img041 4

296 EMPLOYERS' UABILITY

equipment in proper condition, and the morę complex and dangerous that machinery the morę frequent must be the inspection.^KS What is required in each case, however, is reasonable care according to the cir-cumstances, and in sonie case it may be legitimate to rely upon the worker himself to rectify simple defects in the plant he is using.'"' The duty extends to the instaliation of necessary safety devices on dangerous machinery⁹⁰ and the prorision of protective equipment when required,“^l but the employer does not warrant the safety of plant and equipment. At common law, therefore, he is not liable if an accident is caused by some latent defect in equipment which could not have been discovered by the exercise of reasonable care on the part of the persons for whose negli-gence he is answerable.⁹² By the Employer's Liability (Defective Equip-ment) Act 1969,⁹⁴ however, if an employee is injured in the course of his employment in consequence of a defect in equipment provided by his employer and the defect is due to the fault of a third party, whether identified or not, then the injury is deemed to be also attributable to the negligence of the employer. Today, therefore, if a worker can show, for example, that a tool he was using was defective in such a way that there must, on a balance of probabilities, have been negligence or other fault in its manufacture, and that his injury was caused by that defect, then the employer as well as the manufacturer will be liable to him, whether or not the employer was in any way to blame.⁹⁴ The principal advantage of this form the worker's point of view is that he is relieved of any need to identify and sue the manufacturer of defective equipment provided bv his employer. Since the Corning into force of the Consumer Protection Act 1987,⁹⁵ the manufacturer is subject to a stricter liability not dependent on proof of negligence. Since "fault" is defined in the 1969 Act as "negligence, breach of statutory duty or other act or omission which gives rise to liability in tort"⁹" it seems that in such a case the employer may be liable even if there is no real fault on anyone's part.

f*,V Murphy ;■ Pltillifis (1876) 35 LT. 477; Baxtit i*. St Helena Hospital Management Committee, The Tinus. February 14.1972. Eeen inspection may not always bo sufficiont: Barkwatt p. S. Wnieś Transport Co. 11950] A C 185; Piany v. Round Oak Steel Works UJ |1%9| 1 W.LR. 595 ' Bristol Aemphnie Co. v. Franklin ]|948| W.N. 341; Richardson p. Stephenson Ciarkę l.td |1%9| 1 U l K 1695.

loneś p. Richards (19551 I W.LR. 444; Lopelidge r. Anselm Odlnn; & Sons UJ |1%7| 2 Q.B. 351. Sec abo Naismith v. London Film Pminctions [I939| I Ali E R. 794.

Qiuikast UJ ;• Haynes |1959| A.C 743, fier Lord Denning. But see Brown p. Rolls-Royce (19601 1 W I K 210. Sce also McGItee v. N.C B. 119731 1 W.L R I (washing facilities).

Ornie p. New Merton BoarJ Mills (1959] A.C. 604. Weir, Casebook on Tort <9th od ), p. 293.

The Act camc into lorce on Octobor 25, 1969, its main purpose bomg to reverso on its tacts the nsult ot Dante v. New Merton BoarJ Mills Ud, above "Equipment" has been hołd to include a 90,000-ton sbip Coltman p. Bihhtt Tankers UJ (1988] A.C. 276. The word cst.nds to materiał which is usod in the emplovment and is not confincd to tools with which that materiał is proccssed: Knawlcs v. l.iocrnvl C C (1993] 1 W.LR. 1428.

”* Clarkson r. lackson, The Times, November 21, 1984. The employer is entitłed to raise the detence ot contributor\ negligence against the worker and may seek to recoeer indemnity or contribution ln»m the person to whose fault the defect is attributable. He cannot. howeeer. contract out of the liability imposed by the Act

See para 10.12. beloiv (strict liability of manufacturer).

“S.K3).

Even morę favourable for most employees are the Provision and Use of Work Equipment Regulations 1998.¹'⁷ Under regulation 4 every employer is required to "ensure that work equipment⁹⁸ is so constructed or adapted as to be suitable for the purpose for which it is used or provided" and by regulation 6 he must "ensure that work equipment is maintained in an efficient State, in efficient working order and in good repair". In Galashiels Gas Co. Ud v. 0'DonnelP⁹ a provision of the Factories Act requiring lifts to be of "good mechanical construction ... and ... properly maintained" was held to give rise to liability merely on the basis that it failed to function properly and the same has been held under the 1998 Regulations.¹

(3) Safe place of work

Though not expressly mentioned by Lord Wright in Wilson* and Clyde 8.1 Coal Co. v. English,² it is elear that the employer's duty of care extends to the place of work³ and in some cases may even also apply to the means of access to the place of work.⁴ No particular difficulty exists where the place of work is in the occupation or control of the employer, but it must be recalled that the duty is one of reasonable care only and thus, the employer is not obliged to take unreasonable precautions even against foreseeable risks.’ At one time, however, it was thought that because an employer had no control over premises in the occupation of a third party he could owe no duty in respect of those premises, but it is now elear that this is wrong.⁶ The duty of care remains, but what is required for its performance may well be different where the place of work is not under the employer's control⁷:

⁵⁷See para. 85, above. But the Regulations would not apply to facts such as those of Coltnuui v. Btbby Tankrrs: reg. 3.

^m Which means “any machinery. appliance. apparatus, tool or installation for ust* at work (whether cxclusivolv or not)”. Compare the definition in the 1969 Act.

~ 119491 A.C. 273.

¹ Stark v. Post Office 12000) I.C.R. 1013 (dealing with the 1992 Regulations. which are identical in this respect).

*    11938} A.C. 57.

³ cg. Cole v. Dc TnifforJ (No. 2) (19181 2 K B. 535. ;vr Scrutton LJ.: Dapidson v. HandUy Page 11945] 1 AU E.R. 235 at 236, per Lord Creene M.R. At the lowest, the employer's duty to his emptoyee in respect of premises occupied by the employer must be the common duty of care under the Occupiers' Liability Act 1957. but probably it is stricter than that duty: para. 8.1t>, below. Most workplaces are now likely to be coeered by the Workplace (Health. Safety and Welfare) Regulations 1992 See in particular reg.

^Ą Ashdown p. Samuel Williams & Sons (1957) 1 Q.B. 409 at 430-432, per Parker L.J.; Smith v. National Coal BoarJ 11%71 1 W.L.R. 871. The employer can be subject to no duty of care so far as the means of access consists of a public highway, but if the employee has to cross private property, whether the employer's own or that of a third party, the duty should e\ist.

⁵ Latimer i\ A.E.C. 119531 A.C. 643; Thomas p. Bristol Aewplane Co. 119541 1 W.L R. 694 \or is he liable for a defect which would not have been revealcd by inspection: Bevan r. Milford Haven Dry L\*ck Cu 119621 2 Lloyd's Rep. 281; O'Re Ulu v. National Rnil and Tramiony Appliances l.td 119661 1 Ali H.R 499.

*    Wilson v. Tyneside Windom Ćleantng Co. (1958) 2 Q.B. 110; Smith v. Austin tjfts 119591 1 W.L R. 100; Clau v. A.j. Cruntp & Sons Ud 119f>4| I Q.B. 533.

^? It is likely of course that the occupier of the premises will owe a duty to the worker and even if the daimant does not sue him. if the employer ot the worker is held liable he may seek a contribution from the occupier: see Andnnrs v. Initial Cteaning Senńces Ud (20001 I.C.R 160, where it was conceded that both the employer and the owner of the premises were occupiers of the room