The Last Bastion Of Fault? Contributory Negligence In Actions For Employers' Liability
| Published date | 01 November 1979 |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01558.x |
| Date | 01 November 1979 |
THE LAST
BASTION
OF
FAULT?
CONTRIBUTORY NEGLIGENCE IN ACTIONS
FOR
EMPLOYERS’ LIABILITY
A.
INTRODUCTION
IN
England when an employee is injured at work the question of
whether he
is
to receive full compensation for his injuries is still
answered by reference to the Law of Torts. It is the Law of Torts
which determines whether the employer should be liable in damages
and it is the Law of Torts which determines the mcasure of damages
payable. The notion of
“
fault
”
in the sense
of
moral blameworthi-
ness which used to be said to underlie tortious liability is to a great
extent fictitious in the area of personal injuries in general and indus-
trial injuries
in
particular. The factors which have combined to oust
“
fault
”
from its primacy in this branch of the law can be summarised
as
follows
:
1.
An employer’s duties to provide his employees with a competent
staff of men, adequate plant and equipment and a safe system of
working are
“
non-delegable
”
duties to see that care is taken.a
This
means that an employer who uses all reasonable care in delegating
these duties will still be liable if injury is caused to an employee by the
negligence of the delegate.
2.
Until
1948
an employer could not be held vicariously liable to
an employee for damage caused by the tort of another
of
his em-
ployees. This doctrine of common employment was abolished by the
Law Reform (Personal Injuries) Act
1948.
3.
Since
1969
employers have been liable for personal injuries
caused to employees by defective equipment as a result
of
any tort
committed by anybody.3
4.
In the vast majority of cases the employer is a corporation and
incapable of personal
‘‘
fault.” Even
“
human
”
employers are rarely
personally involved in industrial accidents.
5.
Negligence, depending as it does, upon an objective standard of
care, is not synonymous with
“
fault.”
A
man
is
guilty
of
negligence
if
his conduct was less careful than that of the hypothetical reasonable
man, regardless of whcther he was in fact capable
of
acting as the
reasonable man would have acted.“
1
Throughout this article the word fault is placed between double inverted
3
See
Wilsoris
and Clyde
Coal
Co.
v.
English
[1938]
A.C.
57.
9
Employer’s Liability (Defective Equipment) Act 1969.
*
See,
e.g.
Neffleshlp
v.
Weston
[1971]
2
Q,B.
691 where
a
learner driver on
her
first
lesson was held
to
be liable in negligence
for
failing
to
excrdse
the
same
dcgrce of skill
as
the reasonable.
Le.
qualified, driver.
646
wmmas whenever it is used
to
mean moral blameworlhincss.
Nov. 19791
THE
LAST
BASTION
OF
FAULT?
647
6.
The maxim
res
ipsa
foquitur
sometimes relieves the plaintiff
of the onus of proving negligen~e.~
7. An injured employee often has
a
claim for breach of statutory
duty and many of the relevant statutory duties are strict and can
be
broken without any
“
fault.”
8.
Employers are required by law’ to insure against incurring
liability for industrial injuries,
so
the industrial community as a
whole pays for the compensation
of
injured workmen.
If
“fault,” on the part of the person or institution from whom
compensation
is
claimed, is no longer of paramount importance,
“
fault
”
on the part of the injured workman will still, in many cases.
result in
a
reduction of the magnitude of his compensation. This
article will examine the extent to which the partial defence of con-
tributory negligence is based upon the concept of
‘‘
fault
”
in the
sense of moral blameworthiness. This will involve an investigation of
the criteria upon which the courts decide whether
a
workman has
been guilty of contributory negligence and also an investigation of the
criteria upon which the courts decide upon the extent by which to
reduce the damages. We will then consider whether the present law
is satisfactory and whether any reform is desirable.
PART
1.
Is
CONTRIBUTORY
NEGLIGENCE
SYNONYMOUS
WITH
“
FAULT
”7
At Common Law
a
finding of contributory negligence served to de-
prive the plaintiff of all his damages. This was altered by section
1
(1)
of
the Law Reform (Contributory Negligence) Act
1945
which
provides
:
“
Where any person suffers damage as the result of partly his own
fault and partly the fault of any other person or persons, a
claim in respect of that damage shall not be defeated by reason
of the fault of the person suffering the damage, but the damages
recoverable in respect thereof shall be reduced to such extent as
the court thinks just and equitable having regard to the claimant’s
share in the responsibility for the damage.”
“
. .
.
negligence, breach of statutory duty or other act or omis-
sion which gives rise to
a
liability in tort or would, apart from this
Act, give rise to the defence of contributory negligence.”
Reading section
1
(1)
with section
4
one might suppose that where an
employee is injured partly as a result of his own tortious act
or
con-
tributory negligence the court will reduce the damages to such an
extent as it thinks just and equitable having regard to the employee’s
share in the responsibility for the damage.
If
this supposition were
Section 4 defines fault
as
:
8
See
Lloyde
v.
Wesr
Midlands
Gm
Board
[1971]
2
All
E.R.
1240.
a
See,
e.g.
s.
14
of
the
Factories Act 1961.
Employer’s
Liability
(Compulsory
Insurance) Act 1969.
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