Personal injury law

Employer's duty to remove employees from risk of injury

Coxall v Goodyear Great Britain Ltd: CA (Lords Justice Simon Brown and Brooke):22 July 2002

Mr Coxall suffered from occupational asthma as a result of exposure to a paint product at the defendant's premises.

The defendant's doctors and health and safety officials had identified that it was important for him to be removed from his work because of a mild constitutional pre-disposition to asthma.

Unfortunately, the advice was not acted on and the judge at first instance found the defendants liable for the exacerbation of his condition through the additional exposure to the irritant fumes.

Mr Coxall had apparently known that the company doctor had recommended that he be removed from his job, but had chosen to remain at work because he needed the income.

The case considered the responsibility of an employer in relation to an employee who chooses to remain in employment that creates a risk of injury.

This had been considered in the case of Withers v Perry Chain Company Ltd [1961] 1 WLR 1314 and Sutherland v Hatton [2002] 2 ALL ER 1.

The court in Withers held: 'in principle, the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employee's own good'.

The court was left with balancing the differing philosophies identified in Withers and Sutherland namely that the relationship between employer and employee is not one of school master and pupil contrasted with the employer's overall responsibility of the health and safety of its workforce.

Lord Justice Simon Brown held that resolution is dependent on the individual facts of each case with the principal consideration being the 'actual nature and extent of the known risk'.

Intriguingly, in the instant case, he ruled that the deciding factor in favour of the claimant was that the employer's doctor, line manager and health and safety manager had all thought that the claimant should cease work, which was not so in the previously decided cases.

Interestingly, contributory negligence was not pursued by the defendants, but Lord Justice Brown suggested that if it had been there would have been a finding in part against the claimant.

One concludes from the closing remarks of Lord Justice Brooke that an employer reading the judgment would simply discuss options with his employees so that the buck could be passed firmly into the hands of the employee to take the decision.

Once more, building on the decisions of the Appellant Court in Hatton and Alsop (see [2002] Gazette, 20 June, 33) there seems to be an overpowering willingness on the part of the court to pass the burden of responsibility for the prevention of injury from the employer to the employee.

This is so strikingly contrary to the European approach that it should now be time for the Court of Appeal to reconsider the framework directive and to remind itself of the approach that member states of the EU should be adopting in relation to health and safety issues.

Contractor and occupier: duties under Occupier's Liability Act 1957

Gwilliam v West Hertfordshire Hospital NHS Trust and Others: CA (Lord Chief Justice, Lord Justices Waller and Sedley): 24 July 2002

In Fairchild v Glenhaven Funeral Services Ltd, the Court of Appeal considered the difference between 'occupancy duties' and 'activity duties'.

The dangerous activities carried on by contractors at the three defendants' premises involved the use of asbestos fibres.

Applying the 1957 Act, the court held that the occupier's responsibility was to take 'such steps as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been done properly'.

The claimants failed in their actions against the occupiers.

Ms Gwilliam also failed in her action against the occupier in the instant case.

The hospital had employed a contractor, 'Club Entertainments', to provide a 'splat-wall' as part of a fund-raising day.

It involved bouncing off a trampoline and adhering to the velcro-covered wall.

The claimant suffered injury when using the wall, but the contractor's public liability insurance had expired four days before the event.

The claimant alleged negligence on the part of the hospital trust through its failure to check the insurance position.

In fact, its employee, the fund-raising manager, had checked the insurance position by telephoning the contractor and asking if it had insurance, which was answered in the affirmative.

The Lord Chief Justice and Lord Justice Waller found that where 'a somewhat hazardous activity' is carried out on its land, the occupier may not have acted reasonably if he does not check the viability of the independent contractor and/or the insurance position so far as the independent contractor is concerned.

By making the enquiries that the fund-raising manager had carried out, the hospital had satisfied its duty of care.

The judgment of interest was that of Lord Justice Sedley who, while agreeing that there was no breach of duty by the hospital, expressed barely disguised astonishment at the view of his two colleagues that there was a duty to check the insurance position of the contractor in such circumstances.

He provides an example in support: 'Why will a householder who fails to check that his or her builder is insured not have to pay heavy damages to a neighbour who has been unable to make a worthwhile claim against the builder when a nail through a water pipe brings the neighbour's ceiling down or a carelessly handled blowtorch burns their house down?' His Lordship identifies that the duty owed by the occupier to visitors is not a special duty but the common duty of care and the ambit of that duty does not embrace an obligation to check on a contractor's insurance policy.

The Lord Chief Justice and Lord Justice Waller said it went to the competency of the contractor.

The telling point is that the majority found that the enquiry by telephone with no documentary proof was sufficient to discharge the occupier's obligation to check the insurance position.

This was, according to Lord Justice Sedley, 'a perfunctory enquiry met by a casual and verifiably negligent answer'.

However, it does suggest that an occupier has to do very little to shift the burden of responsibility onto a contractor if the judgment of the majority in this case and the court in Fairchild reflects the true position.

By Simon Allen, Russell Jones & Walker, Sheffield