Employers Liability in UK Law

I would hazard, however, the view that what one is looking for is a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence.

On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered.

Much of the difficulty which surrounds this subject arises out of the 19th centurey conception that a servant of a general employer may be transferred to a temporary employers so do to become for the time being the servant of the temporary employer. In such case the parties do not contemplate that the temporary employers shall tell the man how to manipulate his machine of to exercise his skill. The temporary employer can then no doubt tell the labourer how he is to do the job.

This House held that on the contrary the statutory duty was personal to the employer, in this sense that he was bound to perform it by himself or by his servants. The same principle in my opinion applies to those fundamental obligations of a contract of employment which lie outside the doctrine of common employment, and for the performance of which employers are absolutely responsible. The obligation is fulfilled by the exercise of due care and skill.

The proposition would be more correctly stated to be that his duty is to supply and instal proper machinery so far as care and skill can secure this result. He can, and often he must, perform this duty by the employment of an agent who acts on his behalf; but he then remains liable to the employees unless the agent has himself used due care and skill in carrying out the employer's duty.

The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead.

If the Fairchild principle were based upon the fiction that each Fairchild defendant had actually caused the eventual outcome, the analogy with tortfeasors each of whom had contributed to an indivisible outcome would be very close.