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Employer Personal Liability Notes

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Employer's Personal Liability The old state of the law

"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

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

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:

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.

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

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

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


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.

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.

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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