Withers v Perry Chain Co Ltd - 1961

Withers v Perry Chain Co Ltd [1961] 1 WLR 1314

Employer’s duty of care; employee susceptible to injury accepted work without protest

Facts

Ms Withers was employed by the defendant factory doing bicycle hub assembly work. She contracted dermatitis from having contact with grease. Her employers transferred her to other work assembling driving sleeves, which they considered to be the driest work available  in the factory. Ms Withers had three further episodes of dermatitis which caused her to be absent from work, but on each occasion, she returned to work and accepted the same duties without protest. She sought damages in negligence against the defendant for failing to prevent her from working with irritating substances, when they knew she was susceptible to dermatitis.

Issues

The defendant was under a duty to provide a safe and proper system of work to their employees per Wilson & Clyde Coal Co v English [1938] AC 57. Ms Withers alleged that since her employer knew she had suffered from dermatitis, they were in breach of this duty by permitting her to continue to work with lubricating suds which they knew, or ought to have known, were likely to cause, or aggravate dermatitis. The defendant contended they had not been in breach of duty as there was no duty to prevent an employee from working who voluntarily accepts the work, and is aware of the risks involved.

Held

Ms Withers’ claim was unsuccessful. There is no duty on an employer to dismiss or refuse to employ an adult employee who voluntarily consents to work, merely because there may be a risk to the employee in doing that particular work. If there was a risk posed by the employment, it was for the employee to weigh it against the benefits of the employment and to decide whether to accept the job.