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292 EMPLOYERS' LIABILITY

distinction between statutory and common law liability will become to some extent blurred.⁵⁸

8.7 The various regulations have been madę to implement the E.C. Direc-tives⁵⁹ in pursuance of this country's treaty obligations. As in any such case there must be a possibility of conflict between the local legislation and the Directives, even allowing for the elear principle that the local legislation is to be construed so far as is reasonably possible so as to gi_Ve effect to the Directive. This is a complex question which should be pursued elsewhere but there is a possibility (probably remote in prac-tice⁶⁰) that a claimant damnified by failure to implement one of the Directives may have an action against the Crown.⁶¹

Common Law

8.8 Since, as we have seen, the employer is now liable to his employee for an injury caused by a fellow employee, it might be thought that there is no longer value in retaining the concept of the employer's personal duty.⁶² The enormous majority of workers are in the service of corporate employ-ers who are in reality not capable of negligence, or anything else, so why not treat every case as one of vicarious liability? One answer to this may be that habits of thought acquired under the rule of common employment have survived its abolition, but in fact the concept of the personal duty continues to serve a useful purpose. In many cases it is obviousIy much morę convenient to say that a given State of affairs or a given event proc es a breach by the employer of his personal duty than to say that some employee must somehow have been negligent for that State of affairs to exist or for that event to come about. If a worker is injured because no one has taken the trouble to provide him with an obviously necessary safety device, it is sufficient and in generał satisfactory to say that the employer has not fulfilled his duty,⁶³ even if the employer is a company.⁶⁹ It is unnecessarily complicated to say that someone whose duty it was to provide the device in question, or someone whose duty it was to see that

^s"The Manuał Handling Regulations 1992 (S.l. 1992 No. 2793) may provide an e\ample because the Regulations themselves are (necessarily given their subject-matter) rather less precise than the others On the application of these Regulations see Koonjul r. Tliamt^link Healthcare Serriccs NHS Tru<t |20t^H’l P.I.Q.R 1*123 and King v. R..C.O. Supihnt Snvices Lid [20011 I.C.R. 608. At common law an employer certainly owes his workers a duty to give adequate Information about the operation of equipment Thi> is also required by the I*rovision and Use of Work Equipinent Regulations 1998. reg 9 (S.l. 1998 V’ 2306). The associated Codę of Practice, para. 88. spells this out by referring to factors (workers command of English, leaming or reading disabilities, experience) which would obviously be taken into account at common law.

* In fact the Management of Health and Safety at Work Regulations only implement part of Dirvctive 89/391. because the view has been taken that some of it had already been antidpated by the generał provisions of the Health and Safety at Work. etc, Act 1974 *° See Chns v. Highlands and Islands Enterfirite* [20011 I R.LR 336, O H

^M Francwich v. Italu 119951 I.C.R. 722. para. 7.9. above. As to employees of "emanations of the State" also Fosfrr v. British Ga< pic [1991J 2 A.C. 306.

See Sullami r. Gallaghcr & Craig 1960 S.LT. 70 at 76, per Lord Jusbce-Clerk Thomson.

'''See Cotwnonweallh v. lntmvigne (1982) 41 A.LR. 577 (accident at school).

^M cf. the criminal law. where there must be an act of an identifiable human being: Att-Gen s Referenci’ < V’ 2 of 1999) [2(XX)| 3 W.L.R. 195.

there was someone else to consider what safety devices were required and to provide them, must have been negligent and, therefore, that the gmployer is liable. Again, in many cases the only person involved in the geąuence of events leading up to the accident is the claimant himself and _vet his employer is liable, for example because the claimant should not have been left alone to do the job. In terms of vicarious liability this _would have to be explained by saying that some other employee had somehow failed in his duty or organising the work. It is simpler, and no less accurate, to say that the employer himself was in breach of his duty.⁶⁵

It is not only for its convenience, however, that the continued use of the employer's personal duty is justified. True vicarious liability exists only where a servant has committed a tort in the course of his employment,⁶⁶ but the employer's liability is not so restricted, so that there are cases in which the worker's injury is attributable to the negligence of an independent contractor and yet the employer is liable for breach of his personal duty to the worker.‘^>7 Moreover, though employer's liability is most commonly dealt with as a matter of tort, it is also a matter of contrach"⁸ and the worker's contract of service is madę with his employer, not with his fellow employees. Duties which exist by virtue of express or implied terms in the contract of employment must, therefore, be duties owed by the employer himself. Theoretically at least, the employer's vicarious liability for his servant's negligence, which is a liability in tort, must be distinct.⁶⁹

Naturę of employer's duty

We have already noticed Lord Wright's threefold division of the 8.9 employer's duty—"the provision of a competent staff of men, adequate materiał and a proper system and effective supervision'^,7°—and it is convenient to adhere approximately to this in an exposition of the law. In truth, however, there is but one duty, a duty to take reasonable care so to carry on operations as not to subject the persons employed to unneces-sary risk⁷¹:

™ McCafferh, v. Metmpolilan Police Reccftm |1977| 1 W.L.R. 1073 is .1 good examplc of this approach. In Australia it has been held that if a Minister is aware of a health hazard to workers the Crown may be in breach of duty evcn ihough the department responsible for the work has no such knowledge: Wesfem Australia v. Watson 119901 W.A.R. 2-18,

See Chap. 20, below. Potential problems with very smali companies where the directors are also the workers are illustrated by Nicol v. Allyachl Sjwrs Pty LU (1987) 75 A.L.R. 1.

See para. 8.16, below.

tfUthews v. Kuwail Bechtel Corp |1959| 2 Q.B. 57; ReiJ V. Rush & Tompkins |1989] 3 Ali t.R. 228; lohnstone b. Bloomshury H A 119921 Q.B. 333; Scalili v. Southern Health (1 Social Sernices Board |1992| I A.C. 294 and see para. 1.8, aboee. One emplover's tort liability may pass to his successor under the legislation goveming transfer of undertakings because it "arises in connection with" a contract of employment: Marli,, _v. Laneashirt C.C. 12000) I.C.R. 197.

^ Seejolowicz 119591 C.L.J. 163 at 164-165.

_?| Wilsons anJ Clydc Coal Co. t». English [19381 A.C. 57 at 78, para. 8.3. aboee.

'a^- risk of injury: it is not the employer's duty to insure his employee nor to adeise him to insuro himself: Rent v. Rush <r Tompkins, aboee.