What does 'employers' primary liability' mean?

When we speak of the liability of employers at common law, we are looking at the law of
negligence being applied to the employer / employee relationship. The common law has
long recognised the need to impose a duty of care on employers to take reasonable care
for the safety of their employees.

In this element, therefore, you will be considering again the concepts of duty, breach,
causation, remoteness and defences that you will have already considered when
studying negligence in other contexts.
We are concerned in this chapter with the primary liability of employers at common law
(ie where the employer is at fault and has breached their duty of care owed to an
employee). This is as distinguished from secondary (or vicarious) liability where the
employer, while not at fault himself, is held responsible for the faults of his employees.

Employers' primary liability Employers' vicarious liability

(this element) (not this element)

Employer /
Employer
tortfeasor

Employee Employee
Claimant
/ claimant / tortfeasor
The liability described in this chapter concerns only the duty owed by employers to
employees. Deciding whether someone is an employee is a complex and somewhat
separate question, which is not covered in this element, but you may study that
elsewhere, within your studies of tort or whilst studying other subjects.

In the event that you are called upon to consider what duty might be owed to another sort
of worker, such as an independent contractor, you will need to consider separate
principles. A duty might still be owed by a business to an independent contractor, but as a
general rule the level of protection offered to employees is higher than for other workers.
The case law set out in this element, which relates to employees, will not automatically
apply to other workers such as independent contractors, nor even to those in a
relationship 'akin to employment'.
Why consider employers' primary liability separately?
If the liability of employers at common law is simply a particular application of the law of
negligence, why consider it separately?

Employers' primary liability merits particular attention because:

(a) Some tortious principles have been developed which are unique to this area; and

(b) It is an important area in practice: work-related injuries and ill-health have a significant
economic and human impact, and also represent a significant field of litigation.

To ensure that the duty on employers really does confer practical protection on
employees, it is compulsory for employers to have insurance to cover such claims. See
the Employers' Liability (Compulsory Insurance) Act 1969 and the Employers' Liability
(Compulsory Insurance) Regulations 1998.
The employers' duty of care – personal and non-delegable
The most important feature of the duty of care imposed on employers is that it is personal
and non-delegable (McDermid v Nash Dredging [1987] 2 All ER 878). This means that
regardless of who the employer uses to carry out tasks, the ultimate responsibility for the
safety of the employee rests with the employer – he can delegate performance of the
duty, but not liability for its breach. This means employers are directly liable if those they
have entrusted with responsibility fail to exercise reasonable care in respect of an
employee's safety.
What is the employer's duty?
As far as employers are concerned, rather than relying on the basic formulation that a
duty to take 'reasonable care' is owed, we can look at how the courts have actually
specified what is encompassed by the duty owed by an employer to his employees.

Key case: Wilsons and Clyde Coal Co Ltd v English [1938] AC 57

In this case the House of Lords held that the employer's duty to take
reasonable precaution to ensure an employee's safety included obligations
to provide:

(a) Safe and competent employees;

(b) Safe and proper plant and equipment;

(c) Safe place of work/premises, including safe access and way out; and

(d) Safe systems of work, with adequate supervision and instruction.

 Obligations
Safe / Safe / proper Safe place of
within Safe systems
competent plant and work /
employer's of work
employees equipment premises
duty

What is clear is that there is only one single duty, namely to take reasonable precaution
to ensure an employee's safety.
The above elements are particular facets / examples of the duty / breach, and there will
be other facets / examples too. We will look at each of these four in turn, considering safe
and proper equipment and safe place of work together.
 Obligations
Safe / Safe / proper Safe place of
within Safe systems
competent plant and work /
employer's of work
employees equipment premises
duty

Safe and competent fellow employees

An employer has a duty to select and employ competent staff. If a member of staff
behaves in a way that poses a continuing risk to the safety of others, then it may be
necessary to dismiss or re-deploy that person. Actions involving incompetent staff are
usually taken under vicarious liability rather than employers’ primary liability, but if the
claimant is an employee you must remember the possibility of an action for the breach of
this primary duty as well.
Examples of breach:

If an incompetent person is employed or required to do a job that they are not capable of
doing, then there will be a breach of the employer's duty (Black v Fife Coal Ltd [1912] AC
149).

Employing someone known to be in the habit of playing practical jokes on fellow

employees (or where that should have been known) has also been held to be a breach
(Hudson v Ridge Manufacturing Company Ltd [1957] 2 QB 348).

Note that where one employee injures a fellow employee then, in addition to a possible
action against the employer for breach of this duty, there may also be the possibility of an
action against the employee himself (though, financially, this would almost certainly be a
waste of time) and (as mentioned above) the possibility of the employer being vicariously
liable. The latter claim involves different principles of law which are not addressed in this
element.
 Obligations
Safe / Safe / proper Safe place of
within Safe systems
competent plant and work /
employer's of work
employees equipment premises
duty

Safe place of work / premises, including safe plant and equipment

Premises / place of work

The employer has a duty to take reasonable care to ensure that the premises the
employee works in are safe.

Note that many employees will need to do some / all of their work in premises which are
not owned / occupied by the employer. The employer's duty extends to these 'third party'
premises too.
So, in Wilson v Tyneside Cleaning Co [1958] 2 QB 110, the court held that a window
cleaning company owed a duty to take reasonable steps to ensure that all the locations
where the window cleaners cleaned windows were safe. However, when it comes to
considering whether the employer has breached this duty, what is expected of the
employer in relation to third party premises is generally less than in relation to the
employer's own premises. When it comes to the safety of third party premises, the court
will consider what is reasonable in all the circumstances, including the place of work, the
nature of the building, the experience of the employee, the nature of the work, the degree
of control exercised by the employer and the employer's knowledge of the premises (see
Cook v Square [1992] ICR 262).
Safe machinery, plant and equipment

The duty to provide a safe place of work also extends to providing safe machinery, plant
and equipment (including any necessary safety features and protective clothing). In
Qualcast v Haynes [1959] AC 743 the employer discharged its duty in this regard by
providing protective boots against the obvious danger of splashes of molten metal
(although this case would probably not be decided in the same way today given statutory
provisions not considered in this element relating to the provision of protective
equipment). In addition, the courts might now decide that the employer should insist upon
employees wearing boots when dealing with molten metal given the dangerous working
environment.

In Yorkshire Traction Co Ltd v Walter Searby [2003] EWCA Civ 1856 the claimant bus
driver was stabbed by a passenger and claimed that the bus company had been
negligent in failing to use protective screens between drivers and passengers. The
defendant bus company argued that they had in fact introduced the screens on some
buses, but that drivers had objected to them (and in some cases removed them) because
the screens reflected light at night and were therefore dangerous. It was also argued that
the risk of assault in the area from passengers was very low. The Court of Appeal held
that, balancing these factors against each other, the bus company was not negligent in
failing to put up the screens in all buses.
 Obligations
Safe / Safe / proper Safe place of
within Safe systems
competent plant and work /
employer's of work
employees equipment premises
duty

Safe system of work

In Wilsons and Clyde Coal Ltd v English (see above) Lord Wright held that it was the
personal duty of the employer to see to the safety of the system of work, and that liability
cannot be escaped by delegating performance of that duty to someone else.
In this case, a miner on the morning shift was leaving the pit when the haulage plant was
put into operation and he was crushed against the side of the road before he had time to
reach a refuge hole. The employers, who had delegated their duties to a qualified
manager, were held liable when the jury found it was unsafe to operate the haulage plant
while the morning shift was leaving work. The failure of the qualified manager to ensure
the safety of the claimant put the employer in breach of its duty of care.
Other cases have expanded on the Wilsons judgment. The question of what constitutes a
safe system of work was considered by Lord Greene, master of the rolls in the case of
Speed v Thomas Swift Co Ltd (1943). He said:

I do not venture to suggest a definition of what is meant by a system. But it

includes, or may include according to circumstances, such matters as the
physical layout of the job, the setting of the stage, the sequence in which the
work is to be carried out, the provision of warnings and notices, and the issues of
special instruction

The safe system of work would appear to include matters of instruction, training, warning
and supervision.

The case of General Cleaning Contractors Ltd v Christmas [1953] AC 180 stresses the
importance of planning work with due regard to safety, by having an agreed safe system
of work. This is discussed on the following page.
Key case: General Cleaning Contractors Ltd v Christmas [1953] AC
180
FACTS: Mr Christmas was a window cleaner. To save time on the job,
window cleaners working for General Cleaning Contractors Ltd had
developed a method of climbing onto the windowsills and holding onto the
window frames while cleaning the windows, instead of using ladders, which
was seen as unduly restrictive and impractical. Mr Christmas had pulled
the upper half of a sash window down in order to grip the bottom sash. The
top sash slipped down and trapped his fingers whereupon he let go and fell
to the ground, suffering injury. He claimed damages, alleging negligence by
his employer in connection with the manner in which the work was planned
and organised. He had not received any instructions, warnings or training
in relation to sash windows.
HELD: The House of Lords found that the employer was liable and held
that there was a duty on the employer to go to the site of work, assess the
risks, and plan and organise a safe system or method for doing the work so
as to minimise the risk of injury. It was suggested that the provision of
training, wedges or some other system to prevent the window frames from
slipping should be employed in order to make the job reasonably safe.
In Bux v Slough Metals [1974] 1 Lloyd's Rep 155 the claimant worker was splashed with
molten metal, losing the sight in one eye (he was working in a foundry, where metal is
cast into desired shapes by melting it and pouring it into moulds). His employer had
complied with the statutory duty to provide safety goggles (ie the duty to provide safety
equipment), but the court held that the personal duty at common law went further than
this, requiring the employer to encourage or insist on the wearing of the goggles. This
can be seen as part of providing a safe system of work. As Edmund Davies LJ put it:
"The question of whether instruction or persuasion or even insistence in using
protective equipment should be resorted to is… an answer depending on the
facts of the particular case. One of the most important of these is the nature and
degree of the risk of serious harm resulting if it is not worn."
However, where employees object or refuse to use safety equipment, an employer may
not be negligent for failing to enforce the use of that safety equipment.
The duty extends to providing a measure of instruction and supervision. The duty can,
therefore, be split into two distinct parts: the duty to create a safe system and the duty to
operate that safe system. Obviously the greater the risk the more supervision /
instructions should be exercised / given (Bux). Bux can be contrasted with Qualcast (see
'safe equipment' above) in which the employer did not insist on the claimant wearing
protective boots, but this was not a breach because the claimant was very experienced in
the relevant line of work and knew all the risks of the job.
Built into this concept is the recognition that employees will not always have proper
regard for their own safety and that it therefore falls on the employer to take ultimate
responsibility for devising as safe a system of work as the circumstances allow. Both of
the following cases concerned whether the employer took proper precautions to ensure
the use of 'barrier cream' to prevent the contraction of dermatitis through contact with
synthetic glue. The cases help to explain the principle, but they were decided before Bux
and you should not assume they would be decided the same way today.
Clifford v Charles Challen and Son Ltd Woods v Durable Suites Ltd [1953] 1 WLR
[1951] 1 KB 495 857

- Employer failed to keep protective - Barrier cream available on the

substances on the premises; and premises;

- Employer failed to ensure, via foreman,
that they were used (foreman did not
believe in using the barrier cream to
prevent dermatitis).
- Foreman had made known to the
claimant that he should use the cream;
and
- Claimant was provided with instructions
on when / how / why to use the cream.

Held: employer was negligent. Held: employer not negligent.

Note that the duty to provide a safe system of work may be altered / not apply in
temporary or exceptional conditions. In Mulcahy v Ministry of Defence [1996] QB 732, a
soldier who suffered some hearing loss during an encounter with Iraqi troops in the Gulf
War was found not to be entitled to compensation. The employer's duty of care did not
extend to cover soldiers in battle conditions.

Other obligations within the duty to take reasonable precaution to ensure an

employee's safety

Remember that the four obligations we have discussed above are merely four specific
examples of how the duty to take reasonable precaution to ensure an employee's safety
might apply. Other obligations which will not fall within any of these four obligations can
still fall within the duty. For example, there is growing case law detailing the obligation on
an employer not to provide an excessive workload for an employee. This obligation does
not fall clearly within the four categories set out above, but it is definitely part of the
employer's duty.
Other areas of law imposing duties on an employer in relation
to an employee
It is important to note that this element is concerned with the duty which an employer
owes based on common law.

Parliament has created statutory duties on employers as well. These operate in many of
the same areas as the common law duty. Any practitioner who specialises in litigating the
types of claims explained in this element will also need to be familiar with these statutory
duties - many claims will allege breaches of both common law and statutory duties.
Nonetheless, the statutory duties are independent of the common law duty. It is no
defence to a negligence claim for an employer to say they have complied with the
relevant statutory duty – even if the statutory duty has been met, a court will consider
separately whether the common law duty has been met (Bux, above).

In addition, a contract of employment between the employer and employee may

expressly impose duties on the employer, and at common law a term is also implied into
all contracts of employment that reasonable care will be taken by the employer to ensure
the health and safety of the employee.

Statutory duties and contract law are not considered in this element.
Breach, causation, remoteness and defences
Given that employers' primary liability is a particular application of the law of negligence,
the usual rules in relation to breach, causation, remoteness and defences apply. What
follows are some examples of how those rules apply in the context of employers' primary
liability, or of the difficulties to which those rules give rise. However, you should consider
all the rules that you have learned in these areas, not just those mentioned below.

Breach
Firstly, the duty on the employer is to take reasonable care (Latimer v AEC [1953] AC
643). It is not an absolute duty. Only a reasonable level of precaution need be taken ie an
objective test is used, based on the reasonable employer.
Secondly, an employer should take into account an employee's personal characteristics.
So, for example, in Paris v Stepney Borough Council [1951] AC 367, the employer knew
that the claimant had only one good eye. Despite this, no protective goggles were
provided, and he became blind when a piece of metal went into his good eye. The House
of Lords held that the defendant was liable. Although the risk of injury was small, the
consequences of the injury were significant. The defendant knew that the claimant had
only one eye. They should, therefore, have taken greater care to ensure he wore
protective goggles.
As Lord Simonds puts it:
"an employer owes a particular duty to each of his employees. His liability in tort
arises from his failure to take reasonable care in regard to the particular
employee and it is clear that, if so, all the circumstances relevant to that
employee must be taken into consideration"

Although an employer should take into account an employee's personal characteristics,

this does not change the fact that only reasonable steps need be taken. So, in Withers v
Perry Chain Co [1961] 1 WLR 1314, a duty of care owed to a worker who had extremely
sensitive skin was not breached when his employer failed to offer him alternative work
which did not involve contact with chemicals. The defendant employer had no such work
available and the claimant's injury could not have been avoided by any measure short of
dismissal.
Causation

As with other negligence actions, it is necessary to establish both factual and legal
causation. A common situation where factual causation is relevant concerns the provision
of safety equipment. If the employer fails to provide safety equipment, causation may not
be satisfied if he can show that, even if it had been provided, the employee would not
have used it. As such the 'but for' test is invoked (McWilliams v Sir William Arrol [1962] 1
WLR 295). Of course, in some situations mere provision of equipment may not be
enough to satisfy the duty. In more dangerous working environments it may be necessary
to give specific instruction about safety equipment or even to enforce its use. If this is the
case, arguments based around novus actus interveniens are more difficult to establish.

Remoteness (reasonably foreseeable damage)

As in all negligence cases, the remoteness of harm must be considered. Though most
cases involve physical injury, the courts have recognised mental harm such as stress
may be recoverable in some cases.
Defences

The usual general defences apply.

In relation to consent (volenti non fit injuria), if an employee consents to the risk then his
employer may have a good defence. However, judges are very sceptical of this defence
in the employment context (Bowater v Rowley Regis Corporation [1944] KB 476) and it
can only be successfully invoked in extreme circumstances where 'there was a genuine
full agreement, free from any kind of pressure, to assume the risk of loss' (ICI Ltd v
Shatwell [1965] AC 656 per Lord Pearce).

In relation to contributory negligence, this partial defence frequently succeeds in an

employment context where there is evidence that the claimant employee has failed to
take reasonable care of his/her own safety and this failure contributes to the loss
suffered. An example is Bux (above) in which the claimant was held 40 per cent to blame
for his injuries when he failed to wear safety goggles provided by his employer. Another
example is Clifford in which the claimant failed to use barrier cream that could have
helped avoid him contracting dermatitis – his damages were reduced by 50 per cent.
Summary in relation to employers' primary
liability
• This element addresses how the law of negligence applies between employer and
employee. In practice, statutory and contractual duties must also be considered.
• The law of negligence means that an employer owes a personal and non-delegable
duty to take reasonable precaution to ensure an employee's safety.
• As part of this, the employer will need to (this list is not exhaustive):
• Provide safe / competent employees;
• Provide safe / proper plant and equipment, and place of work – this extends to
safe third party premises and to providing protective equipment; and
• Provide a safe system of work – this extends to creating a safe system and also
to operating that system, including giving appropriate instruction and
supervision and, in some cases, ensuring compliance with measures that are
for an employee's own protection.
• The duty is a duty to take reasonable care – not an absolute duty.
• The usual rules of breach, causation, remoteness and defences apply. Consent is
very hard for an employer to establish as a defence.