Analysis of Law of Negligence Cases - Case Study Example

Law of Negligence PART I Negligence The success of an action of negligence depends on establishing that a duty of care was owed to employees by theiremployer, which had been violated and had consequently caused damage to be suffered by the employee. In Wilson & Clyde Coal Co v. English (1938), Lord Wright opined that the employer had to provide proficient staff, satisfactory material, and an appropriate system of employment with effective supervision (Hardy & Upex, 2006. Pp. 110 – 111). Protection is also made available against the acts or omissions of personnel whose duty is to safeguard others, by the law of negligence. Any violation of a duty of care to prevent a predictable risk results in negligence. If a visitor to the workplace or an employee is injured by another employee, due to the work that the latter is performing, then vicarious liability is attributed to the employer for the harm caused. Furthermore, any violation, in respect of the standards of a profession constitutes professional negligence (Lewis, March 8, 2008). Considerable importance is attached to the legal principles of forseeability and causation, in actions relating to negligence. The onus of establishing that the injury to the employee had resulted from the work place environment; and that it was reasonable to expect that the employer could have anticipated that such injury would take place, vests with the claimant. It is essential to establish in such claims that the violation of duty by the employer resulted in or contributed to the injury. It is the clear responsibility of the employee to prove that his employer was accountable for the injury caused to him, in claims for negligence. For instance, in Lochgelly Iron & Coal Co. Ltd v. M’Mullan, the court opined that from the perspective of a stringent legal analysis, negligence entails a duty of care, its breach and the resulting injury to the employee to whom such duty was owed (Stranks, 2005. P. 158). It is the usual practice for employees injured at work to try to establish that their employer was at fault. To this end, recourse is invariably taken to establish either common law negligence or violation of statutory duty. Over a period of time, the courts developed the common law of negligence; and this precept enjoins upon employers to take such realistic care in the work place, as will preclude the occurrence of injuries to employees and visitors to that particular work place (Lockie & Walker, 2000. P. 79). Section 2 of the Health and Safety at Work etc., Act 1974, requires employers to make reasonably certain that their employees’ health, safety and welfare are not jeopardised at the work place. Specifically, this act requires the establishment of equipment and work systems that do not pose a threat to employees. In addition, the work place should be safe to work in and should have adequate access and egress. Moreover, the working environment should not only have sufficient safety, but it should also enshrine the required welfare facilities. Furthermore, the employer’s safety policy should be in writing and if there are trade unions, then there should be adequate consultation on these matters with them (Hughes & Ferrett, 2005. P. 11). The duties of employers towards individuals, other than employees, who are influenced by the formers undertakings, are set out in section 3 of the Health and Safety at Work etc., Act 1974. This section requires employers to protect from injury, persons who are not their employees, but who are all the same affected by their undertakings. Customer, students, contractors and patients are some examples of individuals who fall under the ambit of this section (Health and Safety at Work etc Act , 1974). In Walker v. Northumberland county Council the legal implications of stress and its associated phenomenon, which resulted in personal injuries were examined. In this case, the judge opined that the employer had a duty of care that could be extended from physical injury to the psychological trauma of an employee. Furthermore, the employer has to provide a reasonable level of safety in the workplace. The employer is also expected to take all reasonable steps to protect an employee from workplace dangers (Glendon, Clarke, & McKenna, 2006. P. 228). An employee who is subjected to workplace victimisation, harassment or bullying can make a negligence claim against the employer. If the employee had been compelled to resign the employment, on account of such bullying, then such an employee can claim constructive dismissal. However, before doing so, employees should in the normal course of events, exhaust all the prevalent statutory procedures, in respect of grievances, bullying and harassment at the workplace, and endeavour to arrive at an internal rapprochement. Moreover, constructive dismissal can be only claimed by employees who have served for at least a year with that particular employer. Furthermore, it is in the best interests of the employees to resolve the dispute through other means, because establishing constructive dismissal is a daunting task (Cochrane, 2007 ). In Hudson v. Ridge the employer was deemed to be negligent as he had continued the employment of a worker who had persistently indulged in inappropriate behaviour, leading to the injury of a co worker (Hudson v Ridge Manufacturing , 1957). Hence, Ricky Gervais & Co Ltd, is guilty of being negligent, as it had not taken any appropriate measures to prevent a frequently misbehaving employee from indulging in inappropriate behaviour. Moreover, this employee’s misconduct had resulted in the loss of eyesight of a fellow worker in that very same company. PART II Case Scenario In the process of ascertaining whether there exists a duty of care, it is usual for the courts to take into account several issues. These issues are whether the harm caused could have been anticipated; the closeness of the employee – employer relation; and whether it is equitable for it to impose a duty of care on the employer, in order to place the employee at a distinct advantage. As such, the employer is vicariously liable for the acts of his employees that are performed in the normal course of business. Hence, an act of work place bullying, if unchecked or prevented by the employer, renders the employer vicariously liable for that act of bullying or harassment (Lee & Koh, March 2008). For initiating an action of negligence, it is essential to establish that the employer owed a duty of care towards the employee. In the present problem, the employer Ricky Gervais and Co owed a duty of care towards its employees for providing a safe, comfortable and ambient working environment. However, the company had not made any such arrangements. Hence, the duty of care had been violated. For instance, in the reception area, the carpet was in a damaged condition and had not been properly affixed to the floor. This improperly fixed carpet was capable of tripping the people stepping on it and thereby causing them serious injury. Moreover, the furniture in the office did not provide adequate support. Specifically the chairs did not provide proper support to the employees sitting on them. Furthermore, the staff of this company had not been properly supervised. For example, one of the employees was in the habit of indulging dangerous pranks aimed at his co workers. He had been merely cautioned on several previous occasions, and no deterrent action had been taken against him. This encouraged him to propel a pair of scissors through his catapult, at a co worker. This act of unprovoked violence caused the victim to lose one of his eyes. The impairment of his vision, proved to be highly detrimental. This hapless employee had to leave his present employment and take up a much lesser paying job. In addition, he had to forsake his hobby of water colour painting and he also had to stop driving his car. Even at this stage the company’s management did not take any action against this errant employee. The employer is responsible for the acts of his employees at the workplace. Consequently, Ricky Gervais Co Ltd is responsible for the acts of harassment committed by its employees at the workplace. As such, the employer has to ensure that no act of bullying, discrimination or harassment occurs at the workplace. This was not done by the company. Hence, breach of duty of care is established against the employer. In Majrowski v. Guy’s and St. Thomas’s NHS Trust, the House of Lords held that the harm caused by employees, rendered the employer liable, even in the absence of a claim against the employee who had caused the harm (Majrowski v. Guys and St. Thomass NHS Trust, 2006). In Maher v Jabil, the plaintiff claimed damages for stress resulting from over work. The court opined that the plaintiff had suffered personal injury due to such stress at his workplace. The court held that the employer is expected to safeguard his employees from workplace stress including bullying and harassment. The employer had to anticipate such risk and take adequate preventive measures (Maher v Jabil Global Services Ltd, 2005). In Quigley v Complex Tooling and Moulding, the Irish High Court held that the employer was responsible for the stress experienced by the plaintiff Quigley by workplace bullying. The Court had awarded a compensation of €75,000 to the plaintiff towards the psychological injury sustained by him, and for the failure of the employer to prevent bullying in the workplace (Quigley v Complex Tooling & Moulding , 2005 ). In McGrath v Trintech, the plaintiff claimed damages for injuries caused to his person, as a result of occupational stress. However the court turned down his petition stating that the Safety, Health & Welfare at Work Act only covers psychiatric health and psychological injuries (McGrath v. Trintech , 2004). In Fairchild v. Glenhaven Funeral Services Ltd (2002), their Lordships provided a path breaking judgement. In this ruling they permitted the claimants to obtain damages for having acquired mesothelioma, due to exposure to asbestos, from their erstwhile employers. Such exposure had been on account negligence on the part of the latter (Fairchild v. Glenhaven Funeral Services Ltd, 2002). The company had violated its duty of providing a safe and suitable working environment to its employees. This poses a grave danger to the health of the employees of this company, who could possibly injure themselves by using the provided furniture and by working in that inhospitable environment. There was no control on the behaviour of the employees and one of these employees was in the habit of endangering his colleagues at the workplace. The employer’s laxity in dealing with this inappropriate behaviour emboldened the latter to blind his co employee, ostensibly on the pretext of playing a practical joke on the latter. Hence, a grave injury was caused to an employee due to the breach of duty of care by the employer. The reference report given by the former employer was misrepresentative of the facts. It had been prepared without due care and in a grossly negligent manner. The former employer is liable for any loss borne by the employee on account of this negligent reference. It was held in Spring v. Guardian Royal Exchange that in the absence of a proviso to the contrary, it was not mandatory to furnish an employee with a reference, after the termination of employment. However, their Lordships categorically stated that any reference provided had to be accurate regarding its contents and should be issued after exercising due care. Moreover, a general duty of care in negligence arises, whenever such a reference is provided to an employee. Such reference though not comprehensive, should not create an impression that can be construed as inequitable and misleading (Spring v. Guardian Royal Exchange, 1994 ). Geoff can file a case of negligence against his employer for redressal of losses caused to him by his co employee in the workplace. In addition, the employer is liable under section 2 of the HASWA, for having failed to provide a safe and congenial working environment. List of References Cochrane, L. (2007 , November 15 ). Working Brief: No room for workplace bully. Belfast Telegraph . Fairchild v. Glenhaven Funeral Services Ltd, UKHL 22 (House of Lords June 20 , 2002). Glendon, A. I., Clarke, S., & McKenna, E. F. (2006. P. 228). Human Safety And Risk Management. CRC Press. Hardy, S. T., & Upex, R. (2006. Pp. 110 – 111). Employment Law for Business Students. SAGE. Health and Safety at Work etc Act . (1974, July 31). 1 of 102 DOCUMENTS: UK Legislation (Health and Safety)/UK Parliament Statutes/Health and Safety at Work etc Act 1974 (1974 c 37) . Westminster, London. Hudson v Ridge Manufacturing , 2 QB 348 (CA) (Queens Bench 1957). Hughes, P., & Ferrett, E. (2005. P. 11). Introduction to Health and Safety at Work: The Handbook for the NEBOSH National General Certificate. Butterworth-Heinemann. Lee, S. M., & Koh, D. (March 2008). Fitness to Work: Legal Pitfalls. Annals Academy of Medicine , 237. Lewis, J. (March 8, 2008). Whose duty? Occupational Health . Lockie, C., & Walker, E. (2000. P. 79). Travel Medicine and Migrant Health. Elsevier Health Sciences. Maher v Jabil Global Services Ltd, High Ct (May 12, 2005). Majrowski v. Guys and St. Thomass NHS Trust, [2006] UKHL 34 (House of Lords July 12 , 2006). McGrath v. Trintech , Unreported High Court (October 29, 2004). Quigley v Complex Tooling & Moulding , IEHC 71 (2005 ). Spring v. Guardian Royal Exchange, 3 All ER 129 (House of Lords July 7, 1994 ). Stranks, J. W. (2005. P. 158). Stress at Work. Butterworth – Heinemann. Read More