Employer's Liability
Employer's Liability
Employer's Liability
Employer’s Liability
Tutorial Question #1
You are consulted by Bertie Beanpole, the general manager of a new manufacturing
company in Commonwealth Caribbean jurisdiction. Write a memorandum to Mr.
Beanpole explaining the nature of the legal duties of an employer to protect its employees
from injury, and the nature of the liability of an employer to an employee who is injured
at the work place.
MEMORANDUM
The liability of an employer for negligence in respect of injury suffered by his employee
during the course of the employee’s work is two-fold: an employer owes a personal, non-
delegable duty of care to each employee; and may be vicariously liable for breach of the
duty of care which an employee owes his fellow employees.
At Common Law, Lord Wright in Wilson and Clyde Coal v. English, employs a
three-fold division of the employer’s duty – the provision of a competent staff of men,
adequate plant and equipment, and a safe system of working with effective supervision.
However, according to Winfield & Jolowicz of Tort, there is but one duty, a duty to take
reasonable care so to carry on operations as not to subject the persons employed to
unnecessary risk.
The majority of reported cases concern accidents, but this is only because in
earlier times there was less awareness of the risks of health, as opposed to safety,
presented by employment. The increased knowledge about matters such as the effects of
asbestos (Jameson v. CEGB [1997] 3 WLR 151), noise (Thompson v. Smith’s
Shiprepairers Ltd. [1984] QB 405), vibration (Bowman v. Harland & Wolff [1992] IRLR
349), and the effects of repetitive manual movements (McSherry v. BT [1992] 3 Med. LR
129) has produced litigation in recent years.
In many respects, an employer’s duty of care is similar to the tort of negligence.
However, even though the duty of an employer cannot easily be discharged, it is not an
absolute duty, and it is for the plaintiff to prove its breach. If a worker cannot prove
negligence, whether by direct evidence or with the aid of the maxim res ipsa loquitur, an
action based on breach of the employer’s personal duty must fail. This must be kept in
mind when examining the branches of an employer’s common law duty to his employees.