Workplace negligence. The tort of workplace negligence is made up of three main components; duty of care, breach of duty and damage. In the context of an accident at work this translates to the following test:
1. Duty – Was the Claimant owed a duty of care?
2. Breach of Duty – Was that duty of care breached?
3. Causation – Did the Claimant sustain damage or loss as a result of this breach? (Causation)
4. Damage – Did the Claimant suffer damage/loss that can be remedied by money damages?
If the answer to all of the above is ‘yes’ then it is likely that your employer has acted negligently. You should be able to make a successful claim for compensation. This article will focus on breach of duty. The most difficult hurdle in establishing negligence in accident at work cases.
Breach of duty is governed by both the common law and a statutory framework which imposes duties and obligations on employers. The standard of care required by the common law is that of a reasonable man. This test was defined in Blyth v Birmingham Water Works Co (1856) as an ‘omission to do something that a reasonable and prudent man would not do’
The standard of care required under the common law is not always the same. Where some precautions are required the standard of care that can reasonably be expected will vary according to the magnitude of the risk, the purpose of the defendant’s activity and the practicability of precautions. In practical terms, the obligations of a potential defendant may increase where the risk to a plaintiff is greater than usual.
Some of the common duties which will be owed to employees in the workplace will include providing a safe working environment. Providing adequate supervision, ensuring appropriate safety mechanisms were in place, providing adequate clothing and equipment and risk assessing various tasks. If one of these duties are breached and the other components of negligence are established then your employer will be liable for any damage or loss you have suffered.
The common law position on ‘the reasonable person’ test is clear in the context of accidents at work. Where a person undertakes a task, which requires a particular skill he will be judged by the standards of a person who is reasonably competent in the exercise. For example, a highly skilled crane driver would not be judged by the same standards as a labourer. Even if they worked on the same site or for the same employer.
Burden of Proof
The burden of proof in workplace negligence cases lies with the plaintiff. This means that the injured party in an accident at work claim must prove that, on the balance of probabilities, their employer breached their duty of care and that breach caused damage or loss to the plaintiff. Gathering evidence to support your case will be key to a successful claim in negligence.
A common method for establishing breach of duty in accident at work cases is to instruct an independent engineer to inspect the locus of an accident. They’ll provide an expert opinion on whether the employer breached their duty of care to the employee. An engineer can comment on the systems of work, risk assessments, equipment, supervision and other factors that may have caused an accident.
Obtaining a medical report from the relevant expert will be another vital item of evidence. This will be more integral in establishing causation and damage rather than breach of duty.
The legal framework for negligence is embedded firmly in the common law and in statute. In practice the test for negligence is applied quite procedurally. The Courts adopt a common sense approach when deciding if an employer has breached their duty to their employee.
Of course, it is not essential to resolve personal injury claims directly through the courts. Most employers will be insured in respect of accidents at work. Our personal injury solicitors can liaise directly with the insurance company. If breach of duty is admitted we will send medical evidence and the insurance company will provide offers of settlement.
If breach of duty is denied and we believe the case has merit we may advise our clients to issue proceedings and seek to recover damages through the courts.