When an employee is injured at work and seeks to make a personal injury claim the employee may sue under the tort/delict of negligence, or the tort/delict of breach of statutory duty.

Negligence

Negligence may be explained as careless conduct injuring another. For the injured party (claimant) to succeed in a negligence claim, he must prove:

1. That the defendant (usually the employer) owed him a duty of care;
2. That this duty was breached; and
3. That the claimant was injured as a result of the breach.

The Duty of Care

Prior to 1932 there was no generalised duty of care in negligence. The tort/delict was only applied in particular situations where the courts had decided that a duty should be owed, such as road accidents or dangerous goods.

In Donoghue v Stevenson (1932) Lord Atkin attempted to lay down a general principle which would cover all the circumstances where there could be liability for negligence. He said: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

The requirements that must now be satisfied before a duty of care is held to exist were established by Lord Bridge in Caparo Industries v Dickman (1990):

• foreseeability of the damage, i.e. whether a ‘reasonable person’ would have foreseen damage in the circumstances
• a sufficiently ‘proximate’ relationship between the parties (i.e. a neighbour relationship)
• it must be fair, just and reasonable to impose such a duty

Relationships that are sufficiently proximate to be deemed a neighbour relationship include:

• Employer to employees
• Employer to contractor and contractor’s employees
• Occupier to authorised visitors

The employers civil common law duty of care owed to its employees is to provide:

• A safe place of work,
• Safe plant and equipment
• Safe systems of work
• Training, supervision and reasonably competent co-workers

Breach of the Duty of Care

The duty of care is breached if the defendant has failed to exercise the reasonable care expected of a reasonable man in the circumstances.

Breach Caused the Injury

The claimant must prove, on the balance of probabilities, that the defendant’s breach of duty caused the harm and that the harm would not have occurred “but for” the negligence of the defendant.

Defences against claims of negligence

In the first instance defences against negligence rely on disproving any of the three steps outlined above, i.e.

• The defendant did not owe the claimant a duty of care
• The duty of care was not breached (the defendant had taken reasonable care / the loss was not foreseeable / it was an ‘act of God’)
• The breach of the duty of care did not give rise to the injury

In addition, the following may also be used as a defence:

• The injury was the sole fault of the employee
• The injury was the sole fault of a third party
• The proceedings were not brought within the specified time limit (see notes on the Limitations Act below).

Historically the defence of “volenti non fit injuria” (to a willing person no injury is done) was used on the basis that certain trades were inherently dangerous and that the workers needed to rely on their own skill to keep themselves safe. Since the 1940’s the courts have been generally unwilling to accept a “volenti” defence.

Contributory Negligence

Contributory negligence arises when the claimant’s own carelessness, or disregard for personal safety, contributes to the injury or loss which arises partly because of the claimants own fault and partly because of the fault of another (the defendant).

Damages recoverable in respect of the claim will be reduced to the extent the court thinks fair, having regard to the claimant’s share of responsibility for the damage.

Vicarious Liability

In general terms vicarious liability is a legal liability imposed on one person making them liable for tort/delicts committed by another.

With regard to a personal injury claim for an accident in the workplace if an employee, acting in the course of normal employment injures another employee the employer will be held vicariously liable for the losses incurred.

Tort of breach of statutory duty (TBSD) – New & Expectant Mothers

As an alternative to suing for negligence, new or expectant mothers can sue for damages caused by breaches of regulations 16 or 17 of the Management of Health and Safety at Work Regulations 1999.

TBSD may provide a more straightforward course of action as a statutory duty is likely to be more specific than the general duty of care.

Conditions to be met for breach of statutory duty

It is important to note that a breach of a statute is not sufficient on its own to prove the tort/delict of breach of statutory duty in a civil claim. The following conditions must be fulfilled:

• The statute must apply to the claimant, i.e. an employee can only sue if the statute applies to employees
• The statute must have been designed to prevent the type of injury incurred by the claimant
• The statute must have been breached. (A successful prosecution will aid the claimant’s case)
• The injury must have been caused by the breach of statute