September 16, 2006
The basis of the liability of an employer for negligence in respect of injury suffered by his employee during the course of the employee’s work is twofold: 1. He may be liable for breach of the personal duty of care which he owes to each employee; 2. He may be vicariously liable for breach by one employee of the duty of care which that employee owes to his fellow employees. The action against the employer for damages by the employee who suffers personal injury on the job is only one of the methods available for compensation for workplace accidents.
2. Common Law Duties of the Employer
There are essentially implied terms of the contract of employment – ‘It is quite clear that the contract between employer and employed, involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk…” per Lord Herschell in Smith v. Baker
This was later refined in Wilsons and Clyde Coal Co v. English and in Davie v. New Merton Board Mills Ltd. The duty is now regarded as four-fold and is non-delegable. In sum, the employer must take reasonable care to provide: 1. A competent staff of workers;
2. Adequate plant and equipment;
3. A safe system of working; and
4. A safe place of work.
The common law duty of an employer to his employees was enunciated in Davie v. New Merton Board Mills Ltd  1 All ER 346 as a duty to take reasonable care for their safety i.e. you owe an employee a duty of care not to cause them damage. In that case, in 1946 an old-established firm of toolmakers made a drift (a tool consisting of a tapered bar of steel about one foot long) which had a latent defect, viz, excessive hardness of the steel due to negligent heat treatment. In July, 1946, the manufacturers sold the drift to B & Co Ltd reputable suppliers of tools of this kind, from whom, in the same month, the employers of D bought at a reasonable price a batch of drifts, including this tool. The defect in the drift was not discoverable on inspection and no intermediate examination by the employers between the times of its manufacture and of its use was reasonably to be expected. Between July, 1946, and March, 1953, the drift was seldom, if ever, used, but in March, 1953, D used it in the course of his employment as a maintenance fitter. Owing to the defect in its manufacture, a piece flew off the drift when it was struck with a hammer by D in the course of using it, and destroyed the sight of his left eye. There was no negligence in the employers’ system of maintenance and inspection and the accident was solely due to the defect in the drift. HELD: -
The employers were not liable to D for the injury caused to him by the defective drift, because they had fulfilled their duty to him as their servant, namely, a duty to take reasonable care to provide proper appliances, and were not responsible for the negligence of the manufacturers, who had no contractual relationship with the employers and in manufacturing the tool were not acting as persons (whether servants, agents or independent contractors) to whom the employers had delegated the performance of any duty that it was for the employers to perform. Per Lord Tucker: in my view, it would have made no difference if the drift had been purchased [by the employers] direct from the manufacturers. An employer may, however, render himself liable to his servant for injury suffered by him by reason of a faulty specification prepared by the employer for the manufacturer, or where the manufactured article may require inspection or test after delivery.
The duty is not an absolute one and can be discharged by the exercise of due care and skill, which is a matter to be determined by a consideration of all the...
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