24
|
P a g e
Duty of Care
It is a well-established principle at common law that employers must take reasonable
care to protect their employees from the risks of foreseeable injury, disease or death at
work.
If an employer is aware of a health and safety risk to employees, or ought, in the light of
current knowledge 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.
The common law duties of an employer were identified in general terms in Wilsons &
Clyde Coal Co. Ltd v. English (1938). In this well-known case the employers were liable
for injuries caused to a miner as a result of an unsafe system of working. In arriving at
their decision, the judges re-examined the employers traditional common law duties -
the provision of competent fellow employees, properly maintained plant and
equipment, and a safe place and safe system of work. The case was also important
because it stated that those duties were owed personally by the employer to each
employee and were non-delegable - that is to say, the performance of those duties could
be delegated but the responsibility for their correct discharge could not.
The common law requires that all employers provide and maintain:
A safe place of work with safe means of access to and egress from it
A safe system for doing that work
Competent and safety-conscious personnel
Safe appliances, equipment and plant for doing the work
These duties apply even though an employee may be working on a third party's
premises or where an employee has been hired out to another employer, but where the
control of the task still lies with the permanent employer. Consequently the test of
whether or not an employee has been temporarily employed by another employer is
one of control.
Safe Place of Work
You will appreciate that should an employer create a place of work, it follows that there
should be some legal requirement on him to ensure that such a place of work shall be as
safe as the standard of reasonable care demands. This liability is also extended to means
of access and egress to and from the place of work. It would be unreasonable to expect
an employee to be at risk on his employers land while going to or leaving his place of
work, whilst at the same time requiring that the same employee be made safe at such
place of work.
Safe System of Work
