Common law torts and duties

We continue our courses in health, safety envirement to help you to prepare your NEBOSH.

Common law torts and duties

Negligence

The only tort (civil wrong) of real significance in health and safety is negligence. Negligence is the lack of reasonable care or conduct which results in the injury (or financial loss) of or to another. Whether the act or omission was reasonable is usually decided as a result of a court action. There have been two important judgements that have defined the legal meaning of negligence. In 1856, negligence was judged to involve actions or omissionsand the need for reasonable and prudent behaviour.

In 1932, Lord Atkin said, You must take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbour. Who then, in law is my neighbour? The answer

seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

It can be seen, therefore, that for negligence to be established, it must be reasonable and foreseeable that the injury could result from the act or omission. In practice, the Court may need to decide whether the injured party is the neighbour of the perpetrator. A collapsing

scaffold could easily injure a member of the public who could be considered a neighbour to the scaffold erector.

An employee who is suing his employer for negligence, needs to establish the following three criteria:

-           a duty was owed to him by his employer

-           there was a breach of that duty

-           the breach resulted in the injury, disease, damage and/or loss.

These tests should also be used by anyone affected by the employer’s undertaking (such as contractors and members of the public) who is suing the employer for negligence.

If the employer is unable to defend against the three criteria, two further partial defences are available. It could be argued that the employee was fully aware of the risks that were taken by not complying with safety instructions, (known as volenti non fit injuria or ‘the risk was willingly accepted’). This defence is unlikely to be totally successful because courts have ruled that employees have not accepted the risk voluntarily since economic necessity forces them to work.

The second possible defence is that of ‘contributory negligence’ where the employee is deemed to have contributed to the negligent act. This defence, if successful, can significantly reduce the level of compensation (up to 80% in some cases).

Duties of care

Several judgements have established that employers owe a duty of care to each of their employees. This duty cannot be assigned to others, even if a consultant is employed to advise on health and safety matters or if the employees are sub-contracted to work with another

employer. These duties may be sub-divided into four groups. Employers must:

-           provide a safe place of work

-           provide safe plant and equipment

-           provide a safe system of work

-           provide safe and competent fellow employees.

Employer duties under common law are often mirrored in statute law. This, in effect, makes them both common law and statutory duties.

The requirements of a safe workplace, including the maintenance of floors and the provision of walkways and safe stairways, for example, are also contained in the Workplace (Health, Safety and Welfare) Regulations.

The requirement to provide competent fellow employees includes the provision of adequate supervision, instruction and training. As mentioned earlier, employers are responsible for the actions of their employees (vicarious liability) provided that the action in question took place during the normal course of their employment.

Share this

Share on FacebookPlus on Google+