Personal Injury: Employer's Liability Claims

An employer may be personally liable to an injured employee on the basis of:

     a) common law negligence; and/or

     b) breach of statutory duty

These heads of liability are not mutually exclusive, and in certain circumstances an employer may be liable to an injured employee under both heads, or just the one. An employer may also be vicariously liable to an injured employee where the injury was caused by a tort of another employee who was acting in the course of his employment.

Common Law Negligence

An employer is under a duty to take reasonable care of his employees’ health and safety in the course of their employment.

 An employer is required to exercise due care and skill in four particular areas, i.e. to provide:

      1. competent staff

      2. adequate plant and equipment

      3. a safe system of work; and

      4. safe premises

The standard of care demanded of an employer was summarised by Swanwick J in Stokes v Guest keen and Nettlefold Bolts & Nuts Ltd [1968] 1 WLR 1776:

“the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know”

 Swanwick J also said an employer must:

 “weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance this against the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve”

 Breach of Statutory Duty

It is not possible to set out all the legislation that is in force, however what follows are some of the    more frequently relied on regulations in claims for personal injury:

Management of Health and Safety at Work Regulations 1999

• Risk assessment (reg 3)
• Principles of Prevention (reg 4)
• Health surveillance (reg 6)
• Health and Safety assistance (reg 7)
• Information for employees (reg 10)
• Employee capabilities and health and safety training (reg 13)
• Risk assessment for new or expectant mothers (reg 16)
• Protection of young employees (reg 19) 

Health and Safety (Display Screen Equipment) Regulations 1992 (as amended)

Provision of Use of Work Equipment Regulations 1998 (as amended)

Personal Protective Equipment at Work Regulations 1992 (as amended)

Manual Handling Operations Regulations 1992 (as amended)

Workplace (Health, Safety and Welfare) Regulations 1992

Work at Height Regulations 2005

Control of Substances Hazardous to Health Regulations 2002

It is the employer’s duty to report, maintain and implement safety provisions.

Although breach of statutory duty and negligence are two distinct causes of action, they are inevitably linked. It is difficult, though not impossible, to show that even if the employer has complied with the regulations, he has still been negligent. For example, the case of Bux v Slough Metals Ltd [1974] 1 All ER 262, the employer was found to have complied with regulations which required the provision of goggles to its employees and so had complied with it statutory duty however it had failed to instruct the employees to wear the goggles and was therefore in breach of its common law duty.

For more information, on how these regulations may affect your business or if you think you have a potential claim against your employer for breach of their statutory duty or negligence, please contact our Personal Injury specialist, Helen Mandeville, at hm@kidwellssolicitors.co.uk

Excerpts from:  Mardell and Serfozo. Personal Injury and Clinical Negligence Litigation (College of Law Publishing)