4.1.2 Personal Liability Lecture

The Duty to Take Reasonable Care to Ensure the Safety of Employees

Any given employer holds a duty to take reasonable care to ensure the safety of their employees. The duty is personal and non-delegable, Wilsons & Clyde Co Ltd v English [1938].

Safe Place of Work

In order for a place of employment to be considered safe, it must include safe premises in a safe working environment. The standard which must be met is that of the ‘reasonably prudent employer’, Latimer v AEC Ltd [1953].

The duty extends to situations in which employees are tasked with going off-site to work in places not controlled by their employer, Wilson v Tyneside Window Cleaning [1958]. This duty will be heightened if the employer is aware of a particular off-site hazard, General Cleaning Contractors v Christmas [1954].

The location of where the work is to be done, the nature of the building in which the work is completed, the nature of the work required, the expertise and experience of employees, the degree of control which might be expected from the employers, and whether the employer is aware of any particular dangers which might manifest themselves are all relevant factors, Cook v Square D [1992].

Safe Equipment (and Materials)

An employer must provide equipment and materials which are safe and properly maintained, Knowles v Liverpool County Council [1993]. However, if an employer can establish that defective or lacking equipment did not cause their employee’s injuries, then they will avoid liability, McWilliams v Sir Arrol & Co Ltd [1962].

Safe System of Work

It is difficult to pin down exactly what characteristics a good or bad system of work has, and for this reason courts tend to take a case-by-case approach to evaluating whether liability exists, Speed v Thomas Swift & Co Ltd [1943]. This may include situations where employees are not warned of a given danger, Pape v Cumbria County Council [1992]. It is not enough that an employer simply provides a safety measure and then forgets about a particular risk, Bax v Slough Metals [1973]. If a particular risk has manifested itself, an employer will be mandated to take preventative action, Rahman v Arearose Ltd [2001].

The duty extends to protecting the mental health of employees, Walker v Northumberland County Council [1995]. This causes an issue of foreseeability with regard to which employees may suffer psychiatric harm in the workplace.

There is a limit to the actions of an employer in respect of providing a safe working system, Woods v Durable Suites Ltd [1953].

Competent Staff

Employers must provide competent colleagues for their employees, a duty distinct from vicarious liability. Where an employee has acted poorly but outside of the remit of their duties, this duty may be engaged, Hudson v Ridge Manufacturing Co Ltd [1957].

Other Issues in Employers’ Liability

It must be fair, just and reasonable to impose a duty in the given situation. Whether a particular risk is acceptable will be context specific and take into account policy considerations, Mulcahy v Ministry of Defence [1996].

Though the four elements of a safe workplace discussed above provide a solid framework for investigating workplace safety, they do not form the hard limits to an employer’s duty. The imposition of negligence in general always depends on the Caparo test.

The duty to provide a safe workplace does not extend to all of those employed by the employer; there must be a relationship of employer-employee in place and as such independent contractors cannot rely on an employer’s common law duty. 

The duty exists towards each individual employee, Paris v Stepney Borough Council [1951].

There exists a limit to the expected standard of care, Withers v Perry Chain Co Ltd [1961].

Modification of the duty is generally impossible, Johnston v Bloomsbury Health Authority [1992].

Defences

Employees can use common law defences when fighting a claim, the most relevant of which will be consent or contribution.


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