2 Civil liability
Introduction
The two main areas of civil liability at common law are contract and tort. This chapter examines the duties that the law of tort has placed on employers. Contract law has generally not been concerned with liability for injuries, disease or death.
An Employer’s Liability in Tort
A tort is a ‘civil wrong’. The three principal torts are those of negligence, trespass and nuisance. The rule of common law is that everyone owes a duty to everyone else to take reasonable care so as not to cause them foreseeable injury. Where an employee suffers injury or disease at work, he may be in a position to sue his employer within the tort of negligence or breach of statutory duty.
The common duty of care
The position at common law is that employers must take reasonable care to protect their employees from the risks of foreseeable injury, disease or death at work. The effect of this requirement is that if an employer knows of a health and safety risk to employees, or ought, in the light of knowledge current at that time, to have known of the existence of a hazard, he will be liable if an employee is injured or killed or suffers illness as a result of the risk, or if the employer failed to take reasonable care to avoid this happening.
An employer’s duties under common law were identified in general terms by the House of Lords in Wilsons & Clyde Coal Co. Ltd v. English (1938) AC 57 2 AER 628. The common law requires that all employers provide and maintain:
• a safe place of work with safe means of access and egress
• safe appliances and equipment and plant for doing the work
• a safe system for doing the work
• competent and safety-conscious personnel.
These duties apply even though an employee may be working away on a third party’s premises, or where an employee has been hired out to another employer, but where the control of the task he is performing still lies with the permanent employer. The test of whether or not an employee has been temporarily ‘employed’ by another employer is one of ‘control’.
Vicarious liability
The doctrine of vicarious liability is based on the fact that if an employee, while acting in the course of his employment, negligently injures another employee or the employee of a contractor working on the premises, or even a member of the public, the employer, rather than the employee, will be liable for that injury. As most accidents at work are caused in this way, rather than as a result of personal negligence on the part of the employer, vicarious liability is the ground on which most civil claims for injury-type accidents are won.
Vicarious liability rests on the employer simply as a result of the fact that he is the employer and is deemed to have ultimate control over the employee in what is known as a master and servant relationship. This liability must be insured against under the Employers’ Liability (Compulsory Insurance) Act 1969, and, indeed, employers cannot contract out of this liability as it is prohibited by the Law Reform (Personal Injuries) Act 1948 and the Unfair Contract Terms Act 1977.
The key to liability is that the accident causing the injury, disease or death arises, first, out of and, second, in the course of employment. This does not, however, normally include the time travelling to and from work (though it would if the mode of transport for such travelling was within the employer’s control or was provided by them or in arrangement with them).
Notwithstanding vicarious liability, the employee can be sued instead of, or as well as, an employer where the employee has been negligent (see Lister v. Romford Ice & Cold Storage Co. Ltd (1957) and Chapter 5).
The Tort of Negligence
‘Negligence’ can be defined as ‘careless conduct injuring another’. The duties of employers at common law listed above are part of the general law of negligence and, as such, are specific aspects of the duty to take reasonable care. Negligence has been defined at common law as:
• the existence of a duty of care owed by the defendant to the claimant
• breach of that duty
• damage, loss or injury resulting from or caused by that breach (see Lochgelly Iron & Coal Co. Ltd v. M’Mullan (1934) AC 1)
These three circumstances must be established by an injured employee before they will be entitled to bring a civil claim for damages. (Cases illustrating these three aspects of negligence are covered in Chapter 5.)
Employers’ defences
There are two defences available to an employer sued for a breach of duties at common law, namely:
• voluntary assumption of risk (volenti non fit injuria)
• contributory negligence.
The first of these is a complete defence and means that no damages will be payable. The second is a partial defence and means that the injured employee’s damages will be reduced to the extent to which they are adjudged to be blamed for their injuries.
Volenti non fit injuria
The English translation of this term is ‘to one who is willing, no harm is done’. It applies to a situation where an employee, being fully aware of the risks that he is taking in not complying with safety instructions, duties and so on, after being exhorted and supervised, and having received training and instruction in the dangers involved in not following safety procedures and statutory duties, suffers injury, disease and/or death as a result of not complying with them. Here, it is open to an employer to argue that the employee, in effect, agreed to run the risk of the injury, disease and/or death involved in such action. If this defence is successfully pleaded, the employer will be required to pay no damages.
This defence has not generally been successful in cases brought by injured employees, as there is a presumption that employment and the dangers sometimes inherent in it are not voluntarily accepted by workers, but, rather, that employment is an economic necessity. This has been the position since the decision of Smith v. Baker & Sons (1891) AC 325, where the appellant, who was employed to drill rocks, was injured by stones falling from a crane operated by a fellow employee. Although the appellant knew of the risk he was running from the falling stones, it was held by the House of Lords that he had not agreed to run the risk of being injured.
An exception to this general position occurred in the case of ICI Ltd v. Shatwell (1964) 2 AER 999. Here, two brothers, the respondents, were employees of the appellant, and were employed as skilled shotfirers in rock blasting, for which they were highly paid. A statutory duty was placed on the two employees personally to take specific safety precautions when shotfiring was about to commence. The two employees had been thoroughly briefed regarding the dangers of the work and the risks involved, for example, premature explosion. They knew of the statutory prohibition in question. Nevertheless, they decided to test although a cable was too short to reach the shelter, rather than wait a few minutes until a workmate could go to get another cable. One brother handed the other brother two wires and the latter applied them to the galvanometer terminals. An explosion resulted, injuring both employees. On an appeal to the House of Lords, it was held that the employer was not liable for the following reasons:
• the employer was not in breach of statutory duty, that is, the breach of statutory duty was committed by the employees
• the two employees were highly skilled operators, part of a well-paid team, who were well aware of the risks.
The ‘double-barrelled’ action
Because an injured employee is entitled to sue his employer for damages for injury resulting from a breach of both a duty at common law and a statutory duty, this has led to the emergence of the ‘double-barrelled’ action against employers. In such cases, an injured employee sues separately, though simultaneously, for breach of both duties on the part of the employer. This development can be traced back to the decision in Kilgollan v. Cooke & Co. Ltd (1956) 1 AER 294, a case that involved the fencing requirements of the FA 1937.
It should be noted, however, that section 47 of the HSWA provides that:
• a breach of any of the general duties in sections 2–8 will not give rise to civil liability, but
• breach of any duty contained in regulations made under the Act will give rise to civil liability, unless the regulations state otherwise.
Limitations of actions
Generally, civil actions may not be brought after the expiration of six years from the date of the tort (Limitations Act 1939). However, in the case of personal injuries, this period stands at three years (Limitations Act 1975) from the date that the claimant was aware that he had grounds for an action. Special provisions were introduced to cover people who were unaware that they had contracted occupational diseases, such as asbestosis. On this basis, they could not commence an action in the same way as someone who was aware of an injury or physical condition.
The Limitations Act 1980 replaced the 1975 version, with the limitation periods remaining at six years and three years respectively. In the case of an accident at work involving injury, the limitation period is three years either from the date of the accident or from the deceased’s personal representative’s knowledge of the accident, whichever is the later. Where an injured person dies within three years, the period recommences from the date of death or of his personal representative’s knowledge.
Personal injury is defined as including any disease and any impairment of a person’s physical or mental condition. Under the Act a court has discretion to allow time-barred actions according to certain criteria. This is particularly appropriate in cases of occupational disease with a long latent period, such as asbestosis, or in cases of noise-induced hearing loss.
Access to information
Where an employee is suing an employer he will need access to certain information.
Under section 28 of HSWA, as amended by the Employment Protection Act 1975, anyone involved in civil proceedings may obtain a written statement of relevant factual information obtained in the exercise of his powers from an inspector.
Under section 27 of HSWA, the HSC can require any person to provide specific information concerning health and safety matters, either to the HSC or to an enforcing authority.
Disclosure of information
Disclosure is directly connected with the legal concept of ‘discovery and inspection’ of documents. Discovery of documents is the procedure whereby a party discloses, to a court or to any another party, the relevant documents in the action that he has, or has had, in his possession, custody or power.
Documentary evidence plays an important part in nearly all civil cases. In an industrial injuries action, for example, the employers are likely to have internal accident reports, machinery maintenance records, records of complaints, etc., which it is very much in the claimant’s interests to see, while on the other hand the claimant may have documents relating to his medical condition, or to his earnings since the accident, or state benefits which he has received, all of which may be highly relevant to the qualification of his claim by the defendants.
Disclosure for purposes of civil liability proceedings
In civil cases, discovery may take place in two ways, under the Rules.
1. Discovery without order (Automatic Discovery)
Parties must, in any action commenced by writ, make discovery by exchanging lists within 14 days of the close of the pleadings. The lists are in prescribed form, i.e.
(a) relevant documents, listed numerically, which the party has in his possession, custody or power and which he does not object to produce;
(b) relevant documents which he objects to produce; and
(c) relevant documents which have been, but at the date of service of the list, are not, in the possession, custody or power of the party in question.
A party serving a list of documents must also serve on his opponent a notice to inspect the documents in the list (other than those which he objects to producing) setting out a time within 7 days and the place where the documents in (a) above may be inspected.
A right to inspect includes the right to take copies of the documents in question.
2. Discovery by order
In certain cases an order for discovery will be required. The first case is where the action is one to which the automatic discovery rule does not apply or where any party has failed to comply with that rule. In this case an Application for an Order for Discovery must be made, should discovery be required. The second case arises where a party is dissatisfied with his opponent’s list. He may then apply for discovery of documents.
In either case an application must be made to the court for an order for discovery of the documents in question. The application must be accompanied by an affidavit setting out the grounds for the deponent’s belief and identifying the documents of which discovery is required.
Irrespective of the above provisions, any party may, at any time, require inspection of any document referred to in any other party’s pleadings or affidavits.
Where any party fails to comply with an order for discovery, the judge may order his statement of claim to be struck out, if he is a claimant, or his defence to be struck out and judgments entered against him, if a defendant. In a case of extreme and wilful disobedience the offender may be committed for contempt of court.
The above procedures are detailed in the Administration of Justice Act 1970, whereby orders for discovery and inspection of documents against proposed parties may be made before the commencement of proceedings.
Under section 34 of the Supreme Court Act 1981 there is, in addition, in actions for damages or death or personal injuries, power to order a person who is not a party to the proceedings, and who appears to be likely to have or has had in his possession, custody or power any documents which are relevant to an issue arising out of the action, to disclose whether these documents are in his possession, custody or power and to produce those documents which he has to the applicant. Such a power may be used, for example, by defendants to obtain a sight of a claimant’s hospital notes, or by claimants to obtain copies of manufacturers’ instructions for using and maintaining machines, reports by employers to the Health and Safety Executive and documents of that type.
Documents privileged from production
The only circumstances in which a party may refuse to produce a document is where the document is one of a class which the law recognises as privileged. The privilege which attaches to documents must be carefully distinguished from privilege in the law of defamation. Thus a document which attaches qualified privilege for the purposes of defamation, such as the minutes of a company board meeting, is not necessarily privileged from discovery. The former is a rule of law, the latter a rule of evidence or procedure.
A party who wishes to claim privileges for a document must include it under those relevant documents which he objects to produce, together with a statement in the body of the list of the ground upon which he claims privilege for it. The principal classes of document which the law recognises as being privileged from production are documents which relate solely to the deponent’s own case, incriminating documents, documents attracting legal professional privilege and documents whose production would be injurious to the public interest.
Disclosure of information by enforcement officers
Section 28 of HSWA requires that no person shall disclose any information obtained by him as a result of the exercise of any power conferred by sections 14 or 20 (including, in particular, any information with respect to any trade secret obtained by him in any premises entered by him by virtue of any such power) except:
• for the purposes of his functions
• for the purposes of any legal proceedings, investigation or inquiry, for the purpose of a report of any such proceedings or inquiry or of a special report made by virtue of section 14
• with the relevant consent.
Information must not normally be disclosed except with the consent of the person providing it.
Disclosure may be made in certain cases:
• for the purposes of any legal proceedings, investigation or inquiry held at the request of the HSC
• with the relevant consent
• for providing employees or their representatives with health- and safety-related information.
Insurance
The Employers’ Liability (Compulsory Insurance) Act 1969 requires employers to insure against claims by employees suffering personal injury, damage or loss. The following points must be considered:
• the certificate of insurance must be conspicuously displayed at the workplace
• it is standard practice to extend such a policy to provide insurance against public liability
• an employer must disclose all information to an insurer for it to be valid
• the policy must be approved by virtue of the Employers’ Liability (Compulsory Insurance) General Regulations 1999 and both policy and certificate must be made available to an enforcement officer
• the policy must state that any person under a contract of service or apprenticeship who sustains injury, disease or death caused during the period of insurance and arising out of the course of employment will be covered for any legal liability on the part of the employer to pay compensation.
• under the Employers’ Liability (Defective Equipment) Act 1969 the employer is deemed liable where injury is caused by defective equipment provided by the employer for use in his business and the defect is attributable (wholly or in part) to the fault of a third party.
The Employers’ Liability (Compulsory Insurance) Regulations 1999 consolidate with amendments former Regulations made under the 1969 Act and supplement the requirements of the 1969 Act relating to the compulsory insurance of risks relating to employees.
Under Regulation 2 certain conditions are prohibited in policies of insurance, namely any condition which provides (in whatever terms) that no liability (either generally or in respect of a particular claim) shall arise under the policy, or that any liability so arising shall cease, if:
• some specified thing is done or omitted to be done after the happening of the event giving rise to a claim under the policy
• the policyholder does not take reasonable care to protect his employees against the risk of bodily injury or disease in the course of their employment
• the policyholder fails to comply with the requirements of any enactment for the protection of employees against the risk of bodily injury or disease in the course of their employment
• the policyholder does not keep specified records or fails to provide the insurer with or make available to him information from such records.
Regulation 3 sets the limit of the sum to be insured at not less than £5,000,000. Regulation 4 and Schedule 1 place obligations on authorised insurers as to the issue of certificates including the form of the certificates. Certificates must also be kept by employers. Certificates must be displayed at each place of business where he employs employees of the class or description to which the certificate relates (regulation 5).
Where an employer is required to produce a certificate of insurance by form of a written notice from an inspector he must produce same or send it to any person specified in the notice (regulation 6). Similarly, an employer shall, during the currency of the insurance, permit the policy of insurance, or a copy of it, to be inspected:
• at such reasonable time as the inspector may require
• at such place of business of the employer (which, in the case of an employer who is a company, may include its registered office) as the inspector may require.
Schedule 1 states the form to be taken by a Certificate of Employers’ Liability Insurance.
Policy Number
1. Name of policyholder
2. Date of commencement of insurance policy
3. Date of expiry of insurance policy.
We hereby certify that subject to paragraph 2:
1. The Policy to which this certificate relates satisfies the relevant law applicable in Great Britain; and
2. (a) the minimum amount of cover provided by this policy is no less than £5,000,000; or
(b) the cover provided under this policy relates to claims in excess of £X but not exceeding £Y.
Signed on behalf of:
(Authorised Insurer)_________________________________________________
Signature__________________________________________________________
Employers’ Liability (Compulsory insurance) Regulations 1999
These regulations consolidate with amendments of former regulations made under the 1969 Act and supplement the requirements of the Act relating to compulsory insurance of risks relating to employees.
Prohibited conditions
Under regulation 2 certain conditions are prohibited in policies of insurance, namely any condition which provides (in whatever terms) that no liability (either generally or in respect of a particular claim) shall arise under the policy, or that any liability so arising shall cease, if
• some specified thing is done or omitted to be done after the happening of the event giving rise to a claim under the policy;
• the policyholder does not take reasonable care to protect his employees against the risk of bodily injury or disease in the course of their employment;
• the policyholder fails to comply with the requirements of any enactment for the protection of employees against the risk of bodily injury or disease in the course of their employment; or
• the policyholder does not keep specified records or fails to provide the insurer with or make available to him information from such records.
Limit of the sum to be insured
Regulation 3 sets the limit of the sum to be insured at not less than £5,000,000.
Obligations on insurers
Regulation 4 and Schedule 1 place obligations on authorised insurers as to the issue of certificates, including the form of the certificates.
Obligations on employers
Certificates must be kept by insurers. They must be displayed at each place of business where an employer employs employees of the class or description to which the certificate relates (regulation 5).
Where an employer is required to produce a certificate of insurance by form of a written notice from an inspector, he must produce same or send it to any person specified in the notice (regulation 6).
An employer shall, during the currency of an insurance, permit the policy of insurance, or a copy of it, to be inspected:
• at such reasonable time as the inspector may require; and
• at such place of business of the employer (which, in the case of an employer who is a company, may include its registered office) as the inspector may require.
Certificate of employers’ liability insurance
Schedule 1 states the form to be taken by a Certificate of Employers’ Liability Insurance thus:
Policy Number
1. Name of policyholder
2. Date of commencement of insurance policy
3. Date of expiry of insurance policy
We hereby certify that subject to paragraph 2:
1. The Policy to which this certificate relates satisfies the relevant law applicable in Great Britain; and
2. (a) the minimum amount of cover provided by this policy is no less than £5,000,000; or
(b) the cover provided under this policy relates to claims in excess of £X but not exceeding £Y.
Signed on behalf of:
(Authorised Insurer)________________________________________________
Signature__________________________________________________________
No-fault liability
Under normal circumstances claims for injury are negotiated between solicitors acting on behalf of an employer’s insurance company and an injured employee’s trade union. In most cases the injured employee has, in effect, to prove that he was owed a duty of care and that the employer had been negligent for a claim to succeed.
Under a no-fault liability system the employer would automatically be liable for injury to his employees and the insurance companies would compensate according to a set scale of damages. The employer would not admit fault as to the injury and, therefore, would not be strictly liable.
The advantage of a no-fault liability system is that there would be a quick settlement of the claim without the need to prove negligence, etc. The principal disadvantage is that the system could be open to abuse and could lead to more expensive insurance claims.
Fatal accidents at work
Under the Fatal Accidents Act 1976 dependants of a person killed at work may claim compensation for financial loss suffered by them as a result of the death.
Where death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages, the person who would have been liable if death had not ensued, shall be liable for damages (Administration of Justice Act 1982, amending the Fatal Accidents Act 1976).
Under the Administration of Justice Act 1982, a lump sum is also payable to dependants.
Subsequent remarriage or the prospect of remarriage of a dependant must not be taken into account in assessing fatal damages.
The Tort of Nuisance
Halsbury’s Laws of England states that ‘nuisances are divisible into common law and statutory nuisances’. ‘A common law nuisance is one which apart from statute, violates the principles which the common law lays down for the protection of the public and of individuals in the exercise and enjoyment of their rights.’ A ‘nuisance’ has also been defined as ‘an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects’.
Nuisances at common law may be private nuisances or public nuisances. A private nuisance can take many forms, but in all cases, they constitute some form of act, or failure to act, on the part of an individual or group that results in obstruction, inconvenience or damage to another individual or group. An action for private nuisance lies where there has been interference with the enjoyment of land. Such interference need not be intentional, however. Private nuisances are associated with, for example, the keeping of animals – say, dogs barking – the emission of smoke and gases from the burning of refuse and the longstanding problem of noise nuisance from neighbours. Such interference must be sufficiently significant and unreasonable, that is without thought for a neighbour or other person who could be affected, for such a case to be successful.
Actions in respect of private nuisances may be brought by a person injured by the nuisance and they may make a claim for damages and/or obtain an injunction. In appropriate cases, they may abate the nuisance themselves, for example, by lopping overhanging trees.
Public nuisances, on the other hand, have a direct effect on the public at large. Typical examples include obstruction of a public right of way or footpath, failure to make secure an excavation in a public car park and hosing down of brickwork whereby spray falls on members of the public in close proximity.
In cases of public nuisances, the person primarily responsible for the initiation of any action is the Attorney General, who has complete discretion in the matter. The Attorney General may, however, permit an individual or a local authority to use their name to bring a relator action if they are satisfied that it is justified.
However, a private individual may bring an action in their own name if they have suffered some direct and substantial injury, different in kind from that suffered by the rest of the public, or if the act is also a private nuisance against their land.
The Tort of Trespass
Trespass implies the intentional invasion of somebody’s person, land or goods. An action for trespass involves a civil claim for damages resulting from false imprisonment, unlawful entry on to the land of another, assault and battery.
Defamation
Defamation implies ‘a statement exposing a man to hatred, ridicule or contempt or causing him to be shunned or avoided by right-thinking members of society’.
Defamation in the permanent form is termed libel (written) and in the transitory form slander (spoken).
In a civil claim, the claimant must prove the statement was defamatory, referred to him, was published and damage was suffered.
A defendant has recourse to the following defences, namely that the statement was justified, fair comment, made under privilege, by way of apology and/or in offer of amends.
An Occupier’s Liability
While health and safety law is largely concerned with the relationships between employers and employees, consideration must also be given to the duties of those people and organisations, such as local authorities and companies, who occupy land and premises. Their land and premises are visited by people for a variety of purposes, such as to undertake work, provide goods and services, settle accounts and so on. The HSWA, section 4, requires those people in control of premises to take reasonable care towards such others, and failure to comply with this duty can lead to prosecution and a fine on conviction.
Furthermore, anyone who is injured while visiting or working on land or premises may be in a position to sue the occupier for damages, even though that injured person may not be their employee. Lord Gardner in the case of Commissioner for Railways v. McDermott (1967) 1 AC 169 explained the position thus: ‘occupation of premises is a ground of liability and is not a ground of exemption from liability. It is a ground of liability because it gives some control over and knowledge of the state of the premises, and it is natural and right that the occupier should have some degree of responsibility for the safety of persons entering his premises with his permission . . . there is “proximity” between the occupier and such persons and they are his “neighbours”. Thus arises a duty of care . . . .’
The Occupier’s Liability Acts 1957 and 1984
Occupier’s liability is a branch of civil law concerned with the duties of occupiers of premises to all those who may enter on to those premises. The legislation covering this area of civil liability is the Occupier’s Liability Act (OLA) 1957 and, specifically in the case of trespassers, the OLA 1984.
The OLA 1957
Previously, common law had given some form of protection to lawful visitors to premises that was based on proof of negligence against the occupier. The level of protection was related to whether or not the visitor was an invitee or licensee. This distinction is now obsolete and there is now one, common duty on the part of an occupier under the OLA – namely a common duty of care – to all lawful visitors. This common duty of care is defined as ‘a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’.
Section 1 of the OLA defines the duty owed by the occupiers of premises to all persons lawfully on the premises in respect of ‘dangers due to the state of the premises or to things done or omitted to be done on them’. Such liability is not confined to buildings and has been held to include, for instance, that of the main contractors retaining general control over a tunnel being constructed (see Bunker v. Charles Brand & Son Ltd (1969) 2 AER 59).
The OLA regulates the nature of the duty imposed in consequence of a person’s occupation of premises (section 1(2)). The duties are not personal duties, but, rather, are based on the occupation of premises and extend to ‘a person occupying, or having control over, any fixed or moveable structure, including any vessel, vehicle or aircraft’ (section 1(3)).
Visitors
Visitors to premises are classed as both invitees and licensees. Protection is afforded to all lawful visitors, whether they enter for the occupier’s benefit, such as customers or clients, or for their own benefit, for instance, a police officer, though not to persons exercising a public or private right of way over premises (section 2(6)).
Warning notices
Under the OLA 1957, occupiers have a duty to erect notices warning visitors of any imminent danger, such as an uncovered pit or obstruction. However, section 2(4) states that a warning notice does not, in itself, absolve the occupier from liability, unless, in all the circumstances, it was sufficient to enable the visitor to be reasonably safe. Moreover, while an occupier, under the provisions of the OLA, could have excused his liability by a suitable, prominent and carefully worded notice, the chance of such avoidance is not permitted as a result of the Unfair Contract Terms Act 1977 (UCTA). This Act states that it is not permissible to exclude liability for death or injury due to negligence by a contract or by a notice, including a notice displayed in accordance with section 2(4) of the OLA.
Trespassers
A trespasser is defined in common law as a person who:
• goes on to premises without invitation or permission
• although invited or permitted to be on premises, goes to a part of the premises to which the invitation or permission does not extend
• remains on premises after the invitation or permission to be there has expired
• deposits goods on premises when not authorised to do so.
The OLA 1984
The common law was, for many years, biased against trespassers. However, the OLA 1984 took a more humane approach. Section 1 of this Act imposes a duty on an occupier in respect of trespassers, namely ‘persons who may have lawful authority to be in the vicinity or not’, who may be at risk of injury on the occupier’s premises. This duty can be discharged by issuing some form of warning, such as the display of hazard warning notices, but such warnings must be very explicit. For example, it is insufficient to display a notice that merely states ‘Eye hazard’ where there may be a risk to visitors from welding activities. A suitable notice in such a circumstance might read,
RISK OF EYE INJURY FROM WELDING ACTIVITIES. NO PERSON IS ALLOWED TO ENTER THIS AREA UNLESS WEARING APPROVED EYE PROTECTION.
It is not good enough, however, to merely display such a notice. The requirements of such notices must be actively enforced by management. Thus, the old maxim ‘A notice without more is no defence in law’ applies in this case. Generally, the displaying of a notice, the clarity, legibility and explicitness of such a notice, and evidence of regular reminding of people of the message outlined in the notice, may count to a certain extent as part of the defence when sued for injury by a simple trespasser under the OLA 1984.
Individual risk taking
Under the OLA 1984, there is no duty on the part of occupiers to persons who willingly accept risks (section 2(5)). Also, the fact that an occupier has taken precautions to prevent persons going into their premises or on to their land where some form of danger exists, does not mean that the occupier has reason to believe that someone would be likely to come into the vicinity of the danger, thereby owing a duty to the trespasser under the OLA 1984 (section 1(4)).
Children
Children generally, from a legal viewpoint, have always been deemed to be less responsible than adults. The OLA 1957 is quite specific on this matter. Section 2(3)(a) requires an occupier to be prepared for children to be less careful than adults. Where, for instance, there is something or a situation on the premises that is a lure or an attraction to a child, such as an old motor car, a pond or scaffolding, this can constitute a ‘trap’ as far as a child is concerned. Should a child be injured as a result of this ‘trap’, the occupier could then be liable. Much will depend on the location of the premises, for instance, whether it is close to houses or a school or isolated, such as a farmyard deep in the countryside but, in all cases, occupiers must consider the potential for child trespassers and take appropriate precautions.
Structural defects
An occupier’s liability for injury to a visitor resulting from structural defects, such as a defective roof or a hole in the road, only applies to those defects of which the occupier had prior knowledge or had reason to believe existed. This duty was extended to trespassers under section 1 of the OLA 1984.
Contractors and their employees
The relationship between occupiers and contractors has always been a tenuous one. Section 2(3)(b) of the OLA 1957 states that an occupier may expect that a person in exercising their calling, such as a bricklayer, painter or window cleaner, will appreciate and guard against any risks ordinarily incident to it, say, the risk of falling, so far as the occupier gives them leave to do so. This means that the risks associated with the system of work on a third party’s premises are the responsibility of the contractor’s employer, not the occupier. (It should be appreciated, however, that while the above may be the case in civil law, the situation of criminal law, namely the duties of an employer towards a non-employee under section 3 of the HSWA, is quite different – see Section 3: General duties of employers and the self-employed to people other than their employees, page 53.)
Where work is being done on premises by a contractor, the occupier is not liable if they:
• took care to select a competent contractor
• satisfied themselves that the work was being properly done by the contractor (OLA, section 2(4)(b)).
However, in many cases, an occupier may not be competent or knowledgeable enough to ascertain whether the work is being ‘properly done’. For instance, an occupier may feel that an unsafe system of work adopted by a contractor’s employee, such as cleaning windows to the fourth floor offices without using any form of protection, such as a suspended scaffold or safety line, is standard practice among window cleaners! In such cases, an occupier might need to be advised by a surveyor, architect or consultant health and safety specialist in order to be satisfied that the work is being done properly.
The Employer’s Liability (Defective Equipment) Act 1969
As a result of the Employer’s Liability (Defective Equipment) Act 1969, employers have been strictly liable for injuries to employees caused by defective equipment, where the defect is wholly or in part the result of manufacture, that is by a third party.
This Act was passed largely to reverse the effect of the case of Davie v. New Merton Board Mills Ltd (1956) 1 AER 379. This case involved a worker who had been blinded in one eye when a drift that he was using broke and a piece flew out, hitting him in the eye. The employers argued that they had acquired the drifts from a well-known and reputable supplier. On this basis, the House of Lords ruled that the company had exercised reasonable care.
The Act provides that an injury suffered by an employee is to be attributable to negligence by the employer in the following situations:
• where an employee suffers personal injury (including death) in the course of employment in consequence of a defect in equipment
• the equipment was provided by the employer for use in the employer’s business
• the defect is attributable, wholly or in part, to the fault of a third party, whether identified or not, such as a manufacturer, supplier, distributor, importer.
Employers, therefore, are liable for defects in manufacture and supply and should protect themselves against this by way of contractual indemnity against the manufacturer or importer.
Defences Available in Civil Liability Claims
When presented with a civil claim, an occupier or employer may make a denial of liability based on the following:
• that the duty alleged to have been breached by the defendant was never owed in the first place
• that the nature of the duty was different to that pleaded by the defendant
• that the duty was complied with
• that the breach of duty did not lead to the damage in question
• that the claimant was guilty of contributory negligence that resulted wholly in the damage.
A further aspect of any defence could be the fact that the conduct of the claimant, which constituted contributory negligence in this case, caused and/or resulted in the damages they suffered and that a proportion of the damages should be reduced accordingly. Moreover, in certain situations, it may be possible to show that the accident was the fault of some other party. Where another party is blamed in the defence, the usual result is that they are joined as co-defendant by the claimant, and they sue both.
Res ipsa loquitur
This term means ‘the thing speaks for itself’. It is a term that commonly arises in civil actions, implying that the defendant was negligent or careless, or that if they had taken proper precautions or ordered their work correctly, the damage would not have arisen. In other words, the negligence is self-evident. On this basis, it is for the defendant to prove the absence of fault rather than for the claimant to prove fault on the part of an employer or occupier.
In the case of Ward v. Tesco Stores Ltd (1976) 1 AER 219, while shopping the appellant slipped on some yogurt that had been spilled on the floor, was injured and sued the respondent for negligence. It was held that it was the duty of the respondents to keep the floors clean and free from spillages and that it was for the respondents to show that the accident had not arisen from a lack of reasonable care on their part. In the absence of a satisfactory explanation as to how the yogurt was spilled on the floor, the inference was that the spillage had occurred because the respondents had failed to exercise reasonable care.
Res ipsa loquitur applies, therefore, in the following circumstances:
• the thing or event causing the accident must be under the control of the employer, or under their management/control
• the injury-causing accident must be one that does not happen in the ordinary course of events
• the accident would not have happened if management had been exercising reasonable care
• absence of explanation, on the part of the defendant, to indicate that they had used reasonable care.
A defendant can set aside the presumption against them by:
• proving that reasonable care was taken
• providing an alternative explanation for the accident that is equally probable and does not involve negligence on their part
• providing a complete analysis of the facts, that is, by stating the specific facts of the case and inviting full consideration of liability.