Using the template below, answer these questions in this case, following the same format as the sample paper below.

A was employed with B as a labourer in January 2014, and while so employed, he fell from a moving trailer attached to a tractor being driven by a servant/agent of the B and died. At the time the tractor drove at speed over a hump in the road; the deceased fell off the trailer onto the ground. A later succumbed to his injuries. A's relative claimed that B, its servants/agents breached the duty of care which it owed A thereby causing his death. Students are asked to discuss B's liability under the following heads:

1. The common and statutory law as it relates to B's liability;

2. The requirement by A's representative to show that B's action has fallen short of the standard of care required of a prudent and reasonable employer.

3. The specific statutory duties imposed on an employer under the Occupational Safety and Health Act, Chapter 88:08, ("the OSHA").

SAMPLE PAPER

At common law, employers have a duty to take reasonable care for the safety of their employees during the course of their employment, including a duty to provide competent staff, proper plant and equipment, a safe place of work, and a safe system of work. The employer's duty is not an absolute one to prevent any and all injury to the employee. Rather, the standard of care required of an employer is to take reasonable steps to provide a system that will be reasonably safe, having regard to the dangers necessarily inherent in the operation. Where an employer breaches this duty and an employee suffers injury, loss, and/or damage as a result, the employee is entitled to claim against the employer for monetary damages, including payment for pain and suffering, loss of amenity, loss of past and future earnings and the cost of past and future medical and other expenses (Ramnarine, 2021).

The duties of the employer are set out in the legislative framework governing workplace health and safety called the Occupational Safety and Health Act, 2004. The Act imposes a general statutory duty on every employer to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of all its employees. An employer's potential liability under the Act is twofold. The Act itself imposes penal sanctions and penalties for breaches of the Act, and the employee may also bring civil proceedings against the employer for breach of statutory duty. Therefore, this paper aims to highlight and discuss the duty of care owed by employers and employees in the workplace in relation to the case of Donoghue v Stevenson as well as the OSH Act, 2004.Donoghue, a Scottish dispute, is a famous case in English law that was instrumental in shaping thelaw of tortand the doctrine of negligence in particular.

A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability for breach of obligations (Cornell Law School, n.d).The most common is the tort ofnegligencewhich imposes an obligation not to breach the duty of care, that is; the duty to behave as a reasonable person would behave in the circumstances, which the law says is owed to those who may foreseeably be injured by any particular conduct (Thomson Reuters).A duty of care is a legal expression of the responsibility of a person or organization to take all reasonable measures necessary to prevent activities that could result in harm to other individuals and/or their property. It can also be viewed as a person's responsibility not to harm others through carelessness as to avoid doing something that could hurt someone else. For example, a driver on the road has an obligation to other road users to not cause an accident by driving carelessly, in other words, they have a duty of care to other road users.The legal basis for finding a duty of care originated in the case Donoghue v Stevenson [1932] AC 562.

Donoghue v Stevenson [1932] AC 562 House of Lords

OnAugust 26, 1928,Mrs. Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs. Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs. Donoghue suffered personal injury as a result.Mrs. Donoghue was not able to claim through breach of warranty of a contract as she was not a party to any contract. Therefore, she commenced a claim against Stevenson, the manufacturer of the ginger beer, which made its way up to the House of Lords.

Issues inDonoghue v Stevenson:

The question for the House of Lords was if the ginger beer manufacturer owed Mrs. Donoghue a duty of care in the absence of contractual relations contrary to established case law.

Held:

Mrs. Donoghue's claim was successful with the House of Lords leading the judgment delivered by Lord Atkin. The decision had several components:

1. Negligence is distinct and spate in tort
2. There does not need to be a contractual relationship for a duty to be established
3. Manufacturers owe a duty to the consumers for who they intend to use their product.

As per the result of Donoghue's case, a product must not be so defective that it causes injury to those who may be expected to use it in the ordinary course of things.Furthermore, the primary outcome of this case established the modern law of negligence and developed the neighbour principle by Lord Atkin. "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour".Lord Atkin in Donaghue v Stevenson [1932] AC 56.

Moreover, under the duty of care, your neighbour isn't the person who lives next door to you but is anyone who may be closely and directly affected by your act or failure to act, in other words, negligence. Negligence arises when the duty of care is breached. Someone is negligent when they have failed to uphold the duty of care owed to another, which has caused damage or injury to that person.

The OSH Act 2004

The Operational Safety and Health Act has provided crucial benefits to labour relations in Trinidad and Tobago. After a number of avoidable high-profile safety-related incidents occurred in the early 2000s greater emphasis was placed on ensuring compliance with regulations and safety mandates. The OSH Act was created to reduce workplace hazards and implement safety and health programs for both employers and their employees. Furthermore, the OSH act clearly dictates regulations pertaining to the provision of protective clothing and devices, removal of dust and fumes, and safeguarding of machinery. Guidelines relating to the provision of a means of escape in case of fire are also explicitly identified in the Act. Moreover, requirements that focus specifically on cleanliness, lighting, overcrowding, noise, and vibration, and the medical examination of employees were mandated by the act. In essence, it ensures that the promotion of safety and health does not hinder business performance, productivity, and efficiency in addition to addressing employee rights and issues such as sufficient protection and avenues for redress in accordance with the law and just industrial relations practices.

The Act states under the duties of manufacturers and suppliers that,

"A person, who designs, manufactures imports or supplies any technology, machinery, plant, equipment or material for use in an Industrial Establishment, shall ensure that they are safe and without risks to health when properly used. These persons are to provide adequate information on its use to ensure that it will be safe and without risks to health or the environment when properly used".

Additionally, employers and employees both have legal obligations to each other. The development of the health and safety stipulations under the OSH Act provides a plethora of benefits in the protection of employees from harm. The entire premise and applicability of the Act is to ensure that industrial institutions, in both the private and public sectors, adequately manage health, safety, and welfare in the workplace with the use of the legal compliance requirements as a minimum standard.

The Duty Of Care Owed By Employers And Employees In The Workplace

All in all, an employer's liability for damage or injury to its employees covers a range of statutory and common law dutiesplaced upon an employer in order to protect its employees against hazards or injury at work. Generally, employers owe their employees a duty to take reasonable care for their safety and this duty is personal to the employer and nondelegable, which means that the employer cannot escape liability by claiming to have passed on the responsibility for the employee's safety to another party. Additionally, subject to the requirement of reasonableness, this duty of care also extends to employees working away from the employer's premises, which may include employees working off-site.Since "the OSH Act" casts further obligations on an employer for the protection of its workmen, any employer who fails to comply with the duties as required by statute can be held liable for breach of statutory duty and for specific breaches of the OSH Act.This is particularly topical now in the era of Covid-19 as employers have an even greater responsibility and duty to protect and safeguard their staff, especially their frontline workers who interact with the public.

Moreover, there is a fair degree of overlap between the common law protection which has developed over the years like in the legal precedents of Donoghue, and the statutory protection introduced by the OSH legislation.It must be noted however that Employer's Liability reflects the ordinary principles of negligence, in that, only injuries that have been sustained by a failure to take reasonable care will give rise to liability. Furthermore, the obligations of an Employer only arise where an employer/employee relationship exists and it extends to those acts which are reasonably incidental to the employment. According to section 4 of the OSH Act, an "employer" is defined as:

"... a person who employs persons for the purpose of carrying out any trade, business, profession, office, vocation or apprenticeship"

In common law, this duty of an employer has been elaborated to involve the following four categories of specific responsibilities:

1. The duty to provide a competent staff of men
2. The duty to provide adequate plant, materials, and equipment
3. The duty to provide a safe system of work and safe working practices
4. The duty to provide safe premises and a safe place of work

On the other hand,section 4 of the said Act, also defines an "employee" as;

"... any person who has entered into or works under a contract with an employer to do a skilled, unskilled, manual, clerical or other work for hire or reward, whether the contract is expressed or implied, oral or in writing or partly oral and partly in writing, and includes public officers, the protective services and teachers"

Duties of the employee include but are not limited to:

1. to take reasonable care for the safety and health of himself and others at work
2. to cooperate with his employer so far as necessary
3. to report to his employer any unsafe health and safety conditions or practices at work
4. to use correctly the PPE provided for use
5. to exercise discretion with respect to refusal to work
6. to ensure that he is not under the influence of any intoxicant to the extent that he can endanger himself or others

Similarly, the Donoghue case, established the liability of manufacturers to consumers with whom they did not have a direct contractual relationship. It stipulated that businesses ought not to be negligent in their daily operations and they are obligated to observe a duty of care towards their customers.

Conclusion

The concept of "duty of care" has long been established even before the famous 1932 caseofDonoghue -v- Stevenson. It was accepted that certain classes of individuals owe a duty of care to others.If the court finds that one party has a duty of care to a second party, and if the second party is injured as a consequence of the negligence or breach of statutory duty of the first party, the courts may well find the first party to be responsible for the injuries and award compensation. An employer has a duty of care towards his employees and must take reasonable care to protect them from foreseeable harm. This duty of care, however, cannot be delegated to another person or organization. There is a legal obligation to safeguard others from harm while they are in your care, using your services, or exposed to your activities. Based on these analyses, in the same way, a hospital owes its patients a duty of care, a business owner owes his employees a duty of care, as well as visitors, customers, and people nearby.

References

Donoghue v Stevenson [1932] AC 562 House of Lords. Donoghue v Stevenson. (n.d.). Retrieved June 1, 2022, fromhttp://www.e-lawresources.co.uk/Donoghue-v-Stevenson.php

Occupational Safety and health - legal affairs. (n.d.). Ministry of the Attorney General and Legal Affairs Retrieved June 2, 2022, fromhttps://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/88.08.pdf

Ramnarine, C. (n.d.). Workplace Health and Safety: The laws all employers should know. Workplace Health and Safety the Laws All Employers Should Know. Retrieved June 2, 2022, fromhttp://trinidadlaw.com/workplace-health-and-safety-the-laws-all-employers-should-know/

Teacher, Law. (November 2013). Donoghue v Stevenson [1932] Doctrine of negligence. Retrieved fromhttps://www.lawteacher.net/cases/donoghue-v-stevenson.php?vref=1