Accident and Injury at Work – ‘Employers Liability Negligence Claim
Chris Brunt is a Gibraltar personal injury lawyer, a barrister and acting solicitor of the Supreme Court of Gibraltar who will consider all personal injury claims on a No Win No Fee basis. Contact me for a free consultation to see if I can help you win the compensation you are entitled to. Use the contact form here and I will get back to you to discuss your claim.
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You are entitled to claim compensation in Gibraltar, (otherwise known in law as damages) if you suffer personal injury or have an accident at work, and that injury was caused by your employer’s negligence. In such a case your employer will be liable to pay damages. This would mean that you would be entitled to claim a compensation payment in respect of your injury and all the associated losses as a result of the injury, including financial losses, past and future. A successful personal injury claim in negligence will usually be settled by your employer’s insurance company.
Injured at work.
As indicated above, If you are injured at work in Gibraltar your employer may be liable for your injury on the basis of a breach of statutory duty, for example, the Management of Health and Safety at Work Regulations 1996, or by common law negligence which this post briefly discusses
In Gibraltar, the most successful way of claiming for your workplace injury is by showing that your employer had breached a duty imposed on them by legislation. However, a common law negligence claim is often pleaded on behalf of the injured employee alongside the claim for a breach of the employer’s breach of statutory duty. This is to ensure an injured employee’s claim covers every possibility and to maximise the chance of successfully winning a claim for personal injury.
I discussed breaches of statutory duty for personal injury in an earlier post. While this post deals with the law for personal injury for employees injured by the negligence of their employer, you may also find some useful information on employment rights for personal injury at work in my employment law blog.
Claim for personal injury at work caused by an employer’s negligence
An employer is under a duty to take reasonable care of an employee’s health and safety in the course of their employment to reduce the risk of personal injury. This will include such things as providing equipment to protect employees from injury, for instance, personal protective equipment otherwise known as PPE, as well as health checks if the employee is working in a particularly dangerous field; and medical equipment to lessen the risks of injury.
The duty imposed on an employer was stated in the House of Lords case of Wilsons & Clyde Coal Co v English [1937] UKHL 2. This UK authority required the employer to ensure that they exercised due care and skill in the following four areas, that is the employer should provide:
- Competent staff, including fellow employees and supervisors
- Adequate plant and equipment
- A safe system of work
- A safe place of work.
Competent staff – How can an employer be liable for injury caused by a fellow employee?
A Gibraltar employer can be vicariously liable for the acts of his employees. An employer can also be directly liable under the common law duty of care which it owes to the employee. Firstly, vicarious liability is where responsibility for an injury caused by a fellow employee can be imposed on the employee, that is if the injury is caused by the fellow employee in the course of their employment. Alternatively, the employer may be directly liable. It can theoretically be the case that an injured claimant brings their claim against both the employer and the fellow worker who directly caused their injury. However, the most usual way an injured claimant brings their personal injury claim is solely against the employer direct; if for no other reason the employer will be guaranteed to have the resources to meet any damages or compensation payment for the personal injury of the claimant via their Employers Liability Insurance cover, and which an employer must have by law. Also, while not covered in this post, Gibraltar employees are protected by statutory duties which set out various duties of care and which only their employer owes them, and which are not owed by employees who cause injury to fellow employees.
So, the duty imposed on the employer is to take reasonable care to provide competent employees. You will notice however that an employer only has to take reasonable care.
Who could be incompetent staff for the purpose of this duty of care? This could include fellow workers who are not adequately qualified, properly trained, or indeed simply staff inexperienced in the task undertaken and that caused the injury. Even a fellow worker who on the face of it may be suitably qualified but who caused an injury by workplace pranks that go wrong may well not be considered a competent worker.
As such the employer’s liability for any direct breaches of their duty of care under this head in negligence can in part be determined by the employer’s reasonable knowledge of what they knew or should have known about the fellow worker who caused the injury. However, it might be extremely difficult for an employer following a workplace accident to assert that they were not reasonably aware that a certain employee of theirs was not suitably trained in the task for which they were employed, and which caused a fellow worker’s injury.
Adequate plant and equipment – in order to reduce risks of workplace injury
The Gibraltar employer also has a common law duty to provide equipment and resources at work which are adequate for the tasks for which they are required or used. It will be obvious that if, for instance, machinery is not adequately maintained, which would include it being properly repaired and/or regularly serviced, and as a result, it caused an accident and a worker suffered personal injury; then the employer may be liable for the negligent breach of this duty. Again, note that the employer only has to take reasonable action to ensure the ‘plant and equipment is adequately safe and in good order when provided and reasonable steps to ensure it is properly maintained.
Plant and equipment includes anything you use at work from your computer work station or the chair to the more obvious machinery or tools used at work.
When a court looks at the employer’s practices as to whether work equipment or plant has been maintained adequately it will consider such matters (depending on the equipment or plant concerned), records which evidence such matters such as servicing frequency, and any report that may exist of any defects in the plant or equipment, and if there were defects documentation of what actions the employer took to rectify or replace any damaged plant or equipment. Any records of previous workplace accidents with the plant or equipment. This is not an exhaustive list but gives a flavour of how a court (in the event a personal injury claim does not settle beforehand) will establish whether or not an employer has adequate plant or equipment.
One of the major causes of workplace accidents is a lack of personal protective equipment. For example, safety equipment such as (where necessary) safety glasses, hard hats, and safety gloves. An employer should reasonably consider all necessary adjustments or assistance necessary to diminish the risk of accidents causing personal injury in the workplace including, where reasonably necessary, the provision of adequately maintained ergonomic chairs to reduce the risks of office staff developing injuries associated with long-term seating posture.
A safe system of work – In order to reduce risks of accidents and workplace injury.
For a Gibraltar employer to escape liability for an employee’s injury at work, where relevant, it must demonstrate that it had in place a safe system of work. A safe system of work will include such considerations as to the layout of the workplace, and how exactly the work in the office or factory is undertaken. Whether the system of working allows for any safety measures. How exactly is the work undertaken by the workforce? Are there relevant warning signs? This is by no means an exhaustive list but illustrates that an employer’s duty extends to ensuring that its work systems or business practices are safe with a view to reducing to a reasonably acceptable level the risks in the workplace to its employees.
Safe Workplace – It is a requirement that a workplace should be reasonably safe.
Again, such examples again are not an exhaustive list but can include the adequate provision of safety exits, ensuring areas in the corridors of an office, factory or building are kept free from clutter and which reduce the risk of tripping and associated injury to employees. Also, ensuring that workplace floors are not slippery and that any spillages are quickly identified and dealt with.
What then is required of a Gibraltar employer?
To understand the common law duty of care imposed on a Gibraltar employer it is important to realise that they only have to act reasonably. What is reasonable will vary depending on individual circumstances, though it is right to say that a high standard will generally be required. The employer should always be alert to the risk of injury to his employees and should take steps to remove the risk entirely, or reasonably reduce the risk to keep it to an absolute minimum.
In a claim for personal injury if an employer can show that despite their employee being injured in a workplace accident, and while at all times there admittedly existed a risk of injury, they had acted reasonably in the circumstances to identify and reduce those risks which caused the employees injury, then a claim in negligence against the employer for personal injury will fail.
Summary – Employer Liability Claims
This post has briefly outlined by way of introduction what are the common law duties of care that a Gibraltar employer owes its employees. As we have seen one of the elements necessary for an injured employee’s negligence claim for personal injury to succeed is that the employer must have breached his duty of care. There are other requirements that the injured employee must establish and certain defences that an employer may raise and which will be discussed in later posts.
Because a claim in negligence for personal injury potentially allows more wriggle room for an employer to defend a claim (as will be seen in later posts), most employer liability claims for personal injury in Gibraltar are also brought as alleged breaches of the employer’s statutory duty, and which are discussed in a separate post. This approach is allowed because it is submitted that there is a right to make a claim in the civil jurisdiction of the Supreme Court of Gibraltar for an employer’s breach of statutory duty by virtue of regulation 23 of the Management of Health and Safety at Work Regulations 1996
No Win no Fee
Chris is a personal injury barrister and acting solicitor of the Supreme Court of Gibraltar who specialises in personal injury law and representing clients who have been injured by someone else’s negligence or breach of statutory duty. Chris considers all cases of personal injury cases on a no win no fee basis and offers clients a conditional fee agreement where he is able.
Contact Chris for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA, on 200 73900 to discuss your personal injury claim and to see how he can help you win the compensation you are entitled to
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site: Chris Brunt Barrister – Gibraltar Personal Injury Lawyer (personalinjurylawyergibraltar.com
