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Every employee has the right to safety


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Every employee has the right to safety. This must be ensured by employers so that
employees do not suffer stress and illness as a result of working at a specific establishment. In

Duty of Care and Employers Liability 2
recent times, there have been many court suits related to psychiatric illness. However, it has been
and it is still difficult to embrace the whole idea of people suffering psychological torture. There
is difficulty as well on how to address the notion of psychiatric illness and how this could be
tackled with to avoid floodgates in court suits on the subject (Prosser & Keeton 2004). Some say
that people owe those around them a duty of care. The truth of this statement is yet to be
established as there should be factors to be considered before holding someone liable in breach
of the duty of care. Imposing a duty of care on people unknown to each other would sound unfair
and misinformed. The foregoing thus calls for a criticism of the concept of psychiatric illness and
liability whatsoever that arises there-from.

Sources of Law

The term sources of law relates to where the rules originate from. What dictates what the
law should be may also be a source of law. The law my come from the Constitution. In many
countries, the constitution is considered the mother of all the laws of the respective land. Other
laws borrow from the main body of law-the constitution (Chemerinsky 2011). If there is any
conflict between the Constitution and any other law then the Constitution will and has always
taken precedence.
Common law is also another source of laws. Common law is the laws that were
developed through the observation of the customs of the English people and developed through
judicial decisions. In most cases where there is no law providing for any remedy, then the
common law would be looked upon for a solution.
Legislation is another source of law. These are laws made by Parliament- the legislative
arm of a democratic state. Legislations have to pass through set procedures and would in most
cases become law upon being assented to by the authorized person, the head of state in most

Duty of Care and Employers Liability 3
cases. Apart from the Constitution and legislation we have case law as a source of law. Case law
is the law developed by courts when interpreting the statutes passed by Parliament. Case law
may at times be referred to as judge-made law.

Tort Law and Negligence

The law of torts covers the relationship between persons (Ratanlal and Dhirajlal 2013). It
is the law that seeks to give remedy for wrongs committed by persons against their neighbors or
anyone defined by the law. Through the law of torts the aggrieved parties can get damages for
injury suffered as a result of the tortuous acts of those they interact with on daily basis. Tort law
also covers contractual relationship between parties (Abraham 2012). Through it, parties to a
contract can enforce their civil rights and those accused of violating the civil laws would be
liable for either damages or any other remedy provided by the Courts of Law (Franklin & Cardi
Negligence on the other side is the failure to act in a way that any reasonable person
would have acted if faced by the same circumstances (Blyth vs. Birmingham Waterworks 1856).
Negligence mostly arises out of failure to act as required. For instance, a driver is supposed drive
carefully knowing that he might cause injuries to others if he drove recklessly. Liability in
negligence arises if the driver does not take reasonable measures to ensure he drives safely. Also
related to this is the test for reasonableness (Bolitho vs. City & Hackney Health Authority 1997).
In employment relations, there has to be a contract for employment between the alleged
employer and employee. Through the offer and acceptance of the rights and duties arising from
employment, a contractual relationship arises and binds the parties to that contract (Diamond &
Levine 2013). One of the duties owed to each other is the duty of care. The employer owes the
employee a duty of care, to protect the employee by making the working environment conducive

Duty of Care and Employers Liability 4
for the work required. Similarly, the employee owes the employer the duty to perform every part
of the job carefully and as highlighted in the contract of employment.

Duty of care

Duty of care may be defined as taking responsibility for those around you in a situation
where those people rely on you. In determining if there is a duty of care owed some factors must
be considered. There has to be a relationship between the plaintiff and the defendant
(Ranchhodas & Keshavlal 2003). Some sought of proximity would be vital if established before
deciding where liability arises. Relying or depending on someone for some shielding would be
important in establishing a duty of care. In the same direction, it would be necessary to establish
if the duty of care is in fact owed (Hodgson & Lewthwaite., 2012). It is after this that the element
of breaching such a duty of care owed to another that some liability may be imposed.
Liability Of Employers For Psychiatric Illness Of Employees.

Issues concerning post traumatic stress can be traced to 1897 (Wilkinson vs. Downton)
Employers are in most cases profits-oriented. All they seem to care about is the huge profits their
companies should make. They therefore care less about the welfare of the employees and subject
employees to pressure to be productive despite most instances of poor working conditions. This
causes the workforce to be exposed to potentially bad risks of physical health and mental torture.
In view of the foregoing, there has to be a regulatory framework to provide for psychiatry related
illness experienced by employees most specifically as a consequence of working under stressful
environments (Vincent 2009, p 45).
Failure in adhering to the duty of care was much covered in the death of a man in
Northumberland. The man’s employers had ignored the safety requirements set by the law.
Managers must not be so relaxed when the safety of employees is the subject. Installation of

Duty of Care and Employers Liability 5
basic safety measures should be a priority to any employer. (Murphy & Cooper 2000) The
families of such employees who die while at work due to poor working environment are left with
no option but to sue for the negligence. In-spite of suing, it is evident that no monetary
compensation can equilibrate the life lost. For lawyers who argued for the availability of
negligent infliction of stress they could not make it as they were told to leave lawmaking to
legislature (Piresferreira v. Ayotte).
Lives lost or psychological trauma as a result of employment has to be incorporated to
cater for the mental health of the employees. Employees should be compensated heavily. We
should see all workers that suffer psychological stress as a result of poor working conditions get
compensated as was the case in the law enforcement officers in Hillsborough (Diamond &
Levine 2013).
A shift from the unfair compensation for injuries sustained at work only should be
embraced. Bodily injuries are not independent from the overall functioning of the body system
and should not be the only basis for compensation (Edwards, Edwards & Wells 2011). Breaking
ones arm does not only render the injured disabled but it also affects injured persons mentally as
they would have to find a way to start living without an arm. This tortures a person mentally and
has to be considered when awarding damages (The American Law Institute 2013).


In conclusion, the rules and laws protecting the employees from work related injuries
should shift from the old rules that only covered employees against physical bodily injuries to
provide for psychiatric illness suffered as a result of poor working conditions. There has to be
stricter rules and penalties for employers who violate safety policies required by the law as
relaxing on this matter would mean continued neglect of employees’ rights.

Duty of Care and Employers Liability 6


Chemerinsky, E (2011), Constitutional Law: Principles and Policies. 4 th Edition

Duty of Care and Employers Liability 7
Ranchhodas, R & Keshavlal, D (2003), English And Indian Law of Torts. Cornell University
Vincent, A (2009), Death in the Work Place; Management Services.
Murphy, L R & Cooper, C L (2000), Health and Productive Work: An International Perspective.
London. Taylor & Francis.
Blyth vs. Birmingham Waterworks (1856). Exchequer.
Bolitho v City & Hackney Health Authority [1997]. HL.

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