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Employers Liability (Losses which can be claimed (Psychiatric Harm, Sexual…
Employers Liability
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Is the claimant an employee of the employer?
Needs to be the case for a claim to go through - FIrst step to establish this
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Duty of Care
Wilsons and Clyde Coal v English - must state this at the beginning of every problem question (take into account any steps the employer has taken to minimize injury)
Duty to Provide:
- A Safe Place of Work
- A Safe System of Work
- Competent Fellow Employees
Duty Non-Delegable
- Even if the employer tasks another employee to do something which in turn creates the negligence, they do not delegate the legal responsibility (liability)
- McDermid v Nash Dredging
Breach
Standard is of: The Reasonably Competent Employer
Latimer v AEC - flooded factory, the reasonable employer will take risks - they are not perfect - no breach in this case as held to be the reasonable employer
Must show that they have breached any of the three duties: safe place, safe systems, safe fellow employees - all this amounts to a duty to take reasonable care, many areas will overlap Wilson v Tyneside Window Cleaning
Duty to provide a safe system of work including:
- hardest to define
EXAMPLES:
- Speed v Thomas Swift safe systems include: physical layout, sequence in which the work is carried out, provisions of warnings and instructions - cargo removers from ships
- General Cleaning v Christmas - not provided with window cleaning instructions
McDermide v Nash: Danish Captain spoke no English: system of banging when the ships ropes untied - Danish Captain left - C injured
Failures in relation to Safety Equipment:
Clifford v Charles: contracted dermatitis - cream not readily available - although contributory negligence as should have asked for it
Woods v Durable - same facts although employees supplied with the cream and told hot to use it
Qualcast v Haynes: boots available for hire when working with molten metal - experienced employee chose not to use - safe
Bux v Slough: molten metal - googles should be worn, provided but employees didn't wear - unsafe - employers should have done more - widely known
Failure to Provide Competent Fellow Employees:
- employer has duty to select and employ competent staff
- Action against incompetant employees usually taken under VL
BUT
- Employers have this primary duty and must remember this is a possible claim
Black v Fife Coal LTD If an incompetent person is employed or required to do a job that they are not capable of doing then there will be a breach of the employer’s dutyPractical Jokes
- An employer who knows or who ought to know of an employee’s habit of playing practical jokes could be in breach
Hudson v Ridge Manufacturing Company - Habitual practical joke - should know - employer in breach - should have sorted it
Smith v Crossley Bros. - One-off event, employer not to know - no duty (but VL)
Sexual Harrassment & Bullying:
Harrison v Lawrence Murphy & Co, The Chartered Secretary: Woman harrassed for months by line manager - employers aware but failed to act - liable for £50k
Duty to provide a safe place of work including:
- Equipment
- Materials
- Adequate plant/factory
- Latimer v AEC - slippery floor
- Wilson v Tyneside - Injured when a door handle came loose - no duty to check every individual house - told not to clean if there was danger
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What is the tort:
- It is where an employee sues an employer directly for their own negligence
- Structure same for a general negligence claim
- Negligence of the employer must have taken place when the employee was in employment
Remoteness
Use Wagon Mound I
- Psychiatric Harm:
- Walker v Northumberland CC - mental health issues due to stress of the job - suffered breakdown, highly likely would have another, employer should have put in measures to reduce stress
- Barber v Somerset - Teacher suffered breakdown from stress - reasonably foreseeable he would suffer another
- Harrison v Lawrence Murphy: Sexual harrassment - suffered mentalhealth issues as a result employers knew
- RSI not a recognised loss - Mughal v Reuters however in Pickford v ICI recognised but the claim failed
Defences:
- Usual general negligence cases apply
- Contributory/Volenti
Volenti: ‘there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss’ - difficult to prove in employment ICI Ltd v ShatwellContributory Negligence: Law Reform (Contributory Negligence) Act 1945
- self-induced intoxication as in Barrett v MOD
- Bux v Slough: goggles provided, did not wear them - have to take some responsibility for your own safety
- Sherlock v Chester City Council - responsible for 60% - although not a safe system of work - was an experienced joiner - should have implemented them himself
- Fraser v Winchester Health Authority - Inexperienced camper and teacher, lit fire irresponsibly and injured child - had no guidance from employers