Negligence

The common law of negligence should be observed when prescribing or issuing equipment. It is called common law because its rules are not found in legislation but in legal judgements. In England and Wales , it is part of the law of torts and in Scotland the law of delict.

Standard Negligence Test

The test for negligence is commonly referred to as comprising three main questions:

a) Was there a duty of care between the alleged perpetrator of the accident (an employer in the case of employee injury, or service provider in the case of non employee;

b) Was that duty breached through carelessness or lack of reasonable competence and

c) Was harm directly caused by that breach of duty?

Those given the responsibility for prescribing and issuing equipment should be aware that the test of carelessness concerns whether they can make a reasonably competent decision and that they acted competently.

This test for carelessness makes it absolutely necessary for decisions about the equipment provision to be based on clear and informed reasoning which is then documented so that they are in a position to defend their decisions at a later date. For a case of negligence to be upheld, it would have to be necessary to demonstrate that the issuer of equipment acted in such as way that no other assessor of ordinary skill and competence would have done. It is very important that the assessors for community equipment should not undertake tasks beyond their competence.

Vicarious Responsibility

An employer organisation might find themselves vicariously liable on behalf of the individual negligent tasks of it’s employees or staff and liable for it’s failure as an organisation.

Contributory Negligence

Even when an employer is found to be overall responsible for an accident in negligence, the Courts sometimes find that an employee has contributed to his or her own misfortune i.e. they have not followed a risk assessment and damages payable are reduced accordingly.