Employers’ Liability – Cleshar Contract Services

1. Employers’ Liability – Cleshar Contract Services Simon Johnson Tuesday 14 May 2013

2. Common–Law Duties To provide:- a safe place of work a proper system of work plant, machinery or equipment adequate for the task; and competent fellow employees

3. Elements of a Claim Duty of care owed Breach of that duty Breach has caused the injury, loss or damage

4. The European Dimension Regulations derived from the Framework Directive Management of Health and Safety at Work Regs Provision and Use of Work Equipment Regs Workplace (Health, Safety and Welfare) Regs Manual Handling Operations Regs Health and Safety (DSE) Regs COSHH Regs

5. Strict Liability for Employers PUWER 1998 Regulation 5(1): “Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.”

6. Strict Liability for Employers Stark v Post Office [2000] C was a postman. Front brake broke and sustained injury. The accident was not foreseeable in the sense that an inspection would have revealed the defect. But, employer owed absolute obligation to provide work equipment in good working order.

7. Strict Liability for Employers Work Equipment Spencer-Franks v Kellog Brown [2008] “Everyone using the control room, was using it for the purposes of their work. They used the door to enter or leave the control room and, in doing so, they used the closer. Its purpose was for use at work.”

8. Strict Liability for Employers Work Equipment Examples:- Bolt to secure fish plates on a railway line Roller shutter door Folding dining table Van’s roof rack A bus Lift in an office block Removable ladder of a bunk bed on an oil rig

9. Strict Liability for Employers Regulation 9(1) PUWER “Every employer shall ensure that all persons who use work equipment have received adequate training in the methods which may be adopted when using the work equipment…”

10. Strict Liability for Employers Regulation 9(1) PUWER Allison v LUL [2008] C was a tube driver Suffered a stress injury using her thumb to hold the lever Training provided about using lever but no specific training about how it should be held. LUL should have obtained advice from expert before putting lever into service.

11. Strict Liability for Employers Workplace ( HSW) Regs 1992 12(1):- “Every floor in a workplace and the surface of every traffic route in a workplace shall be of such a construction that the floor or surface…is suitable for the purpose for which it is used.”

12. Strict Liability for Employers Ellis v Bristol CC [2007] C worked in a home for the elderly. Slipped on a pool of urine. “If a smooth floor is frequently…slippery, albeit only temporarily, the surface….may properly be said to be unsuitable, if the slipperiness is such as to give rise to a risk to the health and safety of employees…” Case decided under the strict liability provisions.

13. Vicarious Liability “Legal responsibility imposed on an employer, although he himself is free from blame, for a tort committed by his employee in the course of his employment.” Lord Steyn – Lister v Hesley Hall [2002]

14. Vicarious Liability Lister v Hesley Hall Warden employed by D sexually abused a number of pupils. House of Lords held that employer was vicariously liable for the warden’s acts. “…there is a very close connection between the torts of the warden and his employment.”

15. Vicarious Liability Post-Lister Employer of a night-club bouncer who paralysed the Claimant outside and away from the club was to blame for the employees’ actions. Mattis v Pollock [2004]

16. Common Sense Prevails Mitchell & Others v Co-operatives Ltd [2012] C’s were employed as shop assistants. Location made store vulnerable to robberies. C’s were victims of 3 robberies between 2004-2005. Claimed damages from their employer for psychiatric injury suffered.

17. Common Sense Prevails Mitchell & Others v Co-operatives Ltd [2012] C’s alleged D had not done enough to keep them safe. Some safety measures were introduced. C’s argued D should have gone further and:- Installed security screens around the till; Provided a full-time security guard.

18. Common Sense Prevails Mitchell & Others v Co-operatives Ltd [2012] D accepted it owed a common law duty to keep them safe. Court of Appeal held:- A security screen might have some deterrent but the risks outweighed the benefit; and Costs implications of a full-time security guard were a relevant factor.

19. Common Sense Prevails Mitchell & Others v Co-operatives Ltd [2012] “…a proper approach requires a balance to be struck against the probable effectiveness of the precaution that can be taken and the expense that it involves.”