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4.1.3 Personal Liability Lecture - Hands on Example

Question:

It is Fry’s first day at Sauce Co, a factory which specialises in the manufacture of frozen pizzas. The factory has just received a new bulk order, and is currently rushing to fulfil the order. The manager who hired Fry tells him that because of the large order, he does not have time to train Fry, and that he is sure that Fry will be able to get along just fine. He puts him to work on his own in the factory’s baking room, where he is tasked with part-baking pizza bases before topping are added.

The factory has just been fitted with a state of the art lighting system by a local electrical engineer.  Unfortunately, it emerges that the electrical engineer is unlicensed – something Sauce Co failed to check. One of the brackets holding one of the new lights has not been fitted correctly. The vibrations from the machinery below cause the light to become loose and it falls onto one of the factory’s workers – Amy. She suffers a broken arm as a result.

Fry goes to empty the pizza oven, but discovers that the oven won’t turn off. The oven has an emergency shutoff button, but it is unmarked. Fry leaves to go get help. Whilst he is away, the oven bursts into flames. Fry returns with a colleague, Hermes. When they open the door to the bake room air rushes in and the fire bursts from the room in a backdraft. Both Hermes and Fry are badly injured by the flames.

After the event a safety report is written up by the factory’s safety co-ordinator – Leela. It is noted in the report that Leela recommended two months ago that the oven be properly labelled, and that it constituted a hazard in its current form.

Leela has just returned from a leave of absence – she was off work sick due to the considerable level of workplace stress she was experiencing in the unsafe factory. The oven fire is the last straw for Leela, and she has a nervous breakdown. She later confides in her therapist that she had not had a day off of work for nearly six months, and was completely overburdened with work. Despite asking for assistance on multiple occasions, this was not provided.

Fry, Amy, Leela and Hermes all want to bring a case against Sauce Co for their respective ailments and injuries. Advise them on their claims, concentrating on Sauce Co’s common law duties towards their employees. Do not discuss statute.

Answer: There are four different claimants to discuss here, each with a claim on the basis that Sauce Co has failed to meet its common law duty to ensure its employees safety, under Wilsons & Clyde Coal Co Ltd v English [1938] AC 57.

Amy’s claim will be on the basis that Sauce Co have failed to provide her with safe premises in which to work. Under Latimer v AEC Ltd [1953] AC 643 Sauce Co will be expected to act as a reasonably prudent employer would have. Their failure to ensure that they employed a licensed electrical engineer appears to dip below this expected standard. Furthermore, the non-delegable nature of Sauce Co’s obligations to provide safe premises for its employees means that ultimately, responsibility for the factory’s state of repair rests with Amy’s employer. As such, Amy is likely to have a valid claim.

The harm done to Fry can be considered a failure to create a safe system of work, as in Speed v Thomas Swift & Co Ltd [1943] 1 KB 557 – Sauce Co should have had provisions in place to give Fry sufficient training, and should not have placed him in a situation in which a lack of training could have been dangerous (i.e. assigning him to the oven.) Furthermore, Sauce Co should have ensured that safety measures (such as emergency shutoff buttons) were properly marked – indeed, the need to provide proper signage was mentioned in Speed. This can also be considered as the provision of unsafe equipment, as in Knowles v Liverpool County Council [1993] 1 WLR 1428 – emergency shutoff buttons are designed so that they can be used in an urgent situation. An emergency button which is not labelled as such is essentially useless for this purpose, meaning that the oven was in an unsafe condition.

Hermes injuries can be attributed to a failure to provide competent staff as colleagues (or rather, the failure to train staff up to a sufficiently competent level. Sauce Co were aware of Fry’s inexperience, and should have taken steps to train him. This can be likened to Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348, in which the claimant’s employers were aware that a colleague was behaving poorly, but did nothing to alleviate the problem. To a certain extent, Hermes has also been failed by the working system in place in the same way as Fry – a system which does not properly train one’s colleagues in a factory setting is not a safe one.

Finally, there is Leela’s nervous breakdown, which can be considered a failure to provide a safe system of working. Leela has previously been overworked far beyond what might be considered reasonable. She has made this known to her employers, and has previously had time off work for that very reason. As in Walker v Northumberland County Council [1995] 1 All ER 737 once it became clear that Leela was susceptible to stress-related psychiatric injury, Sauce Co should have taken steps to deal with her workload. Indeed, it might even be argued that her unreasonably heavy workload was the cause of her first leave of absence, and that therefore she might have a claim for psychiatric injury for that, as well as her nervous breakdown. Leela’s case is also supported by Paris v Stepney Borough Council [1951] AC 367 – just as the claimant’s employers should have taken proper steps to protect the sight of a one-eyed mechanic, Leela’s employers should have taken steps to protect the wellbeing of an employee they know is both susceptible to stress-related injury and overworked.


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