Employers Liability
Introduction
An employer’s liability in tort typically arises in one of three ways:
An employer owes a non-delegable common law duty of care to their
employees and therefore may be personally liable for harm caused to their
employees.
An employer may also be liable in the tort of breach of statutory duty, which
enables a claimant in certain circumstances to recover compensation for
losses caused by the defendant’s failure to comply with a statutory
obligation.
An employer may also be liable vicariously for injuries caused by an
employee’s tort committed in the course of their employment.
An Employer’s Personal Non-Delegable Duty of Care
The defence of contributory negligence before 1945.
Wilson & Clyde Coal Co Ltd v English (1938).
The defendants had employed the complainant, Mr English.
He was working on a repair to an airway on the Mine Jigger Brae, which was
used as part of the haulage system. He was going to the bottom of the mine
pit when the haulage was started.
Although he had tried to evade the danger through a manhole, he was
trapped by machinery and it crushed him to death.
The defendants and employers, Wilsons & Clyde Co Ltd, tried to claim that it
was Mr English’s own negligence that had resulted in his death; he could
have taken an alternative route or alerted the employee in charge of the
machinery for it to be.
It was held that the defendants had delegated the organisation of a safe
working system to one of their employees on the site and they had taken all
reasonable steps to ensure they entrusted this duty to an experienced
employee.
Thus, they were held not to be liable for damages. The complainant appealed
on the issue of whether employers had a non-delegable duty of care towards
the safety of workers.
The House of Lords decided that Wilsons & Clyde Co Ltd, as an employer, had
a duty of care to ensure a safe system of work and this duty could not be fully
delegated to another employee.
Thus, the defendants always remain responsible for a safe workplace for their
employees and are vicariously liable for any negligence of another.
This duty includes three aspects; providing proper materials, employing
competent workers and providing valuable supervision.
The defendants were liable for damages.
How does this duty relate to vicarious liability?
The doctrine of ‘common employment’ was abolished in 1948.
, An employer’s non-delegable duty is typically said to have four components:
A competent workforce.
Adequate material and equipment.
A safe system of working (including effective supervision).
A safe workplace.
Competent Workforce
Hudson v Ridge Manufacturing (1957).
The claimant was an employee of the defendant and was injured at work as
the result of a prank from a fellow employee.
The employee concerned was known to the employer to have a reputation
for playing tricks and pranks on fellow employees and had been told to stop
this kind of behaviour on numerous occasions because it may result in harm.
On the day in question, the employee got hold of the claimant and forced
him to the ground, injuring the claimant’s wrist.
The claimant claimed against the employer.
The issue here was whether an employer held a duty of care to ensure that
their employees were safe at work, including ensuring that other employees
did not pose a risk of harm.
It was held that the claimant’s injury was caused by the employer’s failure to
put a stop to the persistent behaviour of the other employee.
The employer was under a duty to its employees to ensure that such risks
were not present in the workplace.
The employer’s duty extended to ensuring that the behaviour of the
employee stopped, and if the employee did not stop behaving in the
complained of manner, removing the employee.
Note the breadth of this duty.
This aspect of an employer’s duty is useful where they are not vicariously liable.
An employer may find themselves personally (as well as vicariously) liable should
they fail in relation to their duty not to expose their employees to bullying,
victimisation or harassment by their fellow employees.
Adequate Material and Equipment
Davie v New Merton Board Mills Ltd (1959).
Employer’s Liability (Defective Equipment) Act 1969 section 1.
o Section 1(1) – the employee must prove that the defect was (wholly or partly)
caused by the fault of a third party.
o Section 1(3) – defines ‘equipment’ as ‘any plant and machinery, vehicle,
aircraft or clothing’.
Introduction
An employer’s liability in tort typically arises in one of three ways:
An employer owes a non-delegable common law duty of care to their
employees and therefore may be personally liable for harm caused to their
employees.
An employer may also be liable in the tort of breach of statutory duty, which
enables a claimant in certain circumstances to recover compensation for
losses caused by the defendant’s failure to comply with a statutory
obligation.
An employer may also be liable vicariously for injuries caused by an
employee’s tort committed in the course of their employment.
An Employer’s Personal Non-Delegable Duty of Care
The defence of contributory negligence before 1945.
Wilson & Clyde Coal Co Ltd v English (1938).
The defendants had employed the complainant, Mr English.
He was working on a repair to an airway on the Mine Jigger Brae, which was
used as part of the haulage system. He was going to the bottom of the mine
pit when the haulage was started.
Although he had tried to evade the danger through a manhole, he was
trapped by machinery and it crushed him to death.
The defendants and employers, Wilsons & Clyde Co Ltd, tried to claim that it
was Mr English’s own negligence that had resulted in his death; he could
have taken an alternative route or alerted the employee in charge of the
machinery for it to be.
It was held that the defendants had delegated the organisation of a safe
working system to one of their employees on the site and they had taken all
reasonable steps to ensure they entrusted this duty to an experienced
employee.
Thus, they were held not to be liable for damages. The complainant appealed
on the issue of whether employers had a non-delegable duty of care towards
the safety of workers.
The House of Lords decided that Wilsons & Clyde Co Ltd, as an employer, had
a duty of care to ensure a safe system of work and this duty could not be fully
delegated to another employee.
Thus, the defendants always remain responsible for a safe workplace for their
employees and are vicariously liable for any negligence of another.
This duty includes three aspects; providing proper materials, employing
competent workers and providing valuable supervision.
The defendants were liable for damages.
How does this duty relate to vicarious liability?
The doctrine of ‘common employment’ was abolished in 1948.
, An employer’s non-delegable duty is typically said to have four components:
A competent workforce.
Adequate material and equipment.
A safe system of working (including effective supervision).
A safe workplace.
Competent Workforce
Hudson v Ridge Manufacturing (1957).
The claimant was an employee of the defendant and was injured at work as
the result of a prank from a fellow employee.
The employee concerned was known to the employer to have a reputation
for playing tricks and pranks on fellow employees and had been told to stop
this kind of behaviour on numerous occasions because it may result in harm.
On the day in question, the employee got hold of the claimant and forced
him to the ground, injuring the claimant’s wrist.
The claimant claimed against the employer.
The issue here was whether an employer held a duty of care to ensure that
their employees were safe at work, including ensuring that other employees
did not pose a risk of harm.
It was held that the claimant’s injury was caused by the employer’s failure to
put a stop to the persistent behaviour of the other employee.
The employer was under a duty to its employees to ensure that such risks
were not present in the workplace.
The employer’s duty extended to ensuring that the behaviour of the
employee stopped, and if the employee did not stop behaving in the
complained of manner, removing the employee.
Note the breadth of this duty.
This aspect of an employer’s duty is useful where they are not vicariously liable.
An employer may find themselves personally (as well as vicariously) liable should
they fail in relation to their duty not to expose their employees to bullying,
victimisation or harassment by their fellow employees.
Adequate Material and Equipment
Davie v New Merton Board Mills Ltd (1959).
Employer’s Liability (Defective Equipment) Act 1969 section 1.
o Section 1(1) – the employee must prove that the defect was (wholly or partly)
caused by the fault of a third party.
o Section 1(3) – defines ‘equipment’ as ‘any plant and machinery, vehicle,
aircraft or clothing’.
