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Employer Personal Liability Notes

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Employer's Personal Liability The old state of the law

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"Common Employment" Doctrine o An employer could defeat any claim against them if
? Injury was caused by action of a fellow employee to C
? Employer had taken reasonable care in choosing the employee in question. o Basically, the employer had delegated this duty of health and safety at Law to employee
? So injured C could only claim against fellow employee

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Which would often not be practical and worthless Circumventing the Doctrine (and eventually abolishing it)

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This doctrine was circumvented in 20 th Century by making duty at Law "nondelegable" o Wilson and Clyde Coal Co v English [1938]:
? Lord Macmillan:

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E has duty to provide safe system of work o A may discharge it on E's behalf o But this doesn't stop it being E's duty
? And he can't escape liability by pointing out he has employed a competent agent.

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If E's duty not performed, he is liable, no matter how competent agent employed to perform it was.
? Lord Wright:

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Risk confusion by talking of duties that can and cannot be delegated o Have to ask: "What is the extent of liability that can attach itself to an employer?"
? Such a duty is the employer's duty, whether he performs itself or gets others to do it for him

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Failure to perform such a duty is an employer's personal negligence.

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Nature of Duty Owed by Employers to Employees o Competent Staff
? If E doesn't train staff properly/ hires disreputable people
? Or takes reasonable care to stop any careless behaviour/ "practical jokes" or sustained bullying etc.

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Then E can be personally liable if employee injures another. o Provision of adequate plant and equipment, and safe place to work
? Davie v New Merton Board Mills [1959]: X injured when using tool provided by E which had been bought from reputable employer, latent defect in tool reasonable inspection could not have found.

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Viscount Simonds: E had taken reasonable steps - can't be held liable otherwise anyone employing another and providing with tools do so at his peril.
? Reversed by Employer's Liability (Defective Equipment) Act 1969

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