Employers Liability: Primary Liability

• A non-delegable and personal duty (McDermid v Nash Dredging that the employer has to each employee individually (Paris v Stepney Borough Council)

• Wilsons and Clyde Coal v English [1938] – HoL held that there is a general duty owed by an employer to an employee to protect employees

  • Lord Wright clarified three sub-headings of this duty:

    • 1) Provision of competent staff

    • 2) Provision of adequate and safe equipment

    • 3) Provision of a safe place of work (can be merged into 2/4)

    • 4) A proper system of adequate supervision.

  • This duty exists at common law, independent of statute.

• The scope is limited. E.g. An employer does not necessarily owe a duty of care to protect an employee from purely economic or reputational harm (James-Bowen v Commissioner of Police of the Metropolis [2018])

• Wilson v Tyneside Window [1958] – these subheading are for convenience, there is a great deal of overlap.

• 1) Provision of competent staff

  • The employer has an obligation to employ reasonably competent fellow employees to work alongside the claimant. Inc monitoring and disciplining the employees.

  • Hudson v Ridge Manufacturing [1957] – C injured by fellow employee (a ‘not over-intelligent habitual practical joker) in a prank. Foreman had seen past behaviour and reprimanded employee.

    • Held that there was a breach. Where employer knew of behaviour should have taken greater steps to prevent future actions or dismissed workers.

  • Smith v Crossley [1951] – injured fellow employee in one-off practical joke. Not a serial ‘joker’. Employer not liable.

    • However, be liable under vicarious liability as was in the course of employment.

  • May be an action against employee himself is possible but likely a waste of time financially.

• 2) Provision of adequate equipment

  • Smith v Baker [1891] per Lord Herschell

    • An employer has a “duty of taking reasonable care to provide proper appliances, and to maintain them in proper condition.”

  • This approach was deemed too generous to employer by Parliament:

    • Employers’ Liability (Defective Equipment) Act 1969

      • Employer is liable for injury suffered resulting from defective equipment for the purposes of the employer’s business attributable to a third party.

• 3) Provision of a safe place of work

  • An employer must take reasonable steps to see that the place of work is reasonably safe.

  • Latimer v AEC [1953] – factory flooded. Sawdust put down but claimant still slipped. Not liable as the employer had done all that was required of a reasonably competent employer. Objective standard.

  • Wilson v Tyneside Window [1958] – Window cleaner injured on third party premises. Employer liable for injuries that occur on third party premises. However the standard of care is lower.

• 4) A safe system of work with adequate supervision

  • This includes instructions, warning, and training.

  • Employers must enforce the use of safe equipment

    • Bux v Slough Metals [1974] – stopped using safety goggles as they were fogging up. Employer failed to enforce their use.

  • Taking into account that employees often disregard their own safety

    • General Cleaning v Christmas [1958] – window...

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