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298 EMPLOYHRS- UABILITY

"The master's own premises are under his corttrol: if they are dan-gerously in need of repair he can and must rectify the fault at once if he is to escape the censure of negligence. But if a master sends his plumber to mend a leak in a private house, no one could hołd hiin negligent for not visiting the house himself to see if the carpet in the hall creates a trap. Between these extremes are countless possible examples in which the court may have to decide the question of fact: Did the master take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk?... So viewed, the question whether the master was in control of the premises ceases to be a matter of technicality and becomes merely one of the ingredients, albeit a very important one, in a consideration of the question of fact whether, in all the circumstances, the master took reasonable care."⁸

Even if the employer is not responsible for defects in someone else's premises under this heading, he may be under a duty to give advice, instructions or orders about commonly encountered hazards (a matter which would fali under the next heading). Thus it has been held that in modem conditions⁹ the employer of a window cleaner should place an embargo on cleaning upper floor Windows by standing on the sili unless there are anchorage points for safety harness.¹⁰

(4) Safe system of working

8.13 This, the most frequently invoked branch of the employer's duty, is also the most difficult to define, but it includes:

"... the physical lay-out of the job—the setting of the stage, so to speak—the sequence in which the work is to be carried out, the provision in proper cases of wamings and notices and the issue of special instructions. A system may be adequate for the whole course of the job or it may have to be modified or improved to meet the circumstances which arise; such modifications or improvements ... equally fali under the head of system."¹¹

The employer's duty in respect of the system of working is most evident where the work is of regular or routine naturę, but its application is not limited to such cases. The concept is a flexible one, which can be applied as much to a police operation as to work in a factory.¹² Even where a single act of a particular kind is to be performed, the employer

" Wilson v. Tyneside Window Cleaning Co. (19381 2 Q.B. 110 at 121-122, per Pearce L.J.; Kilbride v. Scott ish & Newcastle Breweries 1986 S.L.T. 642.

* cf. General Cleaning Cont rac tors l.td u. Chnstmas (19531 A.C. 180, where the HL was not prcpared to go so far.

¹⁰    King v. Smith (19951I.C.R. 339. Weir, Casebook on Tort <9th ed.), p. 145.

¹¹    Speed V. Thomas Swift & Co. (19431 K.B. 357 at 563-564, per Lord Greene <M.R. For the relevance of generał practice in industry, see para. 5.56, above.

¹¹ Militarny v. C.C. West Midlands (20011 EWCA Civ 700.

jpay have an obligation to organise the work, for example if it is of a complicated or unusual kind or of if a large number of people are jnvolved.^t3 In each case it is a question of fact whether a reasonable _einployer would have left it to his workers to decide for themselves how the job should be done.^1-1

In devising a system of working the employer must take into account the fact that workers are often heedless of their own safety,¹⁵ and this has two consequences. First, the system should so far as possible minimise the danger of a worker's own foreseeable carelessness. Secondly, the employer must also exercise reasonable care to see that his system of working is complied with by those for whose safety it is instituted and that the necessary safety precautions are observed.^1t> Lord Denning said on one case,¹⁷ however, (and others have agreed¹⁸) that this is not a proposition of law but a proposition of good sense, so that proof that a worker was never actually instructed to wear necessary protective cloth-ing is not of itself proof of negligence. As a practical matter, however, now that there is, for most employments, an unqualified statutory duty to take all reasonable steps to ensure that any protective equipment is properly used,’⁹ any failure to instruct (and to check) is likely to lead to liability, subject to contributory negligence.²⁰ The employer's personal duty is not confined to devising a safe system, it extends to its implementation, so that the employer is liable even if the system itself is safe but A fails to follow it and causes injury to B.²¹

Scope of duty

The employer's duty of care concems not only the actual work of his 8.14 employees, but also all such acts as are normally and reasonably inci-dental to a day's work,²² and the mere fact that an employee disobeys an

^,J Winter v. Cardiff R.D.C. 11950] VV.NI. 193 at 200, per Lord Reid ; Byers v. Hani Wright son & Co. (19611 1 W.LR. 961; Boyle u. Kodak Lid [1969J 1 W.L.R 661. The fact that an untrained young man with indifferent English is a member of a team may cali for special precautions by the employer. Hawkms v. lan Ross (Cashngs) Lid (197011 All E.R. 180 at 186. cf. Bratnim v. Techno Cottsłructkms (19621 C.L.Y. 2069;

Vinnyey v. Star Paper Mills Lid (1965] l All E.R. 175.

^M Since the abolition of common employment the employer is liable vicariously for the negligence of the person in charge of the operation, but this cannot assist the claimant if he was himself in charge or if no worker was guilty of negligence.

"General Cleaning Coniractors i\ Chnstmas (19531 A.C. 180 at 189-190, per Lord Oaksey; Smith v. National Coal Board (19671 1 W.L.R 871 at 873, per Lord Reid; Kcrry v. Carter |1969l 1 W.L.R. 1372; Bus r. Sydney C.C. (1989) 85 A.L.R. 211.

^u Gaieral Cleaning Contraclors v. Christmas (1953] A.C. 180; Clifford v. Charles H Challen & Son (19511 I K.B.

495; Cmokali v. Vickers~A mistrong Ltd (1955] 1 W.L.R. 659; Nolan v. Dental Marni fact u ring Co. (1958] l W.LR. 936. cf. Woods u. Durable Śuttes (1953] l W.L.R. 857; Bux v. Slough Metals Ud\\973) 1 W.L.R 1358;

Papę v. Cumbria C.C. (1992] I.C.R. 132.

¹⁷ Qualcast (Woherhampton) Ltd v. Haynes (1959] A.C 743 at 760.

^,M "I depreciate any tcndency to treat the relation of employer and skilled workman as equivalent to that of a nurse and imbecile child": Smith v. Austin Lifts (1959] | W.L.R 100 at 105. per Viscount Simonds.

In Smith v. Scot Bouyers (19861 I.R.LR. 315 it was held to be enough to inform workers about the availability of repłacement boots it was not necessary to inspect boots ii\ use from time to time. Osamk v. Hawker Siddeley Waler Enginecring Ltd. The Times. October 28. 1982, is an entertaining case Personal Protective Equipment at Work Regulations 1992, reg. 10(1).

²⁰ It Ls the employee's duty to use the equipment: reg. 10(2).

³¹ McDermid r. Nash DreJging and Reclamation Co. Ltd (1987] A.C. 906.

²² Daimlson v. Handley Page Ltd (1945] 1 All E.R. 235.