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Contributory negligence and liability in employment
Although Mario is employed through a GTS scheme, for the purposes of the relevant employment legislation he will be classed as an employee of Lavoro.
The Management Health and Safety at Work Regulations require an employer to assess the risk to the health and safety of anyone that may be affected by the employer’s activities, which will include workers. The definition of worker includes an agency worker, or freelance worker. Therefore an apprentice on a GTS scheme will be covered.
It is only the genuinely self employed or subcontracting business that fall outside the definition. Lavaro has provided a contract of employment – and therefore the parties define the relationship as one of employer/employee. The tests of mutual obligations and necessary control appear to be satisfied. It is irrelevant that Mario’s employment contract is ‘temporary’ or that no tax is paid. Mario would not be found to be self employed.
In Wilsons and Clyde Coal Co v English Lord Wright defined an employers duty to an employee as “the provision of a competent staff of men, adequate material, and a proper system and effective supervision.”
Liability is not strict, but an employer has a duty to exercise reasonable skill and care.
It may be that there has been a breach of the duty to provide a safe system of working. Such a system should, so far as practicable, minimise the danger of a worker’s own foreseeable carelessness.
A risk assessment, as required under the Management Regulations (referred to above), may have revealed that the acid containers should have been stored in, for example, more stable containers, or in a different area, prior to sealing. If this is the case, and Lavaro either did not carry out a risk assessment, or failed to take reasonable steps to reduce the hazard, this would be good evidence of a failure to take reasonable care to provide a safe system of work, and Mario may be able to claim damages for the acid burn itself from Lavaro as a result.
The employer’s duty is not confined to providing a safe system of work. He must also take reasonable care to ensure that the necessary safety precautions are observed and implemented. This is re-emphasised in the Personal Protective Equipment at Work Regulations 1992. It appears that Mario was aware of the requirement to wear gloves, and only removed the gloves to remove the wasp. It is submitted that there will be no breach of this duty.
Mario has ignored the instruction to keep on the protective gloves. It is understandable that, in the heat of the moment, he felt the need to remove the glove. However, such action is not necessarily reasonable – the wasp could easily have been removed by shaking the head or some other method. Mario’s damages may be reduced to reflect contributory negligence under the provisions of The Law Reform Contributory Negligence Act 1945.
A reasonable person in Teresa’s position would have checked the label before applying cream to an acid burn. Teresa has failed to do this, and her actions constitute negligence. Mario will be entitled to claim compensation from Teresa for the worsening of his condition.
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The law imposes liability on a master for the actions of its servant if various conditions are satisfied. Therefore, since Teresa has been acting within the scope of her employment, Lavoro will be vicariously liable for Teresa’s negligence. Liability is strict.
Franco may be liable under the law of battery, or alternatively the rule of Wilkinson v Downton.
Battery is the intentional and direct application of force to another person. The tort of battery is actionable per se. This means that there is no need for it to be proven that Grazia has suffered harm – although of course that will not be a difficulty in this case.
It is questionable whether Grazia would succeed in a claim in battery however, since no direct force has been applied. The case of DPP v K may assist. In that case, which related to a criminal battery charge, the court held that putting acid in a hand dryer with the intent that it would injure the next person to use it amounted to a battery.
The rule of Wilkinson v Downton provides that there will be a cause of action where the wrongdoer has carried out an act calculated to cause physical harm.
The case of Wilkinson also related to a practical joke. The defendant had told the plaintiff that her husband had lost both his legs in an accident. This statement was untrue.
In Wong v Parkside Health NHS Trust the court stated that the test as to whether the wrongdoer has ‘deliberately engaged’ in conduct calculated to cause harm is whether it is “sufficiently likely to result that the defendant cannot be heard to say that he did not ‘mean’ to do it”.
Franco’s motive was to play a practical joke – identical to the motive in Wilkinson. Applying a laxative to food is clearly likely to result in harm – and the Wong test is therefore satisfied.
Franco will therefore be liable for Grazia’s injury under this rule.
Rogers, WVH – Winfield & Jolowicz on Tort, 16th Edition. (2002) Thomson Sweet & Maxwell
Lunney, M and Oliphant, K – Tort Law Text and Materials 2nd edition (2003) Oxford
Individual Rights of Employees: A guide for Employers and Employees – PL 716 (Rev 11) www.dti.gov.uk/er/individual/pre.htm
The Law Reform Contributory Negligence Act 1945
The Management of Health and Safety at Work Regulations 1999 SI 1999 No 3242
Personal Protective Equipment at Work Regulations 1992
DPP v K (1990) 1 WLR 1067
Wilkinson v Downton  2 QB 57
Wilsons and Clyde Coal Co v English  AC 57
Wong v Parkside Health NHS Trust  EWCA Civ 1721
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 1999 SI 1999 No 3242
  AC 57
  2 QB 57
 Page 71 Winfield & Jolowicz on Tort, 16th Edition
 (1990) 1 WLR 1067
  EWCA Civ 1721
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