LAWS41501 Tort Law & Civil Remedies

HANDOUT: LECTURE 9: EMPLOYER’S LIABILITY

“AN EMPLOYER’S JOB IS NEVER DONE”

1. Introduction

If an employee is injured at work, he or she may be able to establish that the

employer is in breach of the personal duty owed to him or her. This is an area which
is interwoven with statutory provisions since there are many statutes which impose
specific duties in relation to health and safety within the workplace. An employers’
liability in tort for injury caused to their employees can take one of the following
forms:

- the employer may be vicariously liable for a tort committed by another

employee and which has injured the employee in question;

- the employer may be in breach of a specific statutory duty which has

caused injury to the employee;

- the employer may be in breach of their personal ‘non-delegable’ duty

of care to the employee which has resulted in injury.

1.1 Background

Historically, it was not until the late 19th century that employees were able to
proceed with such claims.

The courts originally took the view that the doctrine of common employment
precluded an action against the employer where the employee had been injured by
the actions of a fellow employee (Priestley v Fowler (1837) 1 M&W 1 Ex Ch),
the rationale for this being that the employee had impliedly agreed to accept any
risks incidental to his contract of employment.

There was also concern expressed for the possible financial burden placed on
employers having to pay compensation for industrial accidents if such actions were
allowed to proceed.
In addition, the defences of volenti and contributory negligence removed any chance
of success in such claims, as volenti in particular was freely available to the
employer. During the 20th century, the tort of employers’ liability was developed by
the judges, who introduced the concept of ‘non-delegable’ duties.

Employers’ liability is a negligence-based tort, in that it is a specialised form of

negligence arising out of a duty imposed by the employer/employee relationship. It
is, therefore, necessary to refer to the basic elements of that tort. It gives the
employee the right to sue the employer when injured at work for negligent acts by

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the employer arising out of the course of his or her employment.

In order to ensure that the employer can pay any award of damages, the
Employers’ Liability (Compulsory Insurance) Act 1969 imposes a duty on the
employer to take out the necessary insurance cover.

2. Employers’ Liability: the Nature of the Duty of Care

The employer’s duty of care is owed to each individual employee and, as it is a

personal duty, it cannot be delegated by the employer to anyone else. This
was made quite clear in Wilsons and Clyde Coal Co v English [1938] AC 57,
where the day to day responsibility for a mine was delegated to a mine manager, as
required by statute. However, the court concluded that the ultimate responsibility for
health and safety remained with the employer (see also McDermid v Nash
Dredging and Reclamation Ltd [1987)] AC 906 which reaffirms this principle).

The duty is only owed whilst the employee is acting within the course of
his or her employment, that is, doing something reasonably incidental to the
employee’s main job. For example, in Davidson v Handley-Page Ltd [1945] 1
All ER 235, the claimant was washing his teacup in the sink at his place of work
when he slipped and hurt his leg whilst standing on a duckboard. The duckboard
had become slippery because water was constantly splashed upon it. It was held
that the employer was in breach of his duty, because the employee was carrying out
a task which was reasonably incidental to his job; tea breaks were an accepted part
of working life.

As a general rule, employees are not acting within the course of their employment
whilst travelling to and from work. The exception to this was recognised in Smith v
Stages and Darlington Insulation Co Ltd [1989] 1 All ER 833, which offers
some protection to peripatetic workers or any employee who may have to work
away from his or her main base. Where employees are paid their normal wage for
this travelling time, they will be within the course of their employment.

As the duty is of a personal nature, the standard of care will vary with the
individual needs of each employee. It follows, therefore, that special regard
must be had for the old, young, inexperienced and less able bodied. The general
nature of the duty can be expressed as follows: the employer must take
reasonable care in the way he conducts his operations so as not to subject
his employees to unnecessary risks (Smith v Baker & Son [1891] AC 325).

3. Scope of the Employer’s Duty

This was outlined in Wilsons and Clyde Coal Co v English [1938] AC 57.
Following this case, the employer’s duty has been determined as extending to the
provision of:

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- competent fellow employees;

- safe plant and appliances;
- a safe place of work; and
- a safe system of work.

However, it has been recognised that there is often an overlap between the duties
owed at common law and the duties implied into the contract of employment,
breach of which would allow the employee to pursue either course of action (see
Johnstone v Bloomsbury HA [1991] 2 All ER 293.

The remit of the employer’s duty is open to expansion through the case law. It does
not, however, extend to the provision of insurance cover against special risks – Reid
v Rush and Tomkins Group plc [1990] 1 WLR 212.

3.1 Competent Fellow Employees

The employer must ensure that all his or her staff are competent to do the job which
they have been employed to do. The employer must, therefore, make sure that they
have the necessary experience and qualifications, and, where necessary, must be
prepared to train them accordingly.

If an employee is injured as a result of the incompetence of a fellow employee, then

the employer may be liable. The word ‘incompetence’ covers a range of ineptitudes;
many of the cases arise out of practical jokes. In this situation, whether the
employer is liable will depend on the depth of knowledge about the incompetent
employee. If, for example, the employer has been put on warning or given notice
that the employee is capable of committing an incompetent act, such as a practical
joke, the employer will be liable. If necessary, the duty extends to disciplining, or
even dismissing, employees who fail to act on warnings about their conduct.

O’Reilly v National Rail and Tramway Appliances Ltd [1966] 1 All ER 499
Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348
Smith v Crossley Bros Ltd (1951) 95 SJ 655

Waters v Commissioner of Police for the Metropolis [2000] 4 All ER 934

takes the issue one step further by placing a common law duty of care on the
employer to protect his employees against victimisation and harassment by fellow
employees, which may give rise to physical or psychiatric injury.

3.2 Safe Plant and Appliances

The employer must not only provide his employees with the necessary plant and
equipment to do the job safely, but he or she must also ensure that such plant and
equipment is safe, that is, properly maintained. For example, guards must be
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provided on dangerous machinery to protect the employee from injury and these
guards must be inspected regularly to ensure that they are securely in position and
are not damaged in any way.

Bradford v Robinson Rentals Ltd [1967] 1 All ER 267

Employers’ Liability (Defective Equipment) Act 1969

This Act is potentially wide in scope: ‘equipment’ has been held to include a
defective ship (Coltman v Bibby Tankers Ltd [1988] AC 276) and a flagstone
(Knowles v Liverpool CC [1993] 1 WLR 1428).

3.3 Safe place of work

The employer must ensure that his employees are not exposed to any dangers
arising out of the place where the employee is expected to work. This covers any
place under the control of the employer, including access and egress, and may
extend to the premises of a third party.

In the latter case, the employer may not reasonably be expected to go to the same
lengths as he or she would on his own premises. However, at the very least it may
be necessary to warn the employee of the dangers when visiting/working on the
premises of a third party (see Wilson v Tyneside Window Cleaning Co [1958]
2 QB 110).

Smith v Vange Scaffolding and Engineering Co Ltd [1970] 1 All ER 249

Rahman v Arearose Ltd [2001] QB 351

The remit of this duty extends to consideration of the nature of the place and the
potential risks involved, the work to be carried out, the experience of the employee
and the degree of control or supervision which the employer can reasonably
exercise. There may be situations where providing a safe place of work overlaps with
the employer’s duty to provide a safe system of work. Finally, the duty may apply
where the employer sends employees overseas to work (see Square D Ltd v Cook
[1992] IRLR 34.)

Providing a safe place of work extends to protecting staff from the risks of passive
smoking. In Waltons and Morse v Dorrington [1997] IRLR 489, it was stated
that there is ‘an implied term that the employer will provide and monitor for
employees, so far as is reasonably practicable, a working environment which is
reasonably suitable for the performance by them of their contractual duties.
This extends to the right of an employee not to be required to sit in a smoke filled
atmosphere’.

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3.4 Safe System of Work

The duty on the employer to provide a safe system of work extends to a

consideration of the following by the employer: the physical layout of the job; safety
notices; special procedures; protective clothing; training; and supervision.

In order to fulfil this duty, the employer must take into account all foreseeable
eventualities, including the actions of any employees. Any system, to be safe, must
reduce the risks to the employee to a minimum; it is accepted that not all risks can
be eliminated. Furthermore, the employer must do more than introduce a safe
system of work; he or she must ensure that it is observed by the employees. The
case law highlights the breadth of this duty.

For example, it can extend to preventing staff being exposed to risk of

violence if this is a foreseeable risk, as in Charlton v Forrest Printing Ink Co Ltd
[1980] IRLR 331

Lloyd v Ministry of Justice [2007] EWHC 2475 (QB)

This aspect of the duty will also cover claims for compensation for work-related
upper limb disorder, as in Bettany v Royal Doulton (UK) Ltd (1993) 213 HSIB
20. This was questioned as a result of the decision of the House of Lords in
Pickford v Imperial Chemical Industries plc [1998] 3 All ER 462. The House
of Lords concluded that, in order to recover for work-related upper limb disorder, it
must be organic in origin. In this particular case, whilst the claimant suffered from
cramp of the hand, the question of whether it was due to repetitive movement and
organic in origin was unresolved, due to inconclusive evidence.

Furthermore, in Alexander & Others v Midland Bank plc [2000] EWCA Civ
1918, the Court of Appeal concluded that where upper limb disorder is physical
rather than psychogenic in origin and can be linked to an unsafe system of work, a
personal injury claim will succeed.

Instruction and Supervision?

Is it sufficient to order an employee to take safety precautions, or should they be

supervised as well if the duty is to be satisfied? The answer depends on the degree
of risk and the experience of the employee concerned, including how far the
employee has been warned of the risks. It is, however, quite clear from the decision
in Pape v Cumbria CC [1992] 3 All ER 211 that merely providing protective
clothing without warning of the risks may not be sufficient to discharge the duty.

Woods v Durable Suites Ltd [1953] 1 WLR 857

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Bux v Slough Metals Ltd [1973] 1 WLR 1358

4. Safe System of Work and 'Occupational Stress'

We have seen from the above that employers’ liability has developed largely through
cases involving negligent accidents at work. Following developments in medical
knowledge about the impact of work-related stress on health an emerging area in
employers’ liability is the issue of ‘stress at work’ claims.

Whilst it could be argued that such cases are a branch of psychiatric injury within
common law negligence, the basis of many such claims arise from arguments that
the stress arose from employees being subjected to unsafe systems of work and
hence the claims can be argued to fall within the ambit of employers’ liability.

For example, in Walker v Northumberland CC [1995] 1 All ER 737 the scope

of the duty to provide a safe system of work was extended to include the
requirement to provide working conditions which do not cause undue stress to
employees.

Following Walker there has been a significant increase in claims involving alleged
stress at work. In Sutherland v Hatton [2004] IRLR 475 the Court of Appeal
took the opportunity to introduce some guidelines for determining an employer’s
liability for psychiatric illness caused by stress at work. The appeal involved appeals
by four separate employers who had been found liable for stress at work claims in
different county courts. The appellants argued that negligence had not been
established against them.

The Court of Appeal indicated that the key factors are whether such harm is
reasonably foreseeable and ‘whether the employer failed to take the steps
which are reasonable in the circumstances bearing in mind the magnitude
of the risk of harm occurring, the gravity of the harm which may occur, the
costs and practicability of preventing it and the justification for running
the risk’.

An employer was entitled to assume that an employee could withstand the normal
pressures of a job unless they were aware of a particular problem or vulnerability.
The court indicated it was necessary to distinguish such claims from general
psychiatric injury claims and apply ordinary principles of employers’ liability.

The Court of Appeal applied the decision in Hatton in Bonser v RJW Mining (UK
Ltd) [2003] IRLR 164 stressing the importance of establishing foreseeability in
work-related stress cases. The external evidence that the employee, in this case,
was not coping was a public display of tears a year before she was forced to give up
work due to a stress-related psychiatric illness. The Court of Appeal felt that this was
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insufficient and did not provide adequate notice of foreseeability of work-related

stress.

One of the unsuccessful claimants in Hatton appealed against the decision by the
Court of Appeal and this appeal was allowed by the House of Lords in:

Barber v Somerset CC [2004] 1 WLR 1089

The claimant sued his employers for breach of duty. The House of Lords relied on
the judgement of Hale LJ in Hatton v Sutherland who had remarked:

‘ But in every case it is necessary to consider what the employer not only could but
should have done. We are not here concerned with such comparatively simple
things as gloves, goggles, earmuffs or non-slip flooring. Many steps might be
suggested: giving the employee a sabbatical; transferring him to other work;
redistributing the work; giving him some extra help for a while; arranging treatment
or counselling; providing buddying or mentoring schemes to encourage confidence;
and much more. But in all of these suggestions it will be necessary to consider how
reasonable it is to expect the employer to do this, either in general or in the
particular…’

Since Hatton and Barber, the principles and guidelines have been applied in a
number of cases. In Hartman v South Essex Mental Health and Community
Care NHS Trust [2005] EWCA Civ 6, the claimant had provided information
about a previous breakdown and her vulnerability to stress in a confidential medical
questionnaire to the occupational health department. The Court of Appeal, applying
Hatton held that it was not reasonably foreseeable to her employers that she would
suffer psychiatric injury and they were not in breach of duty.

In Daw v Intel Corporation [2007] EWCA Civ 70 the claimant, described as a

highly efficient, conscientious and loyal employee, suffered psychiatric injury as a
result of overload. Despite the fact that the employer had provided counselling
services, the employer was still held to have breached their duty of care by failing to
take steps to alleviate the problem of ‘overload’ once they had become aware of the
problem.

See also: Dickins v O2 [2008] EWCA Civ 1144

To conclude, of interest, is the fact that both Daw and Dickins involved large private
sector organisations and the courts seem willing to take a more robust approach to
stress at work claims particularly where such organisations have resources to cope
with work overload.

5. Breach of Duty

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Once duty is established, the remaining essentials are judged on the same basis as
any action in negligence. The burden is on the employee to show that the employer
is in breach of his or her duty. The employee must prove fault on the part of the
employer, that is, has the employer failed to act as a reasonable employer?
Alternatively, can res ipsa loquitur be established? If the employer has taken all
reasonable precautions, considering all the circumstances of the case, then he or she
will not be liable.

The standard of care will vary with respect to the individual needs of each employee.
The employer must have special regard for the old, young, inexperienced and
employees with special disabilities; that is, the standard of care will be increased.

6. Causation

Having established duty and breach, the employee must show that injury has been
suffered as a result of the employer’s breach of duty. Injury is not confined to
physical injury; it includes damage to personal property, loss of earnings, etc. The
test for establishing liability is the one used in negligence: the ‘but for’ test (see
previous lectures). The question which has to be answered by the court is,
therefore, but for the employer’s breach of duty, would the employee have been
injured? If the answer is no, causation is established.

Even after causation has been established, the employer is not necessarily liable for
all the damage to his or her employee. The employer will only be liable for
foreseeable damage. This does not mean that the precise nature or extent of the
injury has to be foreseen, only that some harm will result from the breach of duty.
However, there is a legal limit to the extent of liability imposed by The Wagon
Mound.

Further Reading:

Marnham, M (2007) ‘Stressed Out’ New Law Journal 309

Mullany, N.J. (2002) ‘Containing claims for workplace mental illness’ 118 LQR 373

Majrowski v Guy’s (2006) at:

http://www.parliament.the-stationary-office.com/pa/ld200506/ldjudgmt/jd060712/
major.pdf

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