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294 EMPLOYERS' UABIUTY

"In case there is any doubt about the meaning of 'unnecessary' | would ... take the duty as being a duty not to subject the employ_eę to any risk which the employer can reasonably foresee, or, to put jj slightly lower, not to subject the employee to any risk which the employer can reasonably foresee and which he can guard against by any measure, the convenience and expense of which are not entirely disproportionate to the risk involved."¹

The majority of the reported cases concem accidents, but that is only because in earlier times there was less awareness of the risks to health (as opposed to safety) presented by employment. The deveIopment of knowledge about matters like the effects of asbestos,² noise,³ vibration⁴ and the effects of repetitive manuał movements,⁵'’ coupled with a relaxa-tion of the former strict provisions on limitation of actions,⁶ has pro-duced litigation in recent years, sometimes on a very large scalę indeed. Furthermore, it is now recognised that the employer's duty may extend to the effect of working conditions⁷ on the mental health of his employees.⁸'¹

In many respects, therefore, the duty is similar to the duty of care in the tort of negligence generally, but expressed in terms appropriate to the relationship of employer and employee.⁹ The same generał duty will be owed in relationships which are not, strictly speaking within the category of contracts of employment but which are closely analogous, such as that between a police officer and a chief constable,¹⁰ though in that case the operational requirements of the job may mean that the coiitent of the duty is very different from that which is normally imposed. As we shall see, the duty of the employer cannot, as can an ordinary duty of care, always be discharged by the employment of an independent contractor,¹¹ but it

jg nevertheless a duty of care, not an absolute duty,*³ and it is for the claimant p_roVe its breach. If a worker cannot prove negligence, whether by direct evidence or with the aid of res ipsa loąuitur, an action jjased upon breach of the emplover's personal duty must fail. With this in ,nind we can consider the various branches of the employer's common j_aw duty to his workers.

(1)    Competent staff

The duty to take reasonable care to provide a competent staff is still 8.10 extant, but it is of comparative little importance sińce the abolition of common employment. If, however, an employer engages a person with insufficient experience or training for a particular job and as a result a worker is injured, it may well be that there is a breach of this branch of the employer's duty.^M

In one situation of a slightly different kind, however, this branch of the emp!oyer's liability retains its importance. If one employee is injured by the violent horseplay of another, or is actually assaulted by him, it is unlikely that the employer will be liable vicariously, for the horseplay or the attack will not have been done in the course of the employment.⁸⁵ It may be, however, that the employer should have known of his employ-ee's playful or vicious propensities and have taken steps to prevent them from resulting in injury to another. In that case he may be liable for breach of his personal duty.⁸*

(2)    Adeąuate plant and eąuipment

The employer must take reasonable care to provide his workers with 8.11 the necessary plant and equipment, and is therefore liable if an accident is caused through the absence of some item of equipment which was obviously necessary or which a reasonable employer would recognise to be needed.⁸⁷ He must also take reasonable care to maintain the plant and

” Winter v. Cardiff R D C [1950] 1 Ali E R 819 at 823. prr Lord MacDermott; Darie v. New Merton Board Mills [1959| A.C. 604.

**See Butler v. Fife Caal Co. [19121 A.C. 149. So regarded. a case of this kind would not give rise to the question whether negligence is to be judged subjectively or objectively. If a man who has never previousły operated a crane is put in charge of one and an accident results, despiłe the exeicise by him of all the care of which he is, subjeetivelv, capable, there might be difficulties in saying th.it the employer is \icariously liable for his negligence. In a question whether the employer is personally in breach of his duty no such difticulty exists.

0'Reilly v. National Raił and Tramway Appliances Ud (1966) 1 All E.R. 499. cl. Hanison v. Michel w Tyre Ce. Lid (19851 I.C.R. 6%. doubted in Aldred v. Nacano (1987) I.R.LR. 292.

** Hudson v. Ridge Manufacturing Co. (1957J 2 Q.B. 348; Veness v. Dyson Bell & Co. (1963) C.L.Y. 2691. cf. Smith v. Cmssley Bros (1931) 95 S.J. 633; Coddington v. In temat umai Harrester Co. ofGreat Britain Ud i 1969) 6 K.I.R 146. The principle may extend to victimisation or bullying where there is sufficient injury; ^ Wfl/en; v. M.P.C. (2000) 1 W.L.R. 1607.

Williams v. Birmingham Bat tery and Metal Co. (1892) 2 Q.B. 338; Loreil v. BI umieli* Cr Crompton & Co. 11944) J K.B. 502; Bess v. Associated Partiami Cement Man ufać tu nr* l.td (1964| 1 W.L.R. 768. It is not always necessary’, however, for the employer to adopt the latest improvement$: Toronto Power Co v. Pasktoan 11915) A.C. 734. per Sir Arthur Channell. See also O Connor r. B.T.C. (1958) 1 W.LR 346

1

Harris v. Brights Asphalt Contractors [1953] 1 Q.B. 617 at 626, per Slade J What is necessary is related to the job. It may be legitimate to ask police officers or firemen to take risks which could not be expected of other workers: Mullaney v. C.C. West Mkttands [20011 EWCA Civ 700.

2

See, e.g. Jamesem v. C.E.G.B. [20001 1 A C. 455.

3

⁴ See, e.g. Thompson r. Smith > SJuprepairers (North Shictds) Lut 119841 Q.B. 405.

4

See. e.g. Bomnan v. Hartami & Wolff [1992] I.R.LR. 349. However, "\ibration white finger" or "Rey* naud’$ phenomenon" figured in the reportsas far back as 1946: Fitzsnmnons r. Ford Motor Co. (19461 1 Ali E.R. 429 (workmen's compensation).

5

^7ł* 'Repetitive strain injury". See, e.g. Pickford v. t.C.t. pic (1998J 1 W.LR. 1189.

6

"See para. 26.17, below.

7

** u? long-term conditions, not merely in respect of "nervous shtKk" caused by being threatened by an acrident.

8

^v Hat ton v. Suthcrland [20021 EWCA Civ 76; Walker v. Northumberlmid C.C. (19951 I.C.R 702; Petck Customs and Excise Commissioners [19931 I.C.R. 789; Cross v. Highlands and Islands Enterprises I-¹*'¹1 I.R.L R. 336. See para. 5.50, above.

9

-'The special relationship of employer and worker may impose positive duties of assistance or prot^" tion: thus, an employer may be obliged to provide medical assistance in cases of illness or injur\ in no way attributable to him (Kasapis v. Utimos [19591 2 Lloyd's Rep, 378) or to wam his workers to b⁴* medically examined if he leams that past working conditions, which were then regarded as prope^f have caused a danger of disease (Wright v. Dnnlop Rubber Co. (1971) 11 K.l.R. 311). As to the employer ' duty in respect of giving a referencc, see Spring v. Guardian Assurance (19951 2 A.C 296, para. U " below.

10

^M Mul/ancu v. C.C. West Midlands [20011 EWCA Civ 700; Walers r. M.P.C. |2000| 1 W.LR. 1607.

11

^See para. 8.16, below.