The purpose of this assignment is to explain the criteria for raising a civil action in negligence at common law in the case of someone who has suffered a workplace injury and the concept of vicarious liability.
To understand the law surrounding negligence we must first look at the foundation of modern-day laws surrounding negligence at common law, these are derived from the case of Donoghue V Stevenson. ⁽ᴮ¹⁾ This case established the general principles of the duty of care, where Lord Aitken defined the “Neighbour” principle, and stated that “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”.⁽ᴮ¹⁾ This means that it must be taken into consideration wither an employer has fulfilled their legal obligations and taken all reasonable measures to prevent employees or third parties coming to harm. A duty of care being owed is the first point that must be proven when raising a civil action in negligence at common law.
An employment contract is voluntary and has implied terms (obligations) that firstly impose duties on employers to take reasonable care of the safety of employees & secondly not to undermine their trust and confidence and, “is the basis of the legal duty of care to an employee in the tort of negligence.” ⁽ᴮ²⁾An employer cannot delegate this duty to another. ⁽ᴮ³⁾ This means that an employer cannot blame an employee for his duties as an employer, even if the employee has been delegated a task. The first part of this obligation has three further employer duties attached to it, these are the provision of;
- Safe premises, plant, and equipment.
- Competent fellow workers.
- A safe system of work.
Negligence is part of the law of delict and is important as it arises from an involuntary obligation, it is also part of private law and is pursued in the civil courts. The criteria needed to pursue this at common law is;
- Reasonable foreseeability
- Relationship of proximity
- It must be fair, just and reasonable
Reasonable foreseeability is what a reasonable person would have foreseen happening, not what they saw. As in the case of Kennedy V Chivas Brothers Ltd  ⁽ᴮ⁴⁾ the claimant injured her hand by pushing a trolley that collided with machinery. The claim failed at the first instance as the judge found the task didn’t involve a real and foreseeable risk as the task was “simple”, but this was overturned on appeal by applying regulation 4 of (suitability of Work Equipment) ⁽ᴮ⁵⁾ which states “every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided” ⁽ᴮ⁴⁾ , it also applied regulation 5 (maintenance).⁽ᴮ⁵⁾
A relationship of proximity must exist, this means there must be a connection between the employer and employee, and the employee was given instruction by the defendant or his subordinate acting within the scope of their employment which caused the harm. “It is now clear that the crucial element is “assumption of responsibility” ⁽ᶠ¹⁾ by the defender, for that assumption not only creates the relationship of proximity but also justifies characterising carelessness within the ambit of that responsibility as Culpa (fault/negligent)”. ⁽ᴮ⁶⁾
Is it fair just and reasonable to impose a duty in this case? The courts may consider did employer have a safe system of work and did they do appropriate risk assessments for each individual task, the costs and difficulties associated with those, did the complainant have individual health screening, did the employer considered themselves to be an expert in Health and Safety, Was the duty of care breached, what are the industry standards? The employee must adhere to their scope of duty, this is the responsibilities and activates they are reasonably expected to carry out as defined in their contract. The standard of care owed by the employer ensures that they must “take such steps as are reasonable to ensure that those to whom the duty is owed are not exposed to a risk of injury that is reasonably foreseeable in all circumstances”. ⁽ᴮ⁷⁾ If an employee has acted outside his scope then the employer may not be held liable, as to be held liable would not be fair, just and reasonable. If the complaint is found to be fair, just and reasonable and the duty of care has been breached, it would then need to be proven that the injury had been caused by the accident. For example, was it a breach of the degree of care, was the correct P.P.E made available and were any prior conditions known about that would affect the employee performing this job, as in Paris v Stepney Bourgh Council. ⁽ᴮ⁸⁾
What is the burden of proof? This is proof of negligence and is placed on the employee, but this switches to the employer when the circumstances of the accident are blatantly the fault of the employer by not taking appropriate measures to prevent an accident that was always going to happen. This is known as res ipsa loquitur and is Latin for “the thing speaks for itself”. ⁽ᴮ⁹⁾
HASWA⁽ᴳ¹⁾ sets out the duties on an employer “to ensure the health, safety and welfare of their employees and others affected by their activities.” ⁽ᴮ¹⁰⁾ However section 69 of ERRA⁽ᴳ²⁾ amends the provisions of section 47 (2) HASWA. Section 69 of ERRA concerns civil liability emerging from breach of statutory duty, ERRA stopped claims being taken to court on breach of statutory duty and claims can now only be taken to court if they succeed to show “on the balance of probabilities” that an employer has been negligent. ⁽ᴮ¹¹⁾ This is known as “causation” and would show that the claimant has more than a 50% chance of proving the injury or loss claimed. A breach of statutory duties can also overlap with common law when they are addressing different issues that arise from the same event.
Vicarious Liability is where an employer is liable for an act of negligence committed to an employee or to a third party by his employee whilst acting within the scope of their employment, it therefore makes someone else liable in addition to the wrong doer.
One recent case that demonstrates vicarious liability being held in favour of the complainant is “Mohamud V WM Morrison Supermarkets”. ⁽ᴮ¹²⁾Mr Mohamud was a customer in the petrol stationwhen a Morrisons employee (Mr Khan) physically assaulted and racially abused Mr Mohamud. The link of “sufficiently close connection” was not proven at the initial trial and the case went to the appeal courts who found that there was a “sufficiently close connection” between Mr Khans job of operating the filling station and his actions against Mr Mohamud to whom he had taken a dislike, and WM Morrison Supermarket was found vicariously liable.
A case that failed to prove vicarious liability was “Clive Bellman V Northampton recruitment Limited”. ⁽ᴮ¹³⁾ A company employee was assaulted by the Managing Director after the annual Christmas party. There was a subsequent after drinks party at an hotel where the employee suffered serious brain damage, caused by the assault. The employee claimed that that company was vicariously liable for the Managing Directors assault. The judge held the link of “sufficiently close connection”, was insufficient because a line could be drawn under the evening’s events after the Christmas party finished.
The main key health and safety regulations are: ⁽ᴮ¹⁴⁾
- The Management of Health and Safety at Work Regulations 1999.
- The Provision and Use of Work Equipment Regulations 1998
- The Manual Handling Operations Regulations 1992.
- The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995.
- The Workplace (Health, Safety and Welfare) Regulations 1992.
- The working Time Regulations 1998 (as amended)
Our class discussions were based on the Scottish and UK legal systems, judicial systems, statute law, common law and health and safety case law, criminal liability, civil liability, EU legislation and our assignment.
I conclude that without the current laws of the land which are constantly evolving in Scotland and the UK, anarchy would rule.
GLOSSARY OF TERMS
- G1 Health and Safety at Work Act 1974
- G2 Enterprise and Regulatory Reform Act 2013
- B1 McAlister (or Donoghue) v Stevenson  AC, 101 LJPC 119
- B2 Channing, J., “SAFETY AT WORK”, Eighth Edition, 2014, London & New York, Routledge, P-37, S: 22.214.171.124
- B3 Wilson & Clyde Coal Co v. English (1938) AC 57, HL.
- B4 Kennedy v Chivas Brothers Ltd – 2013 Scot (D) 11/6
- B5 Provision and Use of Work Equipment Regulations 1998
- B6 Hedley Byrne & Co Ltd v Partners Ltd  AC 465 (HL)
- B7 Channing, J., “SAFETY AT WORK”, Eighth Edition, 2014, London & New York, Routledge, P-159 – 160, S: 126.96.36.199
- B8 Paris v Stepney Bourgh Council  AC 367 (HL)
- B9 Channing, J., “SAFETY AT WORK”, Eighth Edition, 2014, London & New York, Routledge, P 161, S: 188.8.131.52.3
- B10 Health and Safety at Work Act 1974
- B11 http://www.legislation.gov.uk/ukpga/2013/24/contents/enacted
- B12 Mohamud v WM Morrison Supermarkets plc  EWCA Civ 116
- B13 Bellman (a protected party by his litigation friend) v Northampton Recruitment Ltd  EWCA Civ 2214
- B14 Channing, J., “SAFETY AT WORK”, Eighth Edition, 2014, London & New York, Routledge, P – 57
- F1 227 Exceptions to the general rule (1): Hedley Byrne liability.
A director or employee of a limited company can only be liable for negligent mis-statement under the principle in Hedley Byrne if it is shown objectively that the person to whom the mis-statement was made could reasonably have relied on such an assumption of personal responsibility by the director or employee as to create a special relationship between them.
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