Employers-Liability - Lecture notes 14 PDF

Preview

Summary

Employers’ Liability  Employers’ liability insurance has been compulsory since 1969, but still only 1/7 workers injured make a claim (TUC 2014) There are 3 main bases for liability: 1. VICARIOUS LIABILITY (see later notes)      First to develop Rules made by judges in the common law (not made ...

Description

Employers’ Liability 

Employers’ liability insurance has been compulsory since 1969, but still only 1/7 workers injured make a claim (TUC 2014)

There are 3 main bases for liability: 1. VICARIOUS LIABILITY (see later notes)     

First to develop Rules made by judges in the common law (not made by parliament in statute) Breach (fault) by employee for which employer is responsible (no liability for non-employees (independent contractors)) Secondary liability (liability for the tort of another) Claimant can be anyone injured even if it’s not an employee (eg visitor, passerby, independent contractor)

2. BREACH OF COMMON LAW DUTY TO EMPLOYEES  

Developed in 19th cent. by the judiciary Breach of duty owed directly by an employer to an employee and placed on the employer by judges o Primary not secondary liability o Therefore, no need to rely upon vicarious liability



Claimant must be an employee (contrast with vicarious liability)

3. BREACH OF STATUTORY DUTY  

Developed in 20th cent. but was abolished in 2013 Breach of a primary duty placed on the employer by parliament (not judges) o Eg Factories Act, Health and Safety at Work Act o Primary duty – could avoid need for vicarious liability



The legislation imposes criminal penalties, but usually makes no direct reference to civil liabilities o Judges interpreted legislation as giving rise to tort action

TWO DIFFERENCES: 

‘Non-Delegable’ Duties: o Both 1) common law duties and 2) statutory duties CANNOT be avoided by an employer engaging an independent contractor to carry out the duty o By contrast, vicarious liability CAN be avoided in this way Is fault relevant? 1. Vicarious liability – employee fault is usual basis of action

2. Common law duties – essentially fault based 3. Statutory duties – sometimes imposed strict liability HISTORY: 





Earliest development: o Vicarious liability developed first (medieval times) o Next – the common law duties (from 1850s in Scotland) o Then – the statutory duties (from end of 19th cent) “Unholy trinity” of defences prevented by tort claims: o Con negligence – was an absolute bar until 1945 Act o Consent – was unfairly found (see defences lectures) o Common employment Vicarious liability was limited by defence of common employment o No claim if injured person with same employer as you

DEFENCE OF COMMON EMPLOYMENT: 

Priestley v Fowler (1835) o Defence first established here Also first reported case where an employee sued his employer P was injured when wheels of butcher’s van gave way after being overloaded by fellow employee o P claimed same right to sue as available to (eg a passenger in the van) o Held: no liability because of the defence. o Why was it created? Judges feared imposing liability to an “alarming extent” – eg for negligence or drunkenness of coachman if the footman was injured; or liability for negligence of cook. o Was Lord Abinger thinking of his own household – he owned a castle. o Worries of collusion between employees? Compensation culture of 19thc. Defence was extended into industry – for example, it prevented claims from: o Train drivers where there was a head-on collision – although their passengers could sue o Miners for the negligence of their engine man which caused the mine lift to fall in 1858 The common employment defence was avoided by development of common law and statutory duties: o Duties were directly placed on the employer o Duties required no action against a fellow employee Defence also declined when judges refused to apply the defence where a ‘public risk’ was being run, for example: o Not applied where a bus driver ran into another bus – ‘public risk’ on the road and claim allowed o o







 

o Contrast: train drivers who collided – ‘private risk’ on the railway and no claim Changes led to vicarious liability being used more often, and it is now the main basis of liability Defence declined in use but was not finally abolished until the Law Reform (Personal Injuries) Act 1948

THE FOUR COMMON LAW DUTIES: Duties are all fault based 1. To provide a safe place of work  



Deals with things such as access, obstructions, ventilation, cleanliness, toilet facilities, etc. In practice, the common law duty has been overtaken by more detailed statutory duties which help establish the standard of care more easily – eg the Workplace (Health, Safety and Welfare) Regs 1992 Standard = reasonably prudent employer = fault o Depends on circumstances & nature of the place of work o Does not mean workplace has to be completely safe

2. To provide adequate plant and equipment  





Duty to provide and maintain eg tools and safety equipment No old common law liability for latent (hidden) defects which involved a fault in the manufacturing o But Employers Liability (Defective Equipment) Act 1969 makes an employer liable for the fault of a third party (manufacturer) However, an employee will still have difficulty in proving the cause: o Must prove a defect in the equipment caused the accident o Must prove that this defect was caused by a fault in its manufacture If found liable, the employer can seek a contribution or indemnity from the manufacturer who was at fault

3. To provide competent staf 



This duty has been overtaken by vicarious liability o Vicarious liability has risen in importance following the decline of the defence of common employment But it is still of limited use because the duty to provide competent staf can be wider than vicarious liability. An employer can be liable: o Even for an independent contractor o Even for an act which falls outside the course of employment (Hudson v Ridge)

Hudson V Ridge:

o o o

Employee had engaged in practical jokes for years – was reprimanded by the employer several times to no efect Employee tripped plaintif and injured him Argument was that the employer was not vicariously liable because the ‘joke’ was outside the course of employment Held: Liability found o o

This was not a vicarious liability case – employer had a primary duty to appoint competent staf Fault was established – employer had failed to do enough to put an end to the practical jokes o Contrast – if the employer could not reasonably have known of the jokes

4. To provide a safe system of work   

Most important of the common law duties Often used where it is difficult to pinpoint the fault of an individual, although there is an overall failure in management Include duties: o To set out and organise the work properly o To provide instructions and warnings o

To ensure that they are observed

Pape v Cumbria: o

Giving gloves to a cleaner to avoid dermatitis was not enough – warning of the danger was also necessary

Nolan v Dental Manufacturing: o

Where it is especially dangerous, the employer may be required not only to warn but also to supply and supervise the wearing of protective gear

General Cleaning Contractors v Christmas: o o o

Employer should take into account the potential carelessness of their employees There is an obvious danger that if a window cleaner stood on the sill to clean the outside of a window they may sufer injury if the window closed However, by leaving it to the initiative of the individual worker, the employer has failed to provide a safe system of work

Cummings v Sir William Arrol:

o o o

D failed to supply safety harness but was held not liable when P fell P would not have worn the harness even had it been supplied D was therefore not the cause in fact of the injury o However, see Nolan – sometimes the employer must supervise the wearing of protective gear

BREACH OF STATUTORY DUTY:  



 







Health and Safety at Work Act 1974 imposes statutory duties on employers ‘Six-pack- of detailed regulations made under the Act include: o Management of Health and Safety at Work Regulations 1999 o Manual Handling Operations Regulations 1992 o Personal Protective Equipment at Work Regulations 1992 Main aim of this legislation is to improve health and safety in the workplace o It is enforced by the Health and Safety Executive o Breach = criminal ofence leading to fines or imprisonment Until 2013, breach could also lead to a tort claim for compensation Advantages over Vicarious Liability: o Duty was non-delegable –  Liability for independent contractors  Liability for acts outside employment o Defences were harder to establish  Eg, consent of the employee was not allowed o Burden of proof was reversed  The employer had to show on balance that he had acted reasonably o Stricter liability existed for breach of certain duties:  John Summers v Frost – duty to fence dangerous machinery. No excuse that such fencing would make the machine unusable or uneconomic.  Strict liability ensures that work equipment is maintained properly The government is concerned about the burden of health and safety legislation on employers o Too much ‘red tape’ o Fear of litigation is leading employers to do more than what was actually required of them by law Commissioned by Professor Lofstedt – ‘Reclaiming Health and Safety for All’ (2011) o Expressed concern about the fairness of imposing strict liability on employers o Recommended a review of strict liability However, the Coalition Government went much further than simply removing strict liability in the employment context by passing: o The Enterprise and Regulatory Reform Act 2013 s 69:

   



Breach of statutory duty no longer gives rise to a civil claim for compensation at all – though employers will remain open to criminal prosecution Employees are now left with proving common law negligence No more 1) strict liability or 2) reversal of burden of proof What is the role of health & safety law in tort now  It still provides evidence of negligence by giving details of the standard of care that may be required to establish fault  Therefore, reform may not make much diference in practice

Arguments for and against making breach of statutory duty actionable in tort so as to create a regime of strict liability in part: FOR - Compensation claims will only be made where negligence or fault on the part of the employer can be proven. This will help the employer’s confidence, allowing them to focus on a sensible and practical approach to health and safety and keeping costs down by avoiding over compliance. Employees will continue to have the same level of protection as the standards set out in criminal law and they will still be able to claim compensation where an employer has been negligent. Employers – there is no longer strict liability. Strict liability used to mean that an employer was liable to pay damages even if they took steps which were reasonably practicable. Now the employer can defend themselves. And they only have to defend themselves against negligence. - With strict liability, negligence didn’t have to be proven, which was more cost and time efective. - Employers no longer have to pay unjustifiable claims by their employees. Causation needs to be established – employer is less likely to be sued as

AGAINST - Health and safety at work regulations impose a strict duty on employers, giving them no opportunity to defend themselves on the basis of having done all that was reasonable to protect their employees. This makes businesses over comply with regulations, resulting in additional and unnecessary costs - The burden of proof is on the claimant to prove that their employer had breached their statutory duty – it is now fault and not strict liability based. The burden of proof is on the injured employee to prove that their injury resulted from their employer’s negligence. It is unfair to place the burden on the employees as they are injured and in some incidents they may be unable to remember details of the incident. What about people who get killed? It would put their families at a disadvantage in gathering evidence against the employer – how can this be justified? No longer strict liability – does this mean that employers will escape liability? Shouldn’t we all have basic statutory rights – that are strict liability? – does this go against justice? And our rights are employees. Negligence now needs to be proven –

causation is difficult to prove. It makes exceptions for pregnant workers. Employers who have done nothing wrong should have the opportunity to defend themselves on the basis of having taken all reasonable precautions. Before – where companies had done nothing wrong, they could still be caught and made liable under the absolute liabilities of health&safety regs. Now, companies are only liable if they are fault.

which means more evidence will need to be gathered, and will have greater costs. - The justification is harder – so does it make it impossible for injured employees to claim compensation? – does this seem unjust?- punishing the innocent and not the guilty? Claims have declined in the past 3 years. Many die or are severely injured – why should they not receive compensation from the employer? The new law doesn’t benefit the injured worker – eg faulty equipment – it would not need to be proved that the employer knew about the faultiness and did nothing – how can you even prove this? The clause will encourage employers to abnegate their responsibility and get away with it. The clause is unfair and unjust – will cost the taxpayer more in support for injured workers unable to receive compensation. Encourage irresponsible employers.



Statute will continue to be important because it is the key regulation which provides the basis for many claims



Failure to comply may be evidence of negligence – especially with the influence of hindsight that accident did in fact occur



However, liability will be avoided if a claimant’s injury would have been the same even if a risk assessment had been carried out, because causation will not be satisfied

CRITICISM OF THE REFORM OF BREACH OF STATUTORY DUTY: 

There was no consultation and little discussion of the policy behind breach of statutory duty or strict liability



There is ‘nothing like strict liability... to induce employers to take proactive steps to ensure that the risks and dangers are reduced to a minimum’ (Lord Browne)



Reform will make it harder for an injured employee to claim – but will it have much efect?



Association of Personal Injury Lawyers: ‘government red tape obsession to put safety law back by 100 years’; a charter for ‘rogue’ bosses



Some argue that employers should pay for injuries sustained by employees because they: o Derive economic benefit from their work (morality) o Are in a position to protect employees (deterrence) o Have insurance and are better placed to distribute the cost (compensation)



Atiyah may argue: o Why should employees be treated better than other accident victims o Pockets of strict liability impede the development of a uniform compensation scheme giving benefits based upon the degree of disability instead of how injury was caused...