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300 FMPI.OYERS^- LIABILITY

order does not necessarily deprive him of the protection of his emplover'_s duty, though he may, of course, be guilty of contributory negligence.¹⁵ The special duty we are now considering arises only when the relation-ship of employer and servant exists²* and so an independent contractor employed to do work in a factory, or a visitor, cannot rely upon it. Such a person will, however, generally be owed some other duty of care.^2S It is important to notice that although the employer's duty springs from the relationship of employment, the duty is owed individually to each worker, so that circumstances concerning the particular worker which are known or which ought to be known to the employer will affect the precautions which the employer must take in order to fulfil his dutv. Thus, in Pnris v. Stepney Borough CouttciP⁶ the claimant had only one eye and it was, therefore, held that he should have been provided with goggles even though the risk involved in his work was not so great as to require the provision of goggles to a normal two-eyed man doing a similar job. Conversely: "an experienced man dealing with a familiar and obvious risk may not reasonably need the same attention or the same precaution as an inexperienced man who is likely to be morę receptive of advice or admonition."²⁷

Strictness of the duty

8.15 As has been emphasised in the foregoing paragraphs and has been constantly reiterated by the courts, the employer's duty is a duty of care only and, though a high standard is required, there are limits to the protection which the employer must provide, even against foreseeable risk to his employee.²⁸ In Withers v. Perry Chain Co.²⁹ the claimant had previously contracted dermatitis from contact with grease in the course of her work and was, therefore, given by her employers the driest work they had available. This work she accepted without protest but nevertheless she again contracted dermatitis and sued her employers on the ground that, knowing that she was susceptible to dermatitis, they should not have permitted her to do work carrying a risk of causing that disease. Her action was dismissed by the Court of Appeal because the employers had done everything they reasonably could have done to protect the claimant short of refusing to employ her at all. "In my opinion there is no legał duty on an employer to prevent an adult employee from doing work

Rand* v. McNcil 119551 1 Q.B. 253 (but no breach of duty on the fncts).

But the importance of safety may !ead the court to emphasise the substance rather than the form of the relationship: Lanc r. Shire Roofing (Oxfoni) Ltd (19951 I.R.L.R. 493, And sec Mtdla/uy v. CC. Midlands (20011 EWCA Civ 700 (police—"quasi-employment"). t*.y. under the Occupiers' Liability Act 1957.

(19511 A C. 367. cf. Hntton v. Sułherland (2002| EWCA Civ 76 (strcss; employer's legitimate expectatiom about ca pa ci ty).

²⁷ Qualcast (Wohrrhnmpton) Ud v. Haynes (1959J A.C- 743 at 754, per Lord Radcłifte. But the employer cannot necessarily accept at face value the servant*s assertion of previous experience: Tasci v. Pchli;' > ‘ London Ltd (20001 l.C.R. 633. cf. Mnkąteace v. Evans Bros. (Reading), The Times, June 13, 2000.

^See, c.^. Latirncr v. A.E.C. (19531 A.C. 643. For the standard of care in negligence generally see Chnp- ^ above.

^imil 1 W.L.R 1314.

v^hich he or she is willing to do. If there is a slight risk... it is for the employee to weigh it against the desirability, or perhaps the necessity, of _ernployment. The relationship of master and servant is not that of a schoolmaster and pupil¹⁰... It cannot be said that an employer is bound to dismiss an employee rather than allow her to run a smali risk."¹¹ In the _{case 0}f stress, even where the risk to health is substantial, it has to be for the employee to decide whether or not to carry on¹²: it should not be for the law to say that an employer must sack a worker to protect his mental Health.³³

The generał defence of voluntarv assumption of risk is rarely available in cases of employers' liability because the courts are unwilling to infer an agreement bv the worker to run the risk of his employer's negligence merely because he remains in unsafe employment.¹⁴ However, in ]ohn-stoue v. Bloomsbury Health Authority,³⁵ where the claimant was contrac-tually committed to work up to an average of 88 hours a week if the employer so required, it was contended that the express term of the contract limited or overrode the employer's duty of care not to injure his health. On a striking-out Application, this was accepted in principle by Browne-Wilkinson V.-C. and Leggatt L.J.³⁶ but the majority of the court (Stuart-Smith L.J. and Browne-Wilkinson V.-C.) held that the contractual right to cali for long hours was, on the proper construction of the contract of employment, limited to calling for work that was compatible with the employer's duty of care. Such a case will also raise issues under the Unfair Contract Terms Act 1977.³⁷

Independent contractors

It might be supposed, therefore, that an employer who entrusts some 8.16 task to a third party (not a servant), whose competence he has taken reasonable care to ascertain, has thereby discharged his own duty of reasonable care. To State the law in this way, however, would be to deny the ratio decidendi of Wilsons and Clyde Coal Co. v. English³⁸ that the employer's duty is personal and is not discharged simply by the appoint-ment of a competent person to carry out the necessary tasks. In that case “See. e.g. Razarb v. ftsl Office 119971 P.I.QR. P15 (simple lifting task)

” ibid., at 1320. per Dcvlin L.J ^B Hallmi v. SulherlanJ 12002) EWCA Gv 76.

Doos this mcan that if he does sack him the dismissal is unfair? cf. Canterbury C.C. v. Hondetfc 11997] I.CR. 923 (duty under the Health and Safety at Work etc. Act 1974, s.2, to ensure safety to employecs Was duty to do wh.it could be done in the context of the job and did not prohibit work—entering tiger'*-tage—which could not be done without danger; but on the civil liability in such a situation, see the Animals Act 1971, s.6(5), para. 16.8, below),

See para. 25.11, below.

^ (19921 Q.B. 333.

In fact, Stuart-Smith L|. also accepted that what he called an "express term of wlenti mm fJł injuria" would exclude the employer's duty Sce para. 25.6. below.

(19381 A.C 57 para. 8.9, above.