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Consent
the defence of consent is not available to an employer who is in breach of his own statutory duty. this is a matter of public policy (Wheeler v. New Merton Board Mills
Ltd [1933] 2 Kb 669 (CA)).
However, consent is available where an employee sues an employer for being vicariously liable for a colleague’s breach of statutory duty (ICI Ltd v. Shatwell [1965] AC 656 (Hl)).
With the exceptions above in mind, the defence of consent will be generally available where there has been a breach of statutory duty (lord reid in ICI Ltd v. Shatwell).
Contributory negligence
Contributory negligence is generally available. However, in relation to factory workers, the courts are more reluctant to find contributory negligence against an employee (Caswell v. Powell Duffryn Associated Collieries Ltd [1940] AC 152 (Hl)).
rEvISIon noTE
Contributory negligence and volenti non fit injuria (consent) are general defences which are available to most torts in addition to breach of statutory duty. you will find a more detailed outline of the elements of these defences and their operation in Chapter 13.
Chapter summary
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: putting it all together
test yourself
Can you tick all the points from the
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revision checklist at the beginning ofthis chapter?
CHAptEr summAry
99
Attempt the
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sample question from the beginning of this chapter using theanswer guidelines below. Go to the
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companion website to access more revision support online,including interactive quizzes, sample questions with answer guidelines, ‘you be the marker’ exercises, flashcards and podcasts you can download.
Answer guidelines
see the problem question at the start of the chapter. A diagram illustrating how to structure your answer is available on the companion website.
Approaching the question
this is a problem question that raises a number of potential claims against Fruitinc by Christine. you, therefore, should begin by thinking about what those claims might be so that you can structure your answer accordingly. Don’t be tempted to start immediately – a question which has multiple claims requires you to identify them all, so a few moments planning will help prevent you missing one altogether, especially in the pressure of an exam.
important points to include
there are three potential claims against Fruitinc. you should deal with them in turn.
Common law negligence – Fruitinc has a common law duty to take reasonable
care of its employees. it covers four key elements: safe premises/workplace; safe plant, materials and equipment; safe system of work; competent colleagues (Wilsons & Clyde Coal ). Consider each of these elements in turn.
safe workplace? more concerned with building. probably does not apply here
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(Latimer v. AEC Ltd ).
safe plant? Again, the machine was not unsafe
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■ per se (Knowles v. Liverpool
County Council ).
safe system of work? Fruitinc has a duty to ensure that the safety measures
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provided were used (Speed v. Thomas Swift & Co Ltd ; Bux v. Slough Metals) – probable breach here.
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5 EmployErs’ liAbility
Competent staff? David was incompetent in not requiring Christine to use the
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guard.
Fruitinc appears to be in breach of its common law duty of care. Causation is established via the ‘but for’ test. Christine’s injury is a reasonably foreseeable type and therefore not too remote.
Defences? Consent may work since Christine deliberately removed the
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guard. if this fails, then contributory negligence is likely to succeed (see Chapter 13).
Breach of statutory duty – will be allowed if the Factories Act 1961 allows a civil
claim. this will be established by reading the Act. if it is silent, as most are, then the next step is looking to see if there is decided case law on the issue. if none, then the court will look at the Act as a whole and decide (Cutler v. Wandsworth
Stadium). this Act appears to protect a limited class of individuals and seems
to provide no remedy for its breach. the courts also tend to allow civil claims for breaches of health and safety legislations. it is likely that the Act will allow a claim in tort for a breach of section 14(1).
is Christine a member of the protected class? she is a factory worker and is
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therefore protected (Hartley v. Mayoh & Co).
Has there been a breach of duty by Fruitinc? section 14(1) imposes strict
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liability; hence Fruitinc is in breach (John Summers & Sons Ltd v. Frost ). Has Christine suffered the type of injury the Act was designed to prevent?
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Clearly! (Gorris v. Scott ).
is there a causal link? but for Fruitinc’s breach, Christine would not have been
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scalped.
Defences? (see Chapter 13). Consent will not be available to Fruitinc for a
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breach of its own statutory duty (Wheeler v. New Merton Board Mills Ltd ). Contributory negligence is likely to succeed as Christine seemed to recklessly disregard her own safety (but see Caswell v. Powell Duffryn Associated
Collieries Ltd ).
vicarious liability – (see Chapter 4). Fruitinc may be vicariously liable for
David’s negligence committed in the course of employment which caused Christine’s injury of a reasonable foreseeable type. Consent will again be unlikely to succeed, but contributory negligence will be applicable as in the other heads of claim.
CHAptEr summAry
101
remember to cover all three potential claims. Don’t be misled by the fact that the problem states a statute into only covering breach of statutory duty. take each of the claims in turn and analyse them methodically. remember to relate each point back to the facts and provide supporting case authority for each point of law you make.
3
Make your answer stand out
Allen, s. (2009) ‘the complexity of employers’ liability law: interpretation and proving fault’, 4 Journal of Personal Injury Law 243.
tomkins, n. (2007) ‘misleading reports?’, 2 Journal of Personal Injury Law 150.
reAd to imPress
notes
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5 EmployErs’ liAbility
revision checklist
Essential points you should know:
the meaning of key terms such as occupier, visitor, premises and trespasser
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the scope of the duty established under the Occupiers’ liability Act 1957
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the implications of the Occupiers’ liability Act 1984 in relation to liability for
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trespassers
the defences available to an occupier and the ability to limit or exclude
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liability
liability for dangers created by independent contractors on land occupied by
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others6
occupiers’
liability
M06_FINC9810_03_SE_C06.indd 103 17/6/10 08:02:30Occupiers’ Liability Act 1957
Occupiers’ Liability Act 1984
Who is an occupier? What are premises?
Who is a visitor?
Those with express permission Those with implied permission Those with a right to enter Duty of care Children
Skilled visitors Warning signs
Liability for independent contractors
Defences
Who is a trespasser? Duty of care Signs and defences
Occupiers’ liability
Topic map
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A printable version of this topic map is available from www.pearsoned.co.uk/lawexpress 104
6 Occupiers’ liAbility