Safety of the Employees: Duties under Common Law

In Smith v. Baker & Sons ([1891] A.C. 325), Lord Herschell states, inter alia,

“It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper apliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk”.

In Nicholls v Austin (Leyton) Ltd.([1946] 2 All E.R. 97) Lord Wright states, inter alia,

“That the common law duty exists in proper cases is unquestionable.  But it is limited to reasonable exercise of care and skill to guard againts danger which as reasonable people, the employers ought to have anticipated”.

In Paris v Stepney Borough Council ([1951] 1 All E.R. 42), Lord Oaksey states, inter alia,

“the duty of an employer towards his servant is to take reasonable care for the servant’s safety in all the circumstances of the case”.

In Teong Wee Meow v. Goh Poh Chan & Anors ([1981] 2 MLJ 136)(Federal Court), the appellant employed the deceased persons and other persons to dig a well for the pigs on the appellant’s land near his pig-sty. While working in the well the deceased persons were overcome by gaseous fumes and vapours from the well resulting in their deaths. It was alleged that the appellant was negligent in failing to provide a safe place of work or safe system of work. Earlier a worker working in the well had fainted and the appellant knew this. It was therefore claimed that the appellant knew that the place was unsafe and he failed to warn the deceased persons of the dangerous condition of the well which he knew or ought to have known. The learned trial judge found for the respondents and the appellant appealed. Held: in this case there was overhelming evidence to show that the appellant knew the presence of gaseous fumes from the well and the learned trial judge was right in holding that the appellant was wholly liable for the deaths of the persons.

The court in Bamfield v Goole and Sheffield Transport Co Ltd ([1910] 2 KB 94) states,

 “when the defendants shipped ferro-silicon on board a keel belonging to the plaintiff’s husband, and the ferro-silicon gave off poisonous-fumes which killed her husband and injured the plaintiff herself, it was held that the defendants were liable to the plaintiff although they were ignorant of the danger arising from ferro-silicon.”

In Aikbee Sawmill Ltd v Mun Kum Chow ([1971] 1 MLJ 81)(Federal Court), the plaintiff/respondent had claimed damages for personal injuries caused to him in the course of his employment with the appellants. The respondent and another workman were engaged in loading planks on a lorry of the defendants. The workers did not use cross-bars in loading the planks and had not been instructed to do so. Some of the planks which had been stacked on the lorry toppled over and struck the plaintiff. It was alleged that the accident was caused by the negligence of the appellants, their servants or agents and/or breach of the appellant’s duty to provide a safe system of work. The learned trial judge held that there was evidence that the work was one where dangers were necessarily inherent in its operation and that therefore there was a duty on the part of the defendants/appellants to provide a reasonably safe system so as to protect the workmen from unnecessary risk and to give adequate instructions. He therefore gave judgment for the respondent. The defendants appealed and the only ground of appeal was that there was no finding of contributory negligence on the part of plaintiff/respondent. It was alleged that the respondent was aware of the purpose of using cross-bars in loading the planks and of the consequential danger of not using them and he was therefore negligent in not using them. Held, dismissing the appeal: the evidence in this case showed that no instructions had been given to the workers that they must use cross-bars but rather that they were left to their own devices to load the planks. In the circumstances the respondent could not be said to be negligent in not using the cross-bars and therefore the learned trial judge was right in giving judgment for the respondent.