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1.4.5 Civil law
Civil law has its roots in ancient laws from the 11th cen-tury and beyond and is most likely to be encountered relative to workplace conduct as ‘common law’. It deals with the manner in which individuals should conduct their affairs in modern society.
It is not laid down by statute but rather is found as an accumulation of decisions made by judges in individ-ual cases. This process is referred to as a precedent whereby as each case is decided in court principles of law are established.
A fundamental principle that has been established by common law in the UK is that people have a ‘duty of care’ towards others who may be affected by what they do. In the case of health and safety, this duty has been expanded by a judicial precedent to be a duty of
‘reasonable care’. When determining what is meant by reasonable care the courts will take into account the qualifi cations, experience, age, locality, intelligence, seniority and skills of the individuals concerned.
For example, it is likely that the courts will fi nd that reasonable care has been exercised by a company when making arrangements for the safe evacuation of a building in the case of fi re if it has ensured suffi cient arrangements for the management of the young, infi rm, disabled and sensory impaired persons.
Negligence
The term ‘tort’ means a civil wrong committed by one party against another. In the case of occupational
health and safety, the tort of negligence is of particular interest.
The tort of negligence involves more than simply careless conduct causing a loss to an individual. For a civil law claim of negligence to succeed, the claimant must prove three elements:
1. That a duty of ‘reasonable care’ was owed to the claimant by the defendant
2. That the duty of ‘reasonable care’ was breached 3. That the claimant suffered a loss as a result of the
breach of duty of reasonable care.
Duty of ‘reasonable care’ owed
When considering whether or not a duty of reasonable care was owed courts will always seek to identify an established relationship between the claimant and the duty holder. Relationships that have been established by judicial precedent include employer/employee, doctor/
patient and teacher/pupil. For claims relating to the duty of reasonable care the landmark case that established the ‘neighbour’ principle was the case of Donoghue v.
Stevenson (1932).
In this case, the claimant, Miss Donoghue, and a friend went into a café and her friend bought two bottles of ginger beer. The bartender served the beer in their original bottles that were dark green and opaque.
The claimant drank part of the contents of one bottle and on refi lling her glass, she discovered the part decomposed body of a snail in the remaining beer. As a result of drinking the beer she became ill.
Figure 1.20 The balance of reasonability
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So, whom would she sue for her loss?
Her options were to sue the friend for supplying the beer, the bartender for selling the beer, or the original manufacturer and bottler of the beer. As was proven in the case the party most responsible for her loss and in best position to compensate Miss Donoghue was the manufacturer.
During the case, Lord Aitken made the following statement regarding the manufacturer, which is now known as the ‘neighbour principle’:
You must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? They are per-sons who are so closely or directly affected by my acts or omissions that I ought to have them in mind.
Ultimately the manufacturer does not only owe duty to those purchasing, but also those consuming the ginger beer. This principle is used in negligence claims under safety grounds. Therefore using this neighbour principle, the following groups of people could be regarded as the
‘neighbours’ of employers:
➤ Employees
➤ Agency staff
➤ Contractors
➤ Members of the public
➤ Emergency services
➤ Visitors.
Duty of ‘reasonable care’ breached
The second test of negligence is that there is a breach of the duty of reasonable care. In order to demonstrate that there is a breach, a claimant must prove that the defend-ant negligently did something or omitted to do some-thing that a reasonable man would do. This appears to be a somewhat circular argument; however, the courts use the case of Blythe v. Birmingham Waterworks Co.
(1856) as the test of whether the duty of reasonable care has in fact been breached. In that case the judge set the precedent that:
Negligence is the omission to do something which a reasonable man, guided upon those considerations which obviously regulate the conduct of human affairs, would do or some-thing which the prudent and reasonable man would not do.
This defi nition itself raises two further questions which the court must decide, i.e.:
1. What is a reasonable man?
2. What are those considerations?
What is a reasonable man?
A reasonable man is defi ned in the case Glasgow Corporation v. Muir as:
An imaginary being who is neither imprudent nor over cautious . . . he is in effect the man on the Clapham omnibus.
It is therefore the behaviour of a hypothetical (aver-age) person that courts have to consider when decid-ing whether or not the standard of ‘reasonable care’ has been achieved.
An important factor is that the standard of reason-able care owed varies dependent upon the skill, experi-ence and competexperi-ence of the person so that the standard of care owed by the skilled, experienced, competent person is greater than that expected from the unskilled, inexperienced, less competent person. The same can be said for an organisation, namely the employer who owes a duty of reasonable care to employees and others.
For example, the level of care taken by a young person working as a trainee chef in a busy kitchen may not be the same as the chef. The courts would expect the chef to be able and motivated to take more care, therefore the standard for the chef is higher than for the trainee.
What are those considerations?
The considerations that guide the reasonable man relate to the degree of risk associated with the activity and the cost incurred in averting the risk.
Risk is a combination of the likelihood of injury or harm and the severity of the injury or harm risked:
Riskⴝ Likelihood ⴛ Severity
The cost incurred in averting the risk is not simply fi nancial but should include the time and effort required in implementing the precautionary measures. The result is a scale of risk v. cost as illustrated in Figure 1.21.
The judgment of risk v. cost must be made before not after the injury, damage or loss is suffered.
Figure 1.21 The balance of risk against cost
Risk Cost
Loss sustained as a result of the breach
The third and fi nal test of the tort of negligence is for the claimant to prove that injury, damage or loss was sustained as a result of the defendant’s failure to take reasonable care. It is important that the loss sustained is directly linked to the breach. Cases have been lost where the loss that was undoubtedly sustained had not been directly caused by the specifi c breach of duty.
The employer’s liability
Due to the nature of the common law relating to negli-gence in the UK it is obvious that an employer is liable to be sued for compensation for any loss or damages suffered by his employees. It is for this reason that employers in the UK are obliged by law to hold com-pulsory ‘employers liability insurance’. This insurance covers the employers for claims from their employees for up to £5 million. Employers will also take out public liability insurance to cover themselves from claims made by third parties who are seeking compensation for a loss, although this is not compulsory.
Vicarious liability
An important principle in negligence cases is that of vicarious liability. In essence this renders the employer directly liable for the actions of his employees.
The reason why this principle is applied is to allow the courts to order compensation from the employer
who is generally in a much better position to be able to pay large amounts of compensation to the claimant.
To avoid being held vicariously liable, an employer must be able to demonstrate that the employee who acted negligently was doing so on his own volition.
The courts refer to the independent action by an employee as his being on a ‘frolic of his own’ and in these cases the employer cannot be held vicariously responsible.
Defences against claims for compensation due to negligence
In the cases of civil actions for compensation for neg-ligence, the defendant has available the following defences:
➤ There was no duty owed to the claimant – the defendant may claim the claimant was not a neighbour
➤ There was no breach of the duty of reasonable care – the defendant may claim that all that could reasonably be done was done
➤ The loss was not caused by the breach – the defendant may suggest that the loss suffered by the claimant was not connected with the breach
➤ Volenti non fi t injuria – the defendant argues that the loss was caused after the claimant had accepted the risk voluntarily.
Figure 1.22 Employers are vicariously liable for the actions of their employees
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Once the court has established negligence on behalf of the defendant, it may then be argued that the claimant displayed contributory negligence. In other words that the loss was wholly or partly as a result of the claimant’s own unreasonable behaviour.
Limitations Act 1980 applies
This Act of Parliament gives a specifi c time period dur-ing which claims can be made in the civil courts. For personal injury cases, this period equates to three years from the date of the unreasonable acts which caused them, or for industrial diseases three years from the date of diagnosis. Any claims submitted outside this deadline are not accepted by the civil courts.