The Employer's Personal Duty of Care: Wilsons and Clyde Coal, Workplace Safety, and Psychiatric Injury at Work

Distinct from vicarious liability, which attributes a servant's tort to the master, an employer owes his workmen a personal and non delegable duty of care. Wilsons and Clyde Coal Co. Ltd. v. English settled that this duty is the employer's own, and that engaging a competent person to perform it does not discharge it. The duty is conventionally stated under three heads, to which a fourth, safe premises, is usually added: competent fellow employees, adequate plant and equipment, a safe system of work, and a safe place of work.

The threefold duty and safe premises, why it is non delegable, and the three kinds of harm

1. Wilsons and Clyde Coal Co. Ltd. v. English

2. The Heads of the Duty

• Providing equipment is not enough if its use is not enforced. An employer who supplies protective equipment and acquiesces in its not being used has not discharged the duty, particularly where the risk is grave and the employees are casual about it.
• The standard is reasonable care and not an absolute guarantee of safety. The employer is not an insurer, and a risk that could not reasonably have been anticipated or guarded against does not make him liable.
• But the standard rises with the gravity of the risk, so more is required where the consequence of a failure is death or serious injury.

3. Why the Duty Is Non Delegable

• The duty is to see that care is taken, and not merely to take care. That is the defining feature of a non delegable duty, examined in TORT 049.
• So it is no defence that the employer engaged a competent contractor, appointed a qualified manager, or satisfied every statutory requirement of delegation.
• The liability is not vicarious. It is the employer's own duty, broken by him though performed through another, which is why the defence of common employment could not meet it.
• It travels with the employee, so an employer who sends his workman to work on the premises of a third party remains bound to take reasonable care for his safety there, though what is reasonable is measured by the degree of control he has.
• It cannot be contracted away. Volenti non fit injuria is generally unavailable against an employee, because the pressure of employment makes consent unreal, and a contrary rule would allow the duty to be excluded by a term of the engagement: TORT 018.

4. Occupational Injury

• The ordinary cases are injury from unguarded machinery, falls from height, electrocution, chemical exposure, collapse of structures, and injury from a fellow employee's carelessness.
• Contributory negligence applies and reduces the award, but the courts make allowance for the inattention, fatigue and familiarity that repetitive industrial work produces, and are slow to reduce an award heavily against a workman who did what everybody in the shop did.
• Volenti is generally not available, for the reason given above.
• The statutory safety legislation supplies the standard. A breach of the Factories Act, 1948 or of the occupational safety and health legislation is powerful evidence of negligence, and may found a separate claim for breach of statutory duty: TORT 078.
• Compliance with the statutory standard is not a defence, on the ordinary principle that a standard is a floor and not a ceiling.

5. Occupational Disease

• The instances are pneumoconiosis and silicosis from dust, asbestosis and mesothelioma from asbestos, noise induced hearing loss, chemical poisoning, and repetitive strain injury.
• The first difficulty is causation, where the employee was exposed in several employments and no one of them can be shown to have caused the disease.
• Material contribution to the risk is the doctrine developed to meet that problem, examined in TORT 023: where each employer materially increased the risk of the very disease that occurred, each may be held liable notwithstanding that the but for test cannot be satisfied against any of them.
• The second difficulty is limitation, since the damage is latent and may emerge decades after the exposure. India has no statutory discovery rule, and the question turns on when the right to sue accrued under Article 113: TORT 097.
• A schedule of occupational diseases under the Employees' Compensation Act, 1923 creates a presumption in favour of the employee for the listed diseases in the listed employments, which is a substantial practical advantage of the statutory route.

6. Workplace Stress and Psychiatric Injury

• The duty extends to psychiatric injury where it was reasonably foreseeable in the particular employee.
• The test is the foreseeability of injury to health, and not merely of occupational stress, which is an ordinary feature of demanding work and is not actionable.
• The question is always whether this kind of harm to this particular employee was reasonably foreseeable, which requires either an indication from the employee himself, or circumstances so plain that the employer should have acted without one.
• An employer is ordinarily entitled to take what he is told at face value. He need not make searching enquiries into an employee's mental health, and is entitled to assume that an employee who says he is coping is coping.
• But the position changes once he is put on notice, by an episode of illness, by a complaint, by a period of absence, or by a marked deterioration in the employee's work or conduct.
• What the employer must then do is what is reasonable in the circumstances, having regard to the size of the undertaking, the resources available, the interests of other employees and the practicability of the steps suggested. An employer who offers a confidential counselling service and reasonable adjustments will rarely be in breach.
• The subject overlaps nervous shock, examined in TORT 038, though the employee is a primary victim and the Alcock control mechanisms do not apply to him.

7. The Position Stated Shortly

1. An employer owes his workmen a personal and non delegable duty of care, distinct from vicarious liability.

2. Wilsons and Clyde Coal Co. v. English holds that the duty to provide a safe system of working is the employer's own and cannot be delegated.

3. The employer remains liable though he entrusted performance to a competent person, and the decision outflanked the defence of common employment.

4. The heads are competent fellow employees, adequate plant and equipment, a safe system of work, and a safe place of work.

5. A system must be enforced and not merely devised, and equipment provided and allowed to decay has not been provided at all.

6. The standard is reasonable care and not a guarantee of safety, but it rises with the gravity of the risk.

7. Contributory negligence applies with allowance for the inattention that repetitive work produces, and volenti is generally unavailable against an employee.

8. In occupational disease the difficulties are causation, met by material contribution to risk, and limitation, since the damage is latent.

9. The duty extends to psychiatric injury where injury to health was reasonably foreseeable in the particular employee, and not merely occupational stress.

10. An employer may take what he is told at face value until he is put on notice, and must then do what is reasonable having regard to his resources and the practicability of the steps suggested.