THE EMPLOYER'S LIABILITY (DEFECTIVE EQUIPMENT) ACT 1969‐II
| Date | 01 May 1970 |
| Author | John Mesher |
| Published date | 01 May 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01274.x |
STATUTES
TEE
EMPLOYER’S
LIABILITY (DEFECTIVE EQUIPMENT) ACT
1969-11
A
FEW
very brief comments are offered on aspects of the Act not
dealt with in
Mr.
Ingman’s note,l though
no
more can be done
than to point to problems. Solutions are for wiser heads than
mine. First, the general structure of the Act. The employee’s
injury is deemed to be attributable to the employer’s negligence
when the
defect
causing the injury “is attributable wholly
OT
partly to the fault At first sight this looks
like negligence in the air-one can only talk of negligence in relation
to a particular injury to a particular plaintiff. Further, a plaintiff
cannot build on conduct which may have been negligent to some
other person.“ Therefore, to make legal sense the definition of
“
fault
”
in the Act must be read as if the words
“
to the injured
employee in respect of such injury
”
were added after
“
liability
in tort
”
and
“
liability in damages.” The courts seem to have
acted on this (unarticulated) assumption when dealing with
a
some-
what similar provision in the Employer’s Liability Act 1880.5
However, the purpose of the
1969
Act-to make the employer
liable whenever the third party would have been liable to the
employee-could have been served far more simply by the familiar
formula
“
would if sued have been liable in respect of the same
damage.”
Use of this formula could also have avoided use of the word
‘‘
defect,” We may be driven back
to
the cases interpreting the
1880
Act, which reached a very wide
view
(e.g.
‘‘
‘
Defect
’
means a lack
or
absence of something
essential to completeness
”
However, the particular words in
that Act were
‘‘
any defect in the condition of the ways, works,
of a
third
party.”
3
which is not a term of art.
1
(1970) 33
M.L.R.
70-76, where t!y terms of the Act are set out.
2
Defined in
8.
1
(3)
of the Act a8 negligence, breach of statutory duty or other
act or omission which gives rise to liability in
tort
in England and Wales or
which is wrongful and gives rise to liability in damages in Scotland.”
8
8.
1
(1)
(b).
4
e.g.
a
sighted man who fell over the
Haley
V.
L.E.B.
punner-hammer could
not have succeeded on the ground that the Board had been negligent towards
blind pedestrians.
5
8.
2
(1).
See,
e.g.
the judgment of Lord Halsbury L.C. in
Smith
v.
Baker
ct
CO.
[la911 A.C. 325, 334, and Lord Watson at p. 352. The Act was repealed
by the Law Reform (Personal Injuries) Act 1948.
defect
’
is
in the abstract
is
to attempt an
impossibility
”:
per
Lord Coleridge
C..J.
in
Morgan
V.
Hutchins
(1890)
59
4
See the Law Reform (Married Women and Tortfeasors) Act 1935,
s.
6.
7
“. . .
to attempt to define what
8
Per
Bruce
J.
in
“ate
v.
Latham
[1897]
1
Q.B.
502,
506.
L.J.Q.B.
197, 198.
299
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