Introduction
In contrast to criminal liabilities, civil liabilities refer to the penalties that can be imposed by a civil court.
Civil actions generally involve individuals, such as a claimant suing a defendant. In most cases, civil action result in the form of damages. Which is a form of financial compensation.
Another key difference is a civil case must be proved on the balance of probabilities. This is a lesser standard than that of beyond reasonable doubt, which is required in a criminal case.
The civil courts are the County Court and the High Court. Much of their work is concerned with claims for injuries sustained at work.
Injury claims may be dealt with by these courts. However it is estimated that 95% of cases are settled out of court.
Negligence
Negligence is a civil wrong or tort. It involves unreasonably careless conduct, or a breach of the common law duty of care. Resulting in a loss, damage or injury.
Tort of negligence
A tort in English law is a breach of a legal duty imposed by law. (The equivalent in Scotland is known as a delict.
It applies most commonly in two areas, i.e. nuisance and trespass.
Double barreled action
A claimant who seeks compensation for a work related injury could use the following torts at the same time:
- Tort of negligence.
- Tort of breach of statutory duty.
The duty of care concept is closely allied to the tort of negligence. If by carelessness, by act or omission, a person injures another, he/she is likely to be guilty of negligence.
Under common law, we all have a duty to exercise care towards others.
Negligence implies a neglect to do something – it is the lack of duty of care.
In order to sue successfully for negligence, there are three main points to establish:
- That the defendant was under a duty of care to the claimant (injured party)
- That the duty had been breached
- That as a result of the breach, the claimant suffered damage
Neighbour principle
Common law holds that individuals must take reasonable care of others. This has been borne out over the years by a number of important cases.
The first of these highlighted the importance of the neighbour principle and established negligence as an independent tort.
Donoghue v. Stevenson (1932)
This case involved a woman consuming a soft drink in which was found the remains of a decomposed snail. She was subsequently ill and sued the manufacturer. In this case, the judge said that reasonable care must be taken to avoid acts or omissions which, with reasonable foresight, you would know would be likely to injure your neighbour. This is known as the neighbour principle.
Thus the test of whether someone is a neighbour, in the legal sense, can be established if it can be reasonably foreseen that the act may cause harm to them.
In health and safety terms, the same concept applies to employers. Who are also under a common law duty of care towards their employees and others.
Vicarious liability
Vicarious liability occurs under civil law only. It is based on the fact that if an employee, whilst acting in the course of their employment, negligently injures another employee or the employee of another employer, the employer, rather than that employee, will be liable for that injury.
Vicarious liability rests on the employer simply as a result of the fact that he/she is the employer and is deemed to have ultimate control over his employees.
Contributory negligence
Contributory negligence is a defence both to an action in negligence and breach of statutory duty.
In general, however, the carelessness of employees as claimants is treated more leniently than the negligence of employers. Even where liability rests upon the vicarious responsibility of the employer for the negligence of another employee.
Social action, responsibility and heroism act 2015
The social action, responsibility and heroism act of 2015 can be used as a defence against negligence and breach of statutory duty. Only where relevant and when ‘the person was acting for the benefit of society or any of its members’.
Also that they have ‘demonstrated a predominantly responsible approach towards protecting the safety or other interests of others’ or if ‘the person was acting heroically by intervening in an emergency to assist an individual in danger’.
Duty of care
It is a well-established principle of common law that employers must take reasonable care to protect their employees from the risks of foreseeable injury, disease or death at work.
If an employer is aware of a health and safety risk to employees, he will be liable if an employee is injured, killed, or suffers illness as a result of the risk. The employer will also be liable if they failed to take reasonable care to avoid this happening.
The common law duties of an employer were identified in general terms in Wilsons & Clyde Coal Co. Ltd v. English (1938). In this well-known case, the employers were liable for injuries caused to a miner as a result of an unsafe system of working.
In arriving at their decision, the judges re-examined the employer’s traditional common law duties – the provision of competent fellow employees, properly-maintained plant and equipment, and a safe place and safe system of work.
The case was also important because it stated that those duties were owed personally by the employer to each employee and were non-delegable – that is to say, the performance of those duties could be delegated but the responsibility for their correct discharge could not.
The common law requires that all employers provide and maintain
- A safe place of work with safe means of access to and egress from it.
- A safe system for doing that work.
- Competent and safety-conscious personnel.
- Safe appliances, equipment and plant for doing the work.
Employer's Liability (Defective Equipment) Act 1969
The employer’s liability for defective equipment act of 1969 attributes negligence to an employer in the following circumstances:
- An employee suffers injury in the course of employment because of defective equipment
- The equipment was provided by the employer for use in connection with his business
- The defect was attributable to a third party such as a manufacturer, supplier, distributor or importer
Safety Training, Supervision and Protective Equipment
The duty for employers to provide adequate safety training, supervision and protective equipment is well established.
There is a duty on the employer to provide protective equipment, e.g. eye protection, where there is an obvious danger.
An employee is therefore expected to make use of protective measures when they are provided.
Protection of New and Expectant Mothers
Where a risk could be present to the mother or her unborn child, a risk assessment should be carried out.
If the risk could not be eliminated, then the employer would have to adjust the working conditions or hours to avoid the risk.
If the risk could not be avoided, then the employee could be suspended on full pay.