The standard expected of a reasonable and prudent employer in employer liability cases is frequently the subject of both legal and factual dispute. In industrial disease claims, where the knowledge of the connection between working conditions and injury has often developed incrementally over long periods of time, this is of particular importance.
Firstly, it should be said that the standard is to be judged based on the knowledge available at the time, not subsequent developments. In Maguire v Harland & Wolff Plc  EWCA Civ 1, Judge LJ set out (at 21):
“When considering criticisms of actions and omissions forty years ago we have, always, to warn ourselves against the wisdom of hindsight, and recognise the potential unfairness of using knowledge accumulated during the last forty years which, by definition, was not available to the defendants.”
The Standard in areas of Developing Knowledge
In Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Limited  1 W.L.R. 1776, a claim was brought by the widow of an employee who had been exposed to a number of mineral oils. Between about 1950 – 1965 the deceased had to lean over machines with the effect that the mineral oil would saturate and impregnated his trousers, and so the groin area. In 1965 the deceased developed a cancerous tumour to the scrotum from which he died at the age of 43. That this risk existed was identified in a leaflet from the Factories Inspectorate in 1960, and periodic examinations were recommended. Such examinations were not put into place at the deceased’s place of work, although a single talk (which the deceased did not attend) was given in 1963.
In setting out the standard by which the employer should be judged, Swanwick J said (at 1783):
“…the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probably effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”
This remains the starting point for assessment of the standard.
Further Consideration of the Expected Standard
The point was further considered in Thompson v Smiths Shiprepairers (North Shields) Limited  Q.B. 405, a case which I have already written about. The case concerned the point at which the employer ought to have been aware of the effects of exposure to excessive levels of noise and was in a position to do something about it. Here, the point was developed by Mustill (415 – 416):
“…Swanwick J. drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed “without mishap.” Yet even the plaintiffs have not suggested that it was “clearly bad,” in the sense of creating a potential liability in negligence, at any time before the mid-1930s. Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris v. West Hartlepool Steam Navigation Co. Ltd.  A.C. 552 . The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow.”
In many cases the standards expected of a reasonable and prudent employer are clear.
However, from time to time, it is necessary to consider these paragraphs and how they might apply to a particular case. An example being low-level asbestos exposure in the 1960s/ 1970s.
In the next article, I shall consider the question of whether it is necessary to know that the particular condition which a claimant developed was reasonably foreseeable, or merely that some (albeit different) form injury was reasonably foreseeable.
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