 2nd Edition, Sweet and Maxwell
Tort Law text and Materials Mark Lunney, 3rd Edition Oxford University Press
Tort Law, Markesinis and Deakin’s, 5th Edition, Oxford University Press
Textbook on Torts, Michael A Jones, 8th Edition, Oxford University Press
 Wilsons and Clyde Co v English (1937) 1937 3 All ER 628
 1942 AC562
 2 All ER 492
 1 All ER 568
 EWCA Crim 2949
 2 All ER 265
 Current Law Year Book 2725
 2 All ER 449
 1 All ER 623
  2 All ER 1110
 Current Law Year Book 2019
 (1959) 1 All ER 414
 2 All ER 1, CA
 1 DLR 161
 1 All ER 202
 1 All ER 97
 2 All ER 945, QBD
 2 All ER 737
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