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Common Law Assignment 3

Common Law Assignment 3

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Common Law Assignment 3 – Sakeena Moid Nooruddin
TORTIOUS LIABILITY
Q1. Explain and discuss the above case with elation to Employers Duty of Care.Ans)
Introduction
Occupational health and safety law consists of both common law and statute law. The principles and rules of common law are contained in the past decisions of the courtsand hence common law is synonymous with case law. It governs the rights and dutiesof individuals towards one another; it thus covers the rights of employees and their dependents to sue employers for damages for personal injury, disease or death at work i.e. the civil liability of employers. Statute law consists of Acts of Parliament, such asthe Health and Safety at Work, Act 1974 (hereafter the HSW Act) and subordinatelegislation, i.e. Statutory Instruments and Statutory Rules and Orders. Breach of theHSW Act results in criminal liability.Two main legal duties are laid upon an employer:
1)
The common law duty to take reasonable care to protect employees from risk of foreseeable injury, disease or death at work and
2)
The statutory duty to comply with all the relevant legislation pertaining to thework activity.
The duty of care
Under common law, everyone owes a duty to everyone else to take reasonable carenot to allow them to suffer foreseeable injury. In particular, employers must providefor their employees a safe place of work, a safe system of work, safe plant andappliances and safe and competent fellow workers. Likewise, employees have a dutyto perform their work with reasonable care and skill.The duty of care is essentially a balancing of interests; the degree of risk mayreasonably be balanced against the cost of safety.
General duties under the HSW Act
Introduction
The HSW Act has incorporated into statute law the common law requirements for thecontrol of health and safety at work.The objectives of the Act are to:
1)
Secure the health, safety and welfare of people at work.
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Common Law Assignment 3 – Sakeena Moid Nooruddin2)
Protect people other than those at work against the risks to their health andsafety arising from work activities.
3)
Control the keeping and use of explosives or highly flammable or otherwisedangerous substances, and generally prevent people from unlawfully having or using substances and
4)
Control the release into the atmosphere of noxious or offensive substancesfrom premises to be prescribed by regulations.To meet these objectives, duties have been laid upon all, from employers, employees,the self-employed, those in control of premises, etc. to members of the public. Theduties are expressed in general terms so that they apply to all types of work activityand situations, and they emphasize the principles of safety responsibility and safeworking.Some of the duties imposed by the HSW Act and related legislation are absoluteduties and must be complied with but many are qualified by the words "so far as isreasonably practicable" or "so far as is practicable". These expressions are not definedin the Act itself but have acquired meanings through interpretations handed down inthe courts. To carry out a duty "so far as is reasonably practicable" means that thedegree of risk in a particular activity or environment can be balanced against the time,trouble, cost and physical difficulty of taking measures to avoid the risk. The greater the risk, the more likely it is that it is reasonable to make great effort to reduce thatrisk. However, if a disproportionate cost in terms of time, money, etc. is required toremove a small risk, then it would not be reasonable expenditure. It is important toremember, though, that the size or financial positions of the business, etc. are nottaken into account when judging what is reasonable."
So far as is practicable
" implies a stricter standard. It usually refers to what istechnically possible at the current time and the time, cost and trouble involved incarrying out the duty cannot be taken into account.
Duties of employers to their employees
All employers have a general duty to ensure, so far as is reasonably practicable, thehealth, safety and welfare at work of all their employees, wherever the work is carriedout, i.e. on their own or on others' premises. More particularly, this includes
a)
The provision and maintenance of machinery, equipment and other plant andsystems of work that are, as far as is reasonably practicable, safe and without risk to health.
 b)
Arrangements for ensuring, so far as is reasonably practicable, safety and absenceof risks to health in connection with the use, handling, storage and transport of articles and substances.
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Common Law Assignment 3 – Sakeena Moid Nooruddinc)
The provision of such information, instruction, training and supervision as isnecessary to ensure, so far as is reasonably practicable, the health and safety atwork of his employees.
d)
So far as is reasonably practicable as regards any place of work under theemployer's control, the maintenance of it in a condition that is safe and withoutrisks to health and the provision and maintenance of means of access to and egressfrom it that are safe and without such risks, and
e)
The provision and maintenance of a working environment for employees that is,so far as is reasonably practicable, safe, without risks to health and adequate asregards facilities and arrangements for their welfare at work. [Sections 2 (2) (a)-(e) of HSW Act].These general duties are elaborated in more detail in various sets of Regulations madeunder the HSW Act. Of particular significance are three which implement EuropeanCommunity directives, viz. the Management of Health and Safety at Work Regulations 1992, the Provision and Use of Work Equipment Regulations 1992 andthe Workplace (Health, Safety and Welfare) Regulations 1992.The Management Regulations effectively make more explicit what is required under the HSW Act. They require employers to:
a)
Assess the risks to the health and safety of employees and anyone else who may be affected by the work activity, and thus to identify the necessary preventive and protective measures to be taken; where there are five or more employees, thesignificant findings of the assessment must be recorded;
 b)
Have arrangements in place to cover health and safety: these should be integratedwith the management system for all other purposes and will usually include thefollowing elements which are typical of any other management function:
Planning:
adopting a systematic approach which identifies priorities and setsobjectives.
Organization:
 putting in place a system involving logical and unbrokendelegation of health and safety duties, the aim being to ensure a progressiveimprovement in health and safety performance.
Control:
ensuring that decisions are implemented as planned.
Monitoring and review:
assessing how well the policy is meeting its statedaims and objectives, and revising as necessary.
c)
Provide appropriate health surveillance for employees where the risk assessmentshows it to be necessary.
d)
Appoint competent people to help devise and apply the measures that need to betaken in order to comply with the duties laid on employers under health and safetylaw.e)Set up emergency procedures.
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