Is the Employer Liable?
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Part One By Our Legal Adviser
WHEN anyone meditates about the possible consequences of accidents involving vehicles on the highway, he instinctively thinks of the danger of having to compensate the "other fellow" with whom, or with whose vehicle, his own has been involved in collision. But at least as important from an employer's point of view may be the possibility of liability to one's own employee who is driving, or being driven in, one's own vehicle at the time.
The duties of an employer in respect of the safety of his employees has undergone an immense change in the past 100 years. Nowadays it is difficult to pick. up anewspaper without seeing reported some case of an employee who has suffered injury in the course of his employment seeking to recover damages from his employer. Naturally, any prudent man or company is fully insured against such claims, but it is certainly as well to know the extent of an employer's duty in the light of modern decisions, particularly since the advent of legal aid has enabled many employees to prosecute claims to the bitter end that formerly would have been settled for a small sum or forgotten, unless the man's union were persuaded to take up his claim.
To take first what is probably the easiest case, the possibility of which must always be present in an operator's mind—the case of the negligent driver whose passenger is injured in the course of an accident. If that passenger is a complete outsider who is not in the operator's employ, special considerations will arise as to liability according to what right he had to be on the vehicle at all, and these considerations have been previously discussed here. But if the passenger is also in the employ of the operator and was lawfully riding on the vehicle, then he can successfully sue the employer.
"Common Employment"
This was formerly not so. as the doctrine of "common employment "--so much hated by, and the rightful target of, the trade unions--prevented it; the unfortunate passenger would be left with his worthless and distasteful remedy against his fellow workman.
Since 1948, however, "common employment" as a defence open to.an employer has been abolished, and the passenger in the example could sue the employer for the negligence of the Tatter's servant or agent as much as if the negligence were directly that of the employer.
All that is simple and, probably, is now generally appreciated. But what may not be so obvious is that an employer is equally liable in respect of an accident caused by some preventable defect in the vehicle, and such liability will extend to injuries caused not only to third parties involved in the accident but also to both the passenger and driver in the example already given. This form of liability is only one aspect of an employer's general duty to take care of his employees' safety which has been laid down as consisting of taking reasonable care, and using reasonable skill, "first, to provide and maintain proper machinery, plant. appliances and works; secondly to select properly skilled persons to manage and superintend the business: and thirdly, to provide a proper system of working." It may be interesting to see how the provision and maintenance of vehicles fits into this general piCture as evidenced by certain examples. An employer will undoubtedly be liable to his employee where he has failed to provide a suitable and safe vehicle—that is, in the first instance as opposed to questions of maintenance. The authority for this proposition is an °Id one—from the pre-motor vehicle era—where an employer provided the plaintiff with a horse which he knew to be vicious and which kicked and broke the employee's leg.
This particular instance of failing to provide safe "plant" was followed as recently as 1944 when a municipal corporation was sued by an employee who had been supplied with a horse for his dust cart which was known to be liable to bolt. Applying this authority to motor vehicles, an employer will have failed to fulfil his duty if he provides a vehicle which by its design or construction is either dangerous or unsafe by itself or else manifestly unsuitable for the particular use to which it is to be put.
"Reasonable Care"
Probably more important, however, to operator employers is their duty to maintain their vehicles in a safe condition, apart from their duty to do this under statutory regulations or in conformity with the conditions of their licences. If injury to an employee is attributable to a defect of maintenance that does not immediately amount to negligence on the employer's part. The test is one of "reasonable care," and the guide in establishing whether such care has been exercised must usually be that of "general and approved practice" amongst ordinary prudent persons.
Clearly the employer's main task in carrying out his
duty of care in maintenance is to lay down a regular routine system to be followed. But this is not sufficient —it must not only be laid down but enforced as far as possible, efficient supervision being important. It is suggested that no system of maintenance can (in law) be regarded as being adequate to discharge the duty of care unless at least the following are embodied in it: (1) Daily inspection and test. to check ordinary " running order "; (2) Minor and major inspections at• regular intervals, the latter involving complete ovezhauls; (3) Calling for defect reports from drivers; (4) Discarding of all worn out parts and equipment regularly; and (5) Repairs and servicing being carried out without delay.
In Baker v. James (1921) a company was held liable for injury to a traveller of theirs who suffered injury from cranking the company's car when the handle was defective after he had reported the defect—a perfect example of failure to repair a known defect. In Barkway v. South Wales Transport Co., Ltd. (1950) the House of Lords held the company to be negligent because they had failed to instruct their drivers to report incidents which might cause a hidden tyre fracture.
Lastly, it may be pointed out that there is much to be said from the employer's standpoint, where such a system is possible, of making each driver responsible for the maintenance of his own vehicle.
An employer is, however, according to the House of Lords, entitled to expect that his employee will himself remedy simple defects in whatever plant or machinery he is using: