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Liability and the reasonable man

11th May 1995, Page 50
11th May 1995
Page 50
Page 51
Page 50, 11th May 1995 — Liability and the reasonable man
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Accidents can happen—and when they do, the consequences can be very expensive. Few people realise the risks they run in everyday business and personal life, but anyone can be sued if they cause loss or injury to any other person as a result of an act of negligence.

Under English Law, if someone acts (or Fails to act) in a way which falls below the standard of care that would be expected of "the reasonable man" he is negligent. If that negligence causes injury or loss to another person, then that person is entitled to recover damages to compensate for the loss and injury. If a driver is reversing his vehicle, foils to see a pedestrian and knocks him down, that driver is personally liable. The vehicle's operator, like any other employer, will be liable for acts of negligence of his employees providing they are acting in the course of their employment. An agency driver for these purposes is an employee. The operator will even be liable if the employee is doing something which the operator has told him not to do, providing it is within the course of his employment.

For example, if an employer tells his driver to check the vehicle every morning, and the driver fails to do so, the employer will be liable if an accident occurs as a result of a mechanical defect which the driver should have spotted. Because the driver has been negligent, the employer will be liable.

An employer also has a duty to his employees. As long ago as 1891 it was held that there was a contract between an employer and those he employs. This imposes on the employer a duty to take reasonable care, to provide proper plant and equipment, and to maintain them in a proper condition. He must carry on his business operations in such away as not to subject those employed by him to unnecessary risk of injury. In other words, he must take reasonable care for the health and safety of his employees. If he fails to do so, he will be liable to compensate any employee who is injured as a result.

If, as an operator, you buy cheap secondhand equipment for your workshop to save money and it fails, causing injury, you will be liable. The duty upon employers to provide proper plant and equipment was made even wider by the Employers Liability (Defective Equipment) Act 1969.

This makes all employers liable in every case where an employee sustains personal injury in the course of his employment if that injury is caused by any defect in the equipment provided by the employer. Courts have made it very clear that they will interpret the word "equipment" as widely as possible. Equipment could include the vehicle itself. Equally it might include something as small as the pen which the driver is given to write up his notes. Under the Act it is no defence to show that the defect was caused by another person and that the employer could not possibly have known of the defect prior to the accident. You will be liable automatically for any latent defect in any piece of equipment which causes injury to an employee. The operator in his turn will almost certainly have a right of action against the supplier or the manufacturer of that equipment. But that right of action will almost certainly, again, be based on contract. Most operators will be familiar with standard terms which limit liability of suppliers. Indeed, many operators will themselves trade under RHA or similar conditions.

English Law, however, does offer some cause for optimism. It is not possible under English Law for anyone to exclude or limit liability for death or personal injury by a contract. Whatever terms and conditions are applied by the supplier or manufacturer of the equipment, ii they supply defective equipment to you which causes death or personal injury, then that liability cannot be excluded by contract.

Finally, many operators may well not appreciate their liability under the Occupiers Liability Act to anyone who visits their premises.

Under the Act any occupier of premises is liable for injury caused to any people lawfully on those premises such as an HGV workshop. That includes anyone casually visiting the premises who is not a trespasser. In fact the occupier of premises can even be liable for injury caused to a trespasser, particularly if that trespasser is a child or young person.

As usual, forewarned is forearmed. All operators and all employers of labour should ensure that they are aware of the potential risks. Most importantly, they should carry proper insurance cover against all such eventualities.

J by Nick Collins

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