Chapter 6. Employers’ Liability

• Pages: 168-178

The basis of the liability of an employer for negligence in respect of injury suffered

by his employee during the course of the employee’s work is twofold:

(a) he may be liable for breach of the personal duty of care which he owes to each

employee;

(b) he may be vicariously liable for breach by one employee of the duty of care which

that employee owes to his fellow employee.1

PERSONAL DUTY OF EMPLOYER AT COMMON LAW

The common law duty of an employer to his employees was enunciated in Davie v

New Merton Board Mills Ltd2 as a duty to take reasonable care for their safety. The

duty is not an absolute one and can be discharged by the exercise of due care and

skill, which is a matter to be determi ned by a consideration of all the circumsta nces

of the part icular case.3

The duty is a non-delegable one, and the employer is accordingly not absolved

from his responsibility by t he employment of an independent contractor.4

It is well established that every employer has a duty at common law to provide:

(a) a competent staff of men;

(b) adequate plant and equipment;5

(c) a safe system of working, with effect ive supervision;6 and

(d) a safe place of work.7

1 See Chapter12. An example is Nurse v Trinidad and Tobago Electricity Commissio n (2000) High Court,

Trinidad and Tobago, No S 3037 of 1993, where the defendant was liable both for failure to prov ide

a safe system of working and v icariously liable for the failure of its forema n to supervise his crew

(per Morean J). A similar re sult was reached in Lawrence v Ch annus Block and Marl Quarry Ltd [2013]

JMSC Civ 6 (employer liable for failure to provide safe system of worki ng and vicariously liable for

negligence of one employee causing in jury to another employee). The ruling in L awrence is unusual

in that, having found t he employer vicariously liable for the employee’s negligence, Sykes J went

on to hold the employer to be entitled to a contribut ion from the negligent employee, and that the

contribution was to be ‘the total su m of damages awarded against’ t he employer (following Lister v

Romford Ice & Cold Storage Co [1957] 1 All ER 125 (HL)).

2 [1959] 1 All ER 346.

3 United Estates Ltd v Durrant (1992) 29 JLR 468, at 470, per Wolfe JA .

4 Courage Construction Ltd v Royal Ban k Trust Co (Jamaica) Ltd (1992) 29 JLR 115 (Court of Appeal,

Jamaica), at 120, per Rowe P; Pumps and Irrigation Ltd v Pusey (1995) 32 JLR 326 (Court of Appeal,

Jamaica), at 343, per Downe r JA.

5 Hill v Super Plus Trucking and Equipment Ltd [2020] JMSC Civ 239.

6 Wilsons and Clyde Coal Co v English [1938] AC 57, at 78, per Lord Wright.

7 This passage in the text was cited by A nderson J in Reid v Mobile Welding and Engineering Works Ltd

(2007) Supreme Court, Jamaica, No CL 2000 R-030.

CHAPTER 6

EMPLOYERS’ LIABILITY

DOI: 10.4324/9781 35106 5108 -6

10.4324/97813 5106 5108 -6