Responsibility for Unsafe System of Work
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IDISCUSSED last week some aspects of an employer's liability arising out of the faulty condition of his vehicles or equipment. In this article it is intended to carry the matter further and deal with that modern nightmare of litigation to the employer and his legal advisers—the allegation that an unsafe or improper "system of work" was responsible for the accident (or even illness in some circumstances) for which he is being sued.
The duty to provide a "safe system of work " is the third of the three duties ots the employer which were listed in the previous article, and it has a somewhat vague and nebulous air about it which stems from its origin. It was invoked originally„wherever possible, to counter the defence of "common employment," which was raised by employers when an accident to an employee was caused through the negligence of a fellow employee.
Nowadays, whenever an employer is sued in respect of an accident, after all the usual allegations of negligence have been made, it is generally thrown in for good measure, and as a sort of " omnibus" allegation to cover everything not already thought of.
System Defined
It has been said in the Court of Appeal that the system )f work "may include the physical lay-out of the job— [he setting of the stage, so to speak—the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices and the issue of ;pedal instructions."
Clearly, different considerations may arise from day :o day where the exact nature of the work varies, and rom the operators' point of view it is probable that a ;eries of illustrations ffom decided cases may indicate lot only the general nature of the duty but also partiillar instances of obvious application to their own cases.
The general nature of the duty is perhaps best nstanced by the leading House of Lords' case on the .ubject—Wilsons and Clyde Coal Co. v. English (1938). In that case a miner leaving his shift was crushed against he side of the road by the haulage plant being started 3p before he had time to reach a refuge hole, and it was ield that it was an unsafe system of work for the plant
o be started while a shift was leaving work, and that t was the employers' personal duty to prevent it.
A vehicle cleaner in a transport depot has recovered lamages for an unsafe system when struck by a vehicle IS it was parking, owing to the absence of a white line
o ensure that it did not come too close; and in a Scottish ;ase liability was based on the way in which vehicles vere parked in another transport depot so as to create in artificial blind corner.
These are excellent examples of a system where the roper co-ordination and inter-relation of two departnents or two different types of work has not been roperly thought out.
Methods employed in the loading and unloading of rehicles and of carrying exceptional loads are obviously >1 immediate interest to operators. Two cases—one
falling each side of the line as regards employers' liability —may be quoted. In Winter v. Cardiff Rural District Council (1950) a heavy-voltage regulator was being carried on a lorry but was not secured to it, and when it fell off, the plaintiff, who was riding On the vehicle, was injured.
The House of Lords held that the method of loading the lorry was a routine matter within the chargehand's discretion, and that the accident was not due to a failure of "system of work." On the other hand, in Rees v. Cambrian Wagon Works, Ltd. (1946), where a machine was being dismantled and a heavy cog wheel was being removed by means of a plank and wedge, and the wheel overturned and injured one of the workmen, it was held that "the operation was one which required proper organization and supervision' and the employers had failed to provide them.
The dividing line between these two cases was very slight, for both loads were of similar weight, and in one sense the handling of any heavy load of such a nature is a matter involving danger; probably the clue is to be found in one of the judgments where the test of whether a specially organized system was necessary was said to be where the load or operation involved was either "complicated or unusual."
Accordingly, it seems that where a heavy load is handled or transported on a single occasion, special organization and precautions will be necessary only if it is complex or unusual, but obviously no employer will be safe from liability if he habitually permits heavy loads to be handled in a careless or slipshod manner.
Recently there has been a positive spate of reported cases of employees seeking damages from their employers for a defective system of work in loading or unloading vehicles—especially at the docks. If it is of any encouragement to operators, it can be reported that in almost every case the plaintiff failed in his action, but this was generally because the court found that the employee was himself responsible for the accident.
Employers' Duty
The duty to provide a proper system remains, and as was pointed out by Lord Justice Denning in a recent case—" If employers take all proper steps and give all proper instructions, they have done all that they can; and if the men do not obey them it is the men's own fault; but the employers must, first of all, take all proper steps to protect their men and give them proper instruction."
Lastly, what is the test by which an employer's actions will be judged? Is it the general standard of safety and care practised by other similarly placed employers, or is it a special standard to be applied to each possible set of circumstances arising?
The answer is that both tests should be applied. Recognized and approved practice in the industry is obviously the first criterion by which an employer must be judged, but over and above that may be a higher standard of care needed if the ordinary standard falls short in the face of some obvious or proved danger.