Statutory duty against employer - Essay Example

Statutory duty against employer Problem A: JACK Jack can bring an action of tort either under the broad concept of negligence or for breach of statutory duty against his employer. In Thames Trains v HSE,1 the Court did not strike a trial court ruling finding a case of breach of duty despite determining that the statute in issue did not give rise to a civil law action of breach because on the basis of the facts presented, a parallel duty of care may arise. Thus, it is a common practice to plead breach of statutory duty with negligence.2 An employer has duties towards his employees that are non-delegable. The case of Wilsons & Clyde Coal Company v English3 established the implied basic duties that employers owe their employees, the breach of which entitles the latter to award of damages in an action for tort on the broad ground of negligence. These duties are: selection of competent staff that had the benefit of proper training; proper and suitable plant; proper and fit place of work, and; safe system of work. The aforecited duties are deemed primary liability of employers. In McDermid v Nash Dredging and Reclamation Co Ltd,4 the Court awarded compensation to the claimant, employee of the therein defendant, who was injured whilst performing his functions as a deckhand on a tug, owned by a Dutch company working in the dredging operations with the defendant company. The tug captain, who was employed by the Dutch company, carelessly mishandled the tug movement resulting in the injuries sustained by the claimant. The Court sided with the claimant notwithstanding that the injuries was caused by the tug captain, who was not under its employ, on the ground that the responsibility to keep a safe system of work was its personal responsibility and therefore, non-delegable. An action for breach of statutory duties necessarily requires that the employer has breached a provision of a statute or law. An equally important consideration in this action is the determination that the statute itself contemplates granting the claimant a right to a civil action. Thus, in one of the earliest of cases involving breach of statute, Grove v Lord Wimbourne,5 the Court held that if the criminal statute, in this case the Factory and Workshop Act 1878, is found to be intended to provide civil remedy, then that statute can be made applicable to action for injuries sustained in the employment. However, the fact that many of these statutes do not actually specifically state whether private law is applicable or not makes the breach of statutory duty particularly difficult to pursue. In X and others (minors) v Bedforshire County Council,6 a controversial HL decision which was subsequently criticised by the ECHR, the Court held, inter alia, that private law cause of action can arise if it is shown that the statute protects a limited class of citizens and Parliament intended to confer to them such a right of action. A breach of statute case may be employed in Jack’s case on the basis of The Provision and Use of Work Equipment Regulations 1998, regulations, which the Secretary of State issued under the power conferred on him by the Health and Safety at Work Act 1974. Said regulations provide, inter alia, that equipment that carries specific risks shall be assigned for use only by specific persons who had prior training for its use. More significantly, the statute provides that it is the responsibility of the employer to ensure that dangerous parts of any machine used in the workplace should not have any access to any of the parts of the body of the worker, which could be done either by installing fixed guards or other protective parts.7 Although there is no express conferment of the right to bring an action of civil liability, there is a presumption that such will lie as was held in Thornton v Kirklees Metropolitan Borough Council.8 The Court held in that case that where the statute imposes a duty on an entity for the purpose of benefiting a specific class of persons, but does not expressly provide a form of relief, a civil action for damages is presumed to be available to the claimant. Problem B: CLAUDETTE Like that of Jack’s, Claudette’s case may be brought on a simultaneous plea for negligence and breach of statutory duty. At stake in her case is The Workplace (Health, Safety and Welfare) Regulations 1992, also an offspring of the Health and Safety of Work Act 1974. The Health and Safety of Work Act 1974 provides, inter alia, that factories, as defined under The Factories Act 1961,9 are covered by it. The present problem refers to the workplace as a factory and is, therefore, specifically covered by the aforecited regulations. Section 12 thereof particularly obliged the employer to prevent the scenario, amongst others, of falling objects that can cause harm and injury to his workers from occurring in the workplace. Claudette can, therefore, resort to an action for breach of duty under the aforecited regulations even if the latter is silent on the availability of this particular relief. The basis is that the regulations, issued under the authority of a statute (viz. Health and Safety Act 1974), contemplates protection of a specified class of citizens, viz. employees, and therefore, is presumed to provide civil liability relief for breach of statute. Albeit breach of statutory duty is a little bit difficult because of the reasons already mentioned, such as the difficulty of proving Parliament’s intent, which entails the use of statutory construction, it has the advantage of the reverse burden of proof as exemplified by s 40 of the Health and Safety at Work Act 1974. The implication is that once the duty under a statute is established, the burden of proof shifts to the employer to prove that he has complied with it. Davis v Health and Safety Executive10 justified this reversed burden of proof as “necessary and compassionate and was therefore, not incompatible with Art 6 of the Convention on Human Rights.”11 Despite the regulations’ silence on civil liability relief, bringing an action for breach of statute against Sprockets Ltd will likely succeed considering the holding in cases like Pickering v Liverpool Daily Post and Echo Newspapers plc.12 In that case, the Court held that the nature of the damage suffered by the claimant in a breach of statutory duty must be one of those of which the law awards damages such as personal injury, injury to property or economic loss, which is one of the ways of determining whether the statute has civil liability implications for the defendant. It is evident that in this case, Claudette sustained physical injuries as a result of the failure of her employer to secure the safety of the workplace from objects that may fall and injure the workers and the provisions of the statute themselves evidently point to the protection of workers from the kind of injuries to which the law normally awards damages. Thus, in Cullen v Chief Constable of the Royal Ulster Constabulary,13 Lord Hutton opines that “damages are awarded for a breach of statutory duty in order to compensate a person for loss or damage suffered by him by reason of the breach of that duty.”14 Claudette can likewise pursue an action for damages on the basis of the Occupier’s Liability Act 1957, since the employer can be deemed an occupier, simply referred to therein as one who occupies or controls certain premises.15 In Silk v Commissioner of Police for the Metropolis16 plaintiff, a police officer was awarded damages after he fell and severely injured himself in the police parking lot, which had an oil slick on the floor, on the ground of said law. Problem C: JASBIR Since the economic loss suffered by Jasbir did not arise as a consequence of any physical injury or property damage, it can be referred to as a pure economic loss. It is unlikely however, that Jasbir can bring a case of tort on the ground of pure economic loss for negligent statements against Arthur. First, it needs to be established that Arthur owes Jasbir a duty of care and the case of Caparo Industries v Dickman17 is the authority on this. The case established the three-fold test of reasonable foreseeability of harm, proximity of relationship between claimant and defendant and fairness, justice and reasonableness in imposing liability upon the defendant. In Hedley Byrne & Co Ltd Heller & Partners,18 the Court held that damages for pure economic loss due to negligent misstatements are recoverable without resulting to contract law on the ground of negligent misstatement. In this case, an advertising firm consulted a client’s bank, coursed through their own bank, on the stability of a client that had just made a big order with it. The defendant bank put in favourable recommendations for the client, which subsequently turned to be insolvent, accompanied by a caveat that it will not take any responsibility whatsoever. The HL ruled that there was sufficient proximate relation between the parties and therefore, duty of care is created. However, the disclaimer the defendant bank company attached to the information freed them from such liability. In the present case, however, a special relationship between the parties cannot be established because Arthur did not voluntarily assume responsibility for his statement towards Jasbir, an element necessary to establish special relationship in accordance with the case of Henderson v Merrett Syndicates.19 It is axiomatic that the defendant must say or do things to qualify an assumption of responsibility. In the present case, Arthur admitted that he has heard of Chancer’s reliability but did not personally know of it or was familiar with its company structure. He even asked Jasbir to come to the bank and talk to a colleague, who is an investment specialist, implying that he did not consider himself to be one. Evidently, by his words, Arthur did not assume responsibility over the information he has communicated to Jasbir and the latter’s possible reliance on it and therefore, a duty of care cannot be established in his case. A failure to establish that a special relationship, at least, governs between him and Arthur, makes it obligatory upon Jasbir to establish that imposing liability upon Arthur for his pecuniary loss is fair, just and reasonable as was the dictum held in Williams v Natural Life Health Foods Limited.20 Obviously, imposing liability on Arthur who did disavowed expertise on the matter is not just and reasonable. References: Caparo Industries v Dickman [1990] 2 AC 605. Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39. Employers Liability (Defective Equipment Act) 1969. Grove v Lord Wimbourne [1898] 2 QB 402. Harpwood, V. Modern Tort Law, 7th Edition. Taylor & Francis, 2008. Health and Safety of Work Act 1974. Hedley Byrne & Co Ltd Heller & Partners [1964] AC 465. Henderson v Merrett Syndicates [1995] AC 145. McDermid v Nash Dredging and Reclamation Co Ltd [1987] AC906. Murphy v Brentwood District Council [1991] 1 AC 398. Occupier’s Liability Act 1957 [1999] unreported Clerkenwell CC (Judge Marr-Johnson). Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370. Thames Trains v HSE [2003] EWCA Civ 720. The Factories Act 1961. The Provision and Use of Work Equipment Regulations 1998 The Workplace (Health, Safety and Welfare) Regulations 1992. Thornton v Kirklees Metropolitan Borough Council [1979] QB 626. Williams v Natural Life Health Foods Limited [1998] 1 WLR 830. Wilson and Clyde Coal Company v English [1937] 3 All ER 628. Woodman, G. & Klippel, D. Risk and the Law. Taylor & Francis, 2008. X and others (minors) v Bedforshire County Council [1995] 3 All ER 353. Read More