The breach of statutory duty. No liability if employee refuses to
wear safety devices.
A civil right of action for a Breach of Statutory Duty arises if it is shown that (inter alia) the damage or injury was caused or was materially contributed to by the breach.
Factories Act 1937
A steel erector fell seventy feet from a steel tower in the building of which he was assisting. He was killed by the fall and his widow and administratrix (one who administers the estate of an intestate) claimed damages from his employers for negligence and from the occupiers of the shipyard in which the tower was being built for breach of statutory duty under the Factories Act 1937, s26(2), in failing to provide a safety belt for use by the steel erector. If a safety belt had been worn by the deceased he would not have been killed by the fall. The deceased was an experienced steel erector, and on the evidence it was highly probable that he would not have worn a safety belt if one had been provided. The employer had normally made safety belts available but, as they were not being used much on this particular site, the belts had been taken away for use elsewhere.
It was held by the House of Lords that assuming that the employers and the occupiers of the site were in breach of their respective duties in not providing a safety belt, nevertheless they were not liable in damages because their breach of duty was not the cause of the damage suffered since (a) on the evidence the deceased would not have worn a safety belt if it had been provided, and (b) there was no duty on the employers to instruct or exhort the deceased to wear a safety belt.
Before a claim for damages for breach of
statutory duty can succeed, the employee must prove that the
employer’s action or inaction caused the injury. If the employer can
show that the employee brought the injury upon himself by failing to
take advantage of the safety measures then no liability will fall
upon the employer. In a case where safety measures are not provided
or are not available, the employer will still escape liability if it
can be shown that the employee would not have used them even if they
had been available.
There are four steps to proving causation in a case like this:
1. There existed a duty to supply a safety belt
2. There was a breach of that duty
3. That if there had been a safety belt the employee would have used it
4. That if the employee had used it he would have suffered no injury or a lesser injury than he did.
If one of these links in the chain of causation is broken a claim for damages must fail. Furthermore, there is no rule that employers are under a duty to insist that employees do actually use safety devices.
Don't forget this is Factories Act 1937, s26(2), what would be the courts decision if it happened now?