Case Law Examples

1. Case Law Examples NEBOSH Diploma Study Guide Complied by Berni Carey Oct 2009 Disclaimer – This is my personal list, you may wish to come up with others. I do not claim this to be the only case law examples needed whilst studying the diploma.

2. “Absolute Duty” • Summers (John) & Sons v Frost (1955) • Frost injured his thumb on a grinding wheel • Court held that Factories Act required ‘all dangerous part to be fenced’ – therefore an absolute duty to guard all parts, even if doing so prevented the machine being used.

3. “Practicable” • Adsett v K and L Steelfounders and Engineers (1953) • Practicability is that of current knowledge and invention – once something is found to be practicable it is feasible and must be done irrespective of cost or inconvenience.

4. “Reasonably Practicable” • Edwards v National Coal Board (1949) • Edwards was killed in a coal mine rock fall. • The case established that ‘reasonably practicable’ allowed a risk assessment of the benefit v the costs (time, trouble or money).

5. ‘Practicable’ or ‘Reasonably So’ • Marshall v Gotham & Co. • Marshall was killed when the mine roof fell in. It would have been ‘practicable’ to shore up the entire roof system, but not ‘reasonably so’, given that it was not known there was a fault there. To have shorn up the entire roof of the mine ‘just in case’ would not have been reasonable in the circumstances.

6. Helpers' liability in tort • Baker v. T E Hopkins & Son Ltd (1959) • A doctor died whilst attempting to give aid to 2 workers (who also died). • The defendants were liable in respect of the death of the employees and also of the doctor: it was a natural and probable consequence of the defendants' negligence towards the employees that someone would attempt to rescue them; the defences of novus actus interveniens (‘new act intervening’) and volenti non fit injuria (‘to a willing person, no injury is done’) could not be successfully relied upon against the doctor's dependants .

7. Duty to trespassers • British Railways Board v Herrington (1971) • Child was injured on the lines after getting through a broken fence. • The House of Lords held that the occupier of the railway premises owed a duty of common humanity to the child. • Until this case no duty of care was owed to trespassers. • Note - Overruled Addie & Sons v Dumbreck [1929] an ‘occupier … only liable to a trespasser… injured… intentionally or recklessly’.

8. Self employed regarded as ‘employees’ • Ferguson v John Dawson and Partners Ltd (1976) • Ferguson fell off a roof while removing some scaffolding boards. • both parties labelled Ferguson a "self-employed labour only subcontractor“. • Court held the relationship between them was that of employer and employee.

9. Employers duty to maintain equipment • Barkway v Sth Wales Transport Co Ltd (1950) • Man killed in a coach crash due to burst tyre. • Company could show a system for inspecting and testing tyres. • However, they did not require drivers to report incidents where tyres could be damaged thus held liable for negligence.

10. Employers duty to maintain work equipment • Bradford v Robinson Rentals Ltd (1967) • Driver suffered frostbite, driving 400 miles during a severe cold spell in an unheated van with cracked windows. • Employers held liable for failing to provide suitable plant.

11. Liability does not apply retrospectively… • Cambridge Water Co v eastern Counties Leather plc (1994) • Tannery which had permitted perchloroethane to percolate into the aquifer. • House of Lords unanimously found that Eastern Counties Leather plc was not liable for the water contamination. • Lords accepted that Eastern Counties Leather would not have foreseen that the solvent would leak from the tannery floors down into the water source.

12. Claim of tort • Corn v Weirs Glass (Hanley) Ltd (1960) • A successful claim of tort of breach of duty requires the loss to be consequential to the breach. • A glazier fell from a stairs with no handrail, while holding a sheet of glass with both hands. • The fall was not consequential to the lack of hand rail since he could not have held it if it were there.

13. Tort – escape of stored materials • Rylands v Fletcher (1868) • Landmark case. • Rylands built a reservoir. • Disused mine workings had been found during construction but not sealed off. • Led to Fletcher’s mines being flooded. • Ruling “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril...”

14. Tort - duty of care to vulnerable employees • Paris v Stepney Borough Council (1951) • Paris was blind in one eye but he concealed this until examined by a company doctor. • Was given 2 weeks notice (1950 remember) – 2 days before leaving was struck in good eye by piece on metal, blinding him. • On Appeal - Council owed a special duty of care to Paris and had been negligent in failing to supply him with goggles.

15. Employer liability for latent defects in tools or equipment • Davie v New Merton Board Mills Ltd (1958) • The claimant lost his claim against his employer following an injury from a tool with a hidden defect. It was held that the employer was not negligent. • Led to the Employers' Liability (Defective Equipment) Act 1969. Providing that if an employee is injured in the course of his employment as a consequence of a defect in equipment, provided by his employer for use in connection with his business, then that defect will be attributable to the negligence of the employer. • However, any damages paid by the employer can then be recovered from the manufacturer or other responsible party.

16. Duty to provide safe system of work • General Cleaning Contractors v Christmas (1952) • Window cleaner injured when he fell after a sash window he was holding, suddenly moved. • Company not negligent of failing to provide equipment, e.g. ladders, safety straps etc. • Company were negligent of providing a safe system of work, e.g. instructing workers to test windows for safety.

17. Systems of work • Speed v Swift (Thomas) & Co Ltd (1943) • Lord Green defined ‘Systems of Work’… • It may be the physical layout of the job – the setting of the stage, so to speak – the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices, and the issue of special instructions.

18. Non-delegatable duty of care. • Wilsons & Clyde Coal v English (1937) • English was crushed at work and claimed damages. The employer claimed their agent was responsible for safety at that workplace (a mine). • Ruling: The employer's duty to his employees is personal and non-delegable. • He can delegate the performance of the duty to others, whether employees or independent contractors, but not responsibility for its negligent performance.

19. Duty of care – Stress (1)… • Walker v Northumberland County Council (1995) • Plaintiff was a Social Worker Team Leader, who reported stress from workload, eventually having a breakdown. • On return to work the promised assistance was inadequate and 2nd breakdown resulted, forcing retirement. • The council was found to have breached its duty in respect of the second nervous breakdown, though not the first. • Note - The first case in legal history where an employee was awarded damages for 'psychiatric injury' suffered a result of work related stress.

20. Duty of care – Stress (2)… • Sutherland v Hatton and others (2002) • Court of Appeal heard 4 cases relating to ‘Stress’ awards at lower court. • Overturned 3 of 4 awards, because the individuals had not taken any action to inform their employers of their problems. • 4th case (Jones v Sandwell MBC) not revoked as she had informed her employer but received no help.

21. Higher Standards expected from experienced employee… • Qualcast (Wolverhampton) Ltd v Hayes (1959) • Experienced worker splashed with molten metal. • Spats were available, but not worn and not enforced by employer. • Employee failed to gain compensation as they had chosen not to make use of it at their own risk.

22. Contributory negligence • Uddin v. Associated Portland Cement Mfrs. Ltd., (1965) • Uddin was employed in a cement factory. • He went where he was not authorised to be in order and climbed up to a position where there was unfenced machinery. As a result he became entangled with a revolving shaft and lost an arm. • It made no difference that Uddin was in a part of the factory where he was not supposed to be or that he was doing something that had nothing to do with his work. • Responsibility was apportioned on the basis of 20% to the defendants and 80% to the plaintiff.

23. Volenti non fit injuria • ICI v Shatwell (1964) • 2 employees injured when they ignored explosive regulations and company policy. • Employers could successfully raise ‘Volenti’ as defence. • The defence of ‘volenti non-fit injuria’ will apply when there is true and free consent to the risk.

24. Master/servant relationship • Mersey Docks & Harbour Board v. Coggins & Griffiths (Liverpool) Ltd. (1947) • Coggins and Griffiths hired a crane and driver from the Mersey Docks and Harbour Board. Newall, the driver, drove the crane negligently and injured Mr Mcfarlane. • Contract between the Board and the hirers stated that the driver was to become their employee for the duration of the hire. • Judgement - Control over Mr Newall's work had not passed to the hirers.

25. A safe place of work… • Paine v Colne Valley Electricity Supply Co (1938) • Found the employer liable after an employee was electrocuted because a kiosk had not been properly insulated.

26. Vicarious Liability (1) • Smith v Crossley Bros Ltd (1951) • An employer may be held criminally liable or liable in common law for the negligent or unlawful acts of a member of staff, even though the member of staff wilfully disobeyed the express instructions of his/her employer. • Apprentices engaged in horseplay injected compressed air into a 3rd person. • The employers were held not liable. • Staff acted negligently “on a frolic of his/her own” independently of the job.

27. Vicarious Liability (2) • Lister v Romford Ice & Cold Storage Co. Ltd. (1957) • Father and son were employed by the same company. • Son negligently handled a vehicle, causing injury to his father. • Father sued the company for the negligence of the employee, his son. • Company (their insurance company) succeeded in obtaining similar damages from the son.

28. Vicarious Liability (3) • Rose v Plenty (1976) • A milkman (against company orders) took a 13-year-old boy to help him on his round, and the boy was injured through the milkman's negligent driving. • The boy sued both the milkman and the dairy. • The trial judge found that the dairy was not liable. • The Court of Appeal found the dairy vicariously liable for the boy's injuries. The boy was actually helping to deliver the milk, and so the driver's action was an unauthorised way of performing his duties.

29. Practicability of precautions • Latimer v. AEC Ltd (1953) • A freak flood left the floor oily. • Employer used all available materials to absorb the hazard. • Plaintiff came on shift unaware of the problem, slipped and crushed ankle. • On Appeal - The employer took every step that reasonably could have been taken in the circumstances and in so doing had negated any possible allegation of negligence .

30. Neighbour principle • Donoghue v Stevenson (1932) • Established the modern tort of negligence. • Donoghue claimed illness after consuming a drink of ginger beer which contained a ‘snail’. • Eventually settled out of court. • Lord Atkin’s remarks… Who, then, in law, is my neighbour? The answer seems to be - 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 that are called in question.

31. Employment Right Act 1996 • Employee has the right not to be subject to detriment (s44) or dismissal (s100) on the grounds that as a designated H&S employee they were doing or proposed to do their job or were performing their role as a Safety C’ttee member.

32. Employment Right Act 1996 (s100) Protection for Employees • Masiak v City Restaurants Ltd • Chef dismissed for refusing to cook chicken which he considered unfit for consumption. • On appeal, case upheld as s100 of the ERA could refer to ‘other persons’ other than other employees, in this case the paying customers.

33. Employment Right Act 1996 (s100) Protection for Employees • Barton v Wandsworth Council (1995) • Ambulance driver disciplined for complaining about lack of trained escorts when transporting patients with disabilities. • Tribunal ruled in his favour – the actions taken against him were a detriment when he voiced genuine concerns for his own safety and that of the patients.

34. Employment Right Act 1996 (s100) Protection for Employees • Costain Building & Civil Eng v Smith • Smith was an ‘Independent Consultant’ employed through an Agency. • Dismissed after writing critical Safety Reports. • On appeal, dismissal upheld as s100 was for employees protection but Smith was employed by the Agency, not Costain.

35. HSWA s2 and s37 • J Armour v J Skeen (Procurator Fiscal Glasgow)(1977) • Armour was Director of Roads for Local Authority – Workman fell to death from a bridge. • Corporate Failure to have ‘safe system of work’ HSWA s2 • Individual Failure – not a ‘Director’ within meaning of s37, but was within scope of ‘manager…or similar officer’. It was his individual failure to provide the SSW. HSWA s37

36. HSAW s2(1) general duties • R v Gateway Foodmarkets • Employee fell through a trapdoor. • Company liable for actions of staff, in leaving the hatch open, even though they had taken all reasonable precautions at a senior management level.

37. HSWA s2(1) general duties • Bolton Metropolitan Borough Council v Malrod Insulations Ltd • EHO discovered decontamination unit available for use by Asbestos removal team had electrical faults. • Successful prosecution for making the equipment available even though not yet in use.

38. HSAW s2(1) general duties • Langridge v Howletts Zoo & Port Lympne Estates Ltd • Prohibition Notice issued by local authority preventing keepers entering Tiger enclosure after death of a keeper. • Zoo argued that keepers must enter the enclosure to bond with the animals. • On appeal, keepers allowed to enter the enclosure with modified procedures. • The Act is not concerned with the working being done, but the manner of performing it.

39. HSWA s3 • R v British Steel plc (1995) • A sub-contractor working under supervision of a British Steel supervisor was killed. • Under ‘Vicarious Liability’, the supervisor had failed in his duty, therefore British Steel had failed its employers duty under s3.

40. HSAW s3 • R v Mara • Director of a small cleaning company contracted to clean a supermarket. • Faulty cleaning machine left on supermarket premises. • Supermarket employee used the machine and was electrocuted. • Supermarket employees were ‘persons who may be affected by the way the cleaning company carried on its undertaking’.

41. HSAW s3 • R v Nelson Group Services (Maintenance) Ltd • A properly trained and competent gas fitter left a fitting in a dangerous condition. • It was held that an isolated act of negligence by an otherwise completely competent employee did not render the employer liable. • Note – this defence is effectively closed by MHSWR 1999 Reg 21 – ‘it will not be a defence for an employer to argue that the contravention was due to the act or default of an employee… or an person appointed as a H&S Assistant under Reg7.’

42. HSWA s3 • R v Swan Hunter Shipbuilders Ltd (1982) • 8 workers killed during construction of HMS Glasgow due to explosion in an oxygen enriched environment. • Swan Hunter had known of the potential risk and informed their own employees. • Swan Hunter failed to inform other contractors and sub-contractors. • Swan Hunter had a duty to ensure the health and safety of its own employees. If the ignorance of another company’s employees places its own employees at risk then it is the company’s duty to inform the employees of another of any special risks within its knowledge.

43. HSAW s3 • R v Associated Octel Co Ltd (1996) • An employee of a contractor badly burned while conducting repairs to a chemical tank. • The Contractor was prosecuted under s2 for the injury to their employee. • Octel were prosecuted under s3 - the maintenance of the tank was part of their undertaking – that it was being carried out by a contractor was irrelevant, as it was on their site so it was still under their control.

44. HSAW s3 • R v Board of Trustees of Science Museum (1993) • Alleged that the public put at risk of exposure to Legionella Pneumophilia (LP) due to failure to instigate regular system of cleansing Air Con system. • It was not necessary to show that the public had inhaled LP, only that there was a risk of doing so. • Court of Appeal upheld conviction.

45. HSWA s4 • Westminster City Council v Select Managements Ltd • Improvement Notice relating to lifts and electrical equipment in block of flats. • Company appealed on grounds that they were ‘domestic premises’ iaw s4 of HSWA. • Court of Appeal upheld that the ‘Common Areas’ were not domestic but available for use by others as a place of work or where they may use plant, e.g. lifts.

46. HSWA s4 • Moualem v Carlisle City Council (1994) • Defendant operated a Children’s Play Centre and convicted of failure to comply with Improvement Notices. • Children were using ‘plant’ in a non-domestic premises.

47. Corporate Manslaughter • Corporate Manslaughter and Corporate Homicide Act 2007 • The offence is concerned with corporate liability and does not apply to directors or other individuals who have a senior role in the company or organisation. • The first ever successful UK Corporate Manslaughter prosecution was of the company involved in the Lyme Bay kayaking deaths (1993). • Previously, cases such as the Tebay rail deaths (2004), the Herald of Free Enterprise RORO Ferry disaster (1987), Connington South rail crash (1967) had resulted in prosecution of individuals.