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PERSONAL INJURY – WORKSHOP 3
section 47(2) of the Health and Safety at Work Act 1974 effectively provided that where an employer had breached
its statutory duty the employee had a civil right of action unless the relevant regulations stated otherwise (which
they didn’t).
s69 of the Enterprise and Regulatory Reform Act 2013 (in force and applicable to accidents at work from 1 October
2013) abolished this strict liability in relation to accidents at work by expressly providing that a breach of duty
imposed by a statutory instrument containing health and safety regulations, or a breach of duty imposed by an
existing statutory duty, shall not be actionable as a civil claim. s69 does not, to date, appear to have had a significant
impact on cases before the court.
• IDENTIFY BASIS OF CLAIM UNDER THE OCCUPIERS’ LIABILITY ACT 1957 AND 1984
Employers’ Liability including Vicarious Liability.
VARIOUS LIABILITY defined if the employee committed a tortious act during the course of his employment. Leaving
the employer responsible for the act committed by his employee if they were performing an authorized act.
(Unauthorized – Not liable).
Lister and Others v Hesley Hall Ltd – HOL held that defendant was vicariously liable for the acts of his employee. HoL
expressed that the court should not concentrate on the nature of the act complained of but rather the closeness of
the connection between the employment and the nature of the tort complained of. Therefore, the closer the
proximity the more liable the defendant would be.
Mohamud v WM Morrison Supermarkets Plc – Supreme Court affirmed Lister’s test but the court should consider
two matters;
• What functions or field of activities were entrusted by the employer to the employee (Nature of the job
broadly interpreted)
• Whether there was a sufficient connection between the position in which he was employed and his
wrongful conduct to make it right for the employer to be held liable.
OCCUPIER’S LIABILITY – Lawful visitors
Occupier’s Liability Act (1957) “OLA”
s.1(1) OLA defined occupier as s.1(2) laid down a test by Lord Denning in Wheat v E Lacon and Co Ltd “who is in
sufficient control?” Whereas a visitor is treated as a invitee/licensee at common law.
• Duty of care
s.2(2) OLA that the visitor would be reasonable safe in all the circumstances in using the premises for the purpose in
which he was invited/permitted by the occupier.
• Discharging that Duty of care
s.2(3) would account the degree of care or want of care that would ordinarily be looked for in a visitor.
Tomlinson v Congleton Borough Council and Another (2002) HOL overturn the CA decision on the basis that it would
be unreasonable to impose a duty to protect people from self-inflicted injuries that they sustained when voluntarily
taking risks in the face of obvious warnings.
• Employer an Independent Contractor
Where a visitor sustained injury due to the execution of an independent contractor work the occupier would not be
treated as the reason alone for endangering the visitor in all the circumstances s.2(4)(b);
a) He acted reasonably in entrusting work to an independent contractor and
b) He had taken such steps if any as he reasonably ought in order to satisfy himself that
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I. The contractor was competent and
II. The work has been properly done.
• Exclusion or modification of duty of care;
s.2(1) OLA a occupier may extend/restrict/modify/exclude his duty to any visitor however this must be read in
conjunction with s.2 Unfair Contract Terms Act where the business liability;
a) Cannot reference to any contract term or notice given to persons generally/particular persons to
exclude/restrict his liability for death or personal injury resulting from negligence.
b) In loss or damages a person cannot restrict/exclude his liability except in so far as the term or notice
satisfies the requirement of reasonableness.
REMOTENESS OF DAMAGES
Defendant liability – If it was foreseeable that the Claimant would have suffered damages of that kind and
C did in fact suffer
Claimant would generally recover for damages;
a) Reasonably foreseeable (once established this C can recover for the full extent on injuries)
b) Shown that it flowed from a direct consequence of that breach.
CAUSATION
• Basic Test for negligence and statutory duty – “But for”
Clough v First Choice Holidays and Flights Ltd Sir Igor express that the C need to establish a causal link between the
negligence of the defendant to his injuries.
However, a breach need not be the sole reason for the C loss but it is sufficient to prove that it materially contributed
to the loss.
• Disease Claims
Fairchild v Glenhaven Funeral Services Ltd; Mathews – The HoL found that where there has been employment by
more than one employer and;
a) Both employers had a duty to take reasonable care to prevent the C from inhaling asbestos dust;
and
b) Both employers were in breach of that duty
c) C subsequently suffer mesothelioma
The C could recover damages from both former employers as the but for test was not necessary under these
circumstances as it was enough for the C to prove that the D had materially increased the risk of injury. Barker v
Corus followed the exception Fairchild gave.
• Compensation Act (2006)
Implications of the HoL in Barker v Corus enforced Parliament to place s.3 Compensation Act; Where mesothelioma
is contracted as a result of negligent exposure to asbestos in the course of employment,
✓ Employers will be held jointly and severely liable for damages caused – meaning employee can
claim from full compensation from any one of the negligent employers.
DEFENCES
• Volenti Non Fit Injuria
Applicable where the person engages in an event being aware and accepting the risk inherent in to that event. In
order to establish the defence the C must show;
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PERSONAL INJURY – WORKSHOP 3
section 47(2) of the Health and Safety at Work Act 1974 effectively provided that where an employer had breached
its statutory duty the employee had a civil right of action unless the relevant regulations stated otherwise (which
they didn’t).
s69 of the Enterprise and Regulatory Reform Act 2013 (in force and applicable to accidents at work from 1 October
2013) abolished this strict liability in relation to accidents at work by expressly providing that a breach of duty
imposed by a statutory instrument containing health and safety regulations, or a breach of duty imposed by an
existing statutory duty, shall not be actionable as a civil claim. s69 does not, to date, appear to have had a significant
impact on cases before the court.
• IDENTIFY BASIS OF CLAIM UNDER THE OCCUPIERS’ LIABILITY ACT 1957 AND 1984
Employers’ Liability including Vicarious Liability.
VARIOUS LIABILITY defined if the employee committed a tortious act during the course of his employment. Leaving
the employer responsible for the act committed by his employee if they were performing an authorized act.
(Unauthorized – Not liable).
Lister and Others v Hesley Hall Ltd – HOL held that defendant was vicariously liable for the acts of his employee. HoL
expressed that the court should not concentrate on the nature of the act complained of but rather the closeness of
the connection between the employment and the nature of the tort complained of. Therefore, the closer the
proximity the more liable the defendant would be.
Mohamud v WM Morrison Supermarkets Plc – Supreme Court affirmed Lister’s test but the court should consider
two matters;
• What functions or field of activities were entrusted by the employer to the employee (Nature of the job
broadly interpreted)
• Whether there was a sufficient connection between the position in which he was employed and his
wrongful conduct to make it right for the employer to be held liable.
OCCUPIER’S LIABILITY – Lawful visitors
Occupier’s Liability Act (1957) “OLA”
s.1(1) OLA defined occupier as s.1(2) laid down a test by Lord Denning in Wheat v E Lacon and Co Ltd “who is in
sufficient control?” Whereas a visitor is treated as a invitee/licensee at common law.
• Duty of care
s.2(2) OLA that the visitor would be reasonable safe in all the circumstances in using the premises for the purpose in
which he was invited/permitted by the occupier.
• Discharging that Duty of care
s.2(3) would account the degree of care or want of care that would ordinarily be looked for in a visitor.
Tomlinson v Congleton Borough Council and Another (2002) HOL overturn the CA decision on the basis that it would
be unreasonable to impose a duty to protect people from self-inflicted injuries that they sustained when voluntarily
taking risks in the face of obvious warnings.
• Employer an Independent Contractor
Where a visitor sustained injury due to the execution of an independent contractor work the occupier would not be
treated as the reason alone for endangering the visitor in all the circumstances s.2(4)(b);
a) He acted reasonably in entrusting work to an independent contractor and
b) He had taken such steps if any as he reasonably ought in order to satisfy himself that
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I. The contractor was competent and
II. The work has been properly done.
• Exclusion or modification of duty of care;
s.2(1) OLA a occupier may extend/restrict/modify/exclude his duty to any visitor however this must be read in
conjunction with s.2 Unfair Contract Terms Act where the business liability;
a) Cannot reference to any contract term or notice given to persons generally/particular persons to
exclude/restrict his liability for death or personal injury resulting from negligence.
b) In loss or damages a person cannot restrict/exclude his liability except in so far as the term or notice
satisfies the requirement of reasonableness.
REMOTENESS OF DAMAGES
Defendant liability – If it was foreseeable that the Claimant would have suffered damages of that kind and
C did in fact suffer
Claimant would generally recover for damages;
a) Reasonably foreseeable (once established this C can recover for the full extent on injuries)
b) Shown that it flowed from a direct consequence of that breach.
CAUSATION
• Basic Test for negligence and statutory duty – “But for”
Clough v First Choice Holidays and Flights Ltd Sir Igor express that the C need to establish a causal link between the
negligence of the defendant to his injuries.
However, a breach need not be the sole reason for the C loss but it is sufficient to prove that it materially contributed
to the loss.
• Disease Claims
Fairchild v Glenhaven Funeral Services Ltd; Mathews – The HoL found that where there has been employment by
more than one employer and;
a) Both employers had a duty to take reasonable care to prevent the C from inhaling asbestos dust;
and
b) Both employers were in breach of that duty
c) C subsequently suffer mesothelioma
The C could recover damages from both former employers as the but for test was not necessary under these
circumstances as it was enough for the C to prove that the D had materially increased the risk of injury. Barker v
Corus followed the exception Fairchild gave.
• Compensation Act (2006)
Implications of the HoL in Barker v Corus enforced Parliament to place s.3 Compensation Act; Where mesothelioma
is contracted as a result of negligent exposure to asbestos in the course of employment,
✓ Employers will be held jointly and severely liable for damages caused – meaning employee can
claim from full compensation from any one of the negligent employers.
DEFENCES
• Volenti Non Fit Injuria
Applicable where the person engages in an event being aware and accepting the risk inherent in to that event. In
order to establish the defence the C must show;
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