Introduction to Health and Safety at Work

work
L
a w
C
r imina
l
C ivil
C
ommon
L
a w
C
ommon
L
a w
S
ta
t
ute
L
a w
S
ta
t
ute
L
a w
Sub
-d
ivisions of L
a
w
Criminal Law
Civil Law

---

Health and safety foundations
7
my mind to the acts or omissions which are 
called in question.
It can be seen, therefore, that for negligence to be 
established, it must be reasonable and foreseeable that 
the injury could result from the act or omission. In practice, 
the Court may need to decide whether the injured party 
is the neighbour of the perpetrator. A collapsing scaffold 
could easily injure a member of the public who could be 
considered a neighbour to the scaffold erector.
An employee who is suing his employer for 
negligence, needs to establish the following three criteria:
➤
a duty was owed to him by his employer since 
the incident took place during the course of his 
employment
➤
there was a breach of that duty because the event 
was foreseeable and all reasonable precautions had 
not been taken
➤
the breach resulted in the specifi c injury, disease, 
damage and/or loss suffered.
These tests should also be used by anyone affected by 
the employer’s undertaking (such as contractors and 
members of the public) who is suing the employer for 
negligence.
If the employer is unable to defend against the three 
criteria, two further partial defences are available. It could 
be argued that the employee was fully aware of the risks 
that were taken by not complying with safety instructions 
(known as 
volenti non fi t injuria
or ‘the risk was willingly 
accepted’). This defence is unlikely to be totally success-
ful because courts have ruled that employees have not 
accepted the risk voluntarily since economic necessity 
forces them to work.
The second possible defence is that of ‘contribu-
tory negligence’ where the employee is deemed to 
have contributed to the negligent act. This defence, if 
successful, can signifi cantly reduce the level of compen-
sation (up to 80% in some cases).
Any negligence claim must be made within a set 
time period.