Chapter 13 Answers to End-of-chapter questions

1. Critically evaluate the development of the common law duty of employers to their employees.

A strong answer to this question will not only outline an employer's common law duty of care, but locate it within its historical context – in particular the 'unholy trinity' of a) the doctrine of common employment (removed by the Law Reform (Personal Injuries) Act 1948) and the defences of b) contributory negligence (reduced to a partial defence by the Law Reform (Contributory Negligence) Act 1945) and c) volenti (discussed in Smith v Baker and Sons [1891] in which the House of Lords finally accepted that workers had limited choices about their working conditions).
You should then consider the extent to which the common law duty of care has been restricted by the Enterprise and Regulatory Reform Act 2013. Section 69 of the Act prevents claims from being brought against an employer unless specifi­cally provided for by the statute or where it can be proven, on ordinarily common law principles, that the employer has been negligent. You may find it helpful to refer to the discussion in chapter 14 as well as Nigel Tomkin’s 2013 Journal of Personal Injury Law article here.
You should also demonstrate your understanding of how an employer's personal duty of care operates by referring to Wilsons & Clyde Coal Co v English [1938] and the various components of an employer's duty to take reasonable care through a) 'the provision of a competent staff'; b) 'adequate material'; c) 'a proper system and effective supervision'; and d) a safe place of work. A strong answer would use case law to support the points made in this discussion.
Finally, you should consider the scope of recovery. This mirrors the ordinary position in tort law – although note the position as regards recovery for psychiatric harm in the workplace in the so-called 'stress at work' cases discussed in Chapter 5.