• Robert Spicer

Negligence and health and safety: leading cases (2)

Foreseeability

Pearson v J Ray McDermott Diving International Inc (2009)

P was employed by J. He was attending to a diver from a derrick barge by bringing in the cable which carried the diver’s air supply and communication line. The cable snagged and became taut. P stated that he was instructed by his supervisor to continue bringing in the cable. He applied additional force and was injured. He claimed compensation from J on the following grounds:

· J should have known that if P was instructed to haul in the diver, he would obey.

· J should have known that if P was told to haul in a snagged line, which was physically impossible, he would be likely to suffer loss, injury and damage.

· It was J’s duty to take reasonable care to see that P was not required to haul in a taut cable.

· When he was given repeated instruction to haul in the diver, he was entitled to assume that the cable was free and naturally applied extra force.

· The diving supervisor had failed to take reasonable care to check that the cable was free before repeating his instruction to continue hauling.

The Scottish court dismissed the claim and made the following points:

· No causal relationship had been established any failure on the part of the employer and P’s injury.

· There was no evidence of a foreseeable risk of injury to P.

· Although it could be assumed that there had been a accident and that P had used unusual force, there was no evidence that he had been given instructions to pull the cable with any unusual urgency or force.

· P had not alleged that there had been an inherently dangerous system of work and there was, therefore, no reason to consider that his actions involved any foreseeable risk of injury.

Character building course

Patel v Shaylor Partners (2001)

P was employed by S. S instigated a character-building outward-bound training course which P attended with a group of workmates. The course included an activity in which P was held by two colleagues as he swayed backward and forwards. P slipped and a colleague fell on him, causing P to suffer a fractured leg and dislocated knee. P alleged that the ground had been slippery and the area of the course was dangerous. He claimed compensation from S.

The claim failed. There was no evidence that the swaying exercise was dangerous. The weather conditions and the conditions underfoot were not dangerous. S had been carrying out such exercises for a long period and there had been no other accidents. On the balance of probabilities it had been acceptable for the activity to proceed.

Loss of earnings following demotion

Casey v Morane Ltd (2001)

C was injured at work when he lost a finger in machinery. Two months later, following a disciplinary hearing, C was fund guilty of gross misconduct related to the incident in which he was injured. He was demoted and suffered a loss of annual income of £5500. Two years later he started proceedings in negligence against his employer. The matter was settled by consent on the basis of 85 per cent liability for the employer and 15 per cent for C. At a hearing to decide the amount of compensation, C claimed the loss of earnings which had resulted from his demotion. The judge awarded this amount subject to a 15 per cent reduction for contributory negligence. The employers appealed to the Court of Appeal. That court dismissed the appeal and made the following points:

· Where an employee in a position of responsibility adopted a dangerous working practice, and the employer did not know about or condone the practice, the general rule was that the employee could not recover compensation for loss of earnings following demotion after proper disciplinary proceedings.

· In the present case the judge had been entitled to conclude that C’s loss of earnings had been caused by the accident and had been attributable primarily to the employers’ breach of duty.

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