Chapter 16Employing labourculpability of each of them. This greatly simplifies the
matter for the claimant, who might otherwise have dif-
ficulty in establishing which employers were liable and
to what extent. However, the House of Lords did not
follow Fairchildin a later case where a differently con-
stituted House took the view that it was fairer that each
employer should be liable only for his share of the dam-
age (see Barkerv Saint Gobain Pipelines plc(2006)).
The ruling in Fairchild was restored by s 3 of the
Compensation Act 2006.Employer’s defences
1 Contributory negligence. Contributory negligence is
available as a defence to an employer in a claim brought
against him by an employee who says he has been injured
because of his employer’s negligence.501
the organisation which made the equipment. However,
this does not affect the employer’s right to claim that the
injury was caused by the contributory negligence of the
employee. Where the defect in the equipment is the fault
of the manufacturer, the employer, having been sued for
damages by the employee, can himself sue the manufac-
turer to recover from him any damages awarded to the
employee. The employee can also sue the manufacturer
direct if he chooses to do so.
Safe system of work
An employer is required to set up a safe way of working.
It is also the duty of an employer to enforce the safe sys-
tem once having set it up. Thus, where an employee may
suffer damage to his eyes by flying sparks, as in welding,
the employer must provide goggles or a face guard and
introduce a system of supervision to ensure, as far as he
can, that the protective equipment is being used by the
relevant workforce.
Sometimes the duty on the employer is a high one.
For example, it was held in Crouchv British Rail
Engineering Ltd(1988) that where the work which an
employee does puts him regularlyat risk of damage to
the eyes then it is not enough to provide goggles from a
central store at the workplace. Goggles must be given
to the employee and form part of his tool kit which he
carries with him. He should not be required to go and
fetch goggles from the store each time the job he is doing
requires him to protect his eyes by using goggles. His
employer was held liable for damages because the em-
ployee, a maintenance engineer, was not given goggles
‘into his hand’. His damages were not reduced because
according to the court there was no contributory negli-
gence (see below).
Problems of causation
One of the major developments in the liability of
employers for injury to their employees came in the
landmark ruling of the House of Lords in Fairchild v
Glenhaven Funeral Services Ltd(2002). The House of
Lords ruled that where a claimant has contracted a dis-
ease from exposure to asbestos over a period of time
during which he has had several employers, all of whom
may have in some degree exposed him to asbestos, the
claimant may claim against any one of them for the full
amount of the damage, leaving the employer who has
paid to seek a contribution from the other employers
who may have been involved and settle the amount of
contribution on the basis of what is decided to be the
Cakebreadv Hopping Brothers
(Whetstone) Ltd (1947)
The employer of the claimant, who was engaged in a
woodworking factory, had failed to see that the guard on
a circular saw was properly adjusted and the claim-
ant, who worked the saw, was injured as a result. How-
ever, it appeared that the claimant did not like working
the machine with the guard properly adjusted and he
had arranged with the foreman that the saw should be
operated with an improperly adjusted guard. The court
decided that the employer was in breach of his duty of
care, but also that the claimant had failed to exercise
the care of a prudent employee for his own safety and
reduced his damages by 50 per cent.2 Assumption of risk by the employee. This is unlikely
to provide the employer with a successful defence these
days since it is now the law that just because an em-
ployee knows of the risk he cannot for that reason be
regarded as having consented to it.Smithv Baker & Sons(1891)Smith was employed by Baker & Sons to drill holes in
some rock in a railway cutting. A crane, operated by fel-
low employees, often swung heavy stones over Smith’s
head while he was working on the rock face. Both Smith
and his employers realised that there was a risk that the
stones might fall, but the crane was nevertheless oper-
ated without any warning being given at the moment that
it began to swing the stones over Smith’s head. Smith