Employer’s Liability – when will employers remain liable?

The overreaching responsibility of employers for the safety of their employees whilst at work, is a staple of health and safety law, rendering employers liable even when they may not be the direct cause of an accident.  The recent case of Radoslav Pashamov v Leon Taylor & Edward Vinson Limited is the latest example of this. 

The incident

Mr Pashamov was employed by the second defendant EV Limited (EV) as a fruit picker. He, along with other employees, exclusively used a bus operated by EV to travel between his lodgings and the fields, although he was not obliged to use it.  After the bus stopped to pick up fellow workers, Mr Pashamov alighted and started to cross the road to let those other workers know the bus had arrived, when a car driven by the first defendant, Leon Taylor, collided with him, causing serious head and other injuries. It was found that Mr Pashamov had chosen to cross in front of the bus when he would have been in shadow and failed to look in the direction of Mr Taylor before he ran across the road into the path of the vehicle which had been travelling at no more than 30 - 40 mph.

The driver's role

Clearly in this case, the direct cause of the accident was the collision between Mr Pashamov and Mr Taylor’s vehicle, and the burden of proof was on Mr Pashamov to show that Mr Taylor failed to attain the standard of a reasonable careful driver, thereby causing the accident. It was found as fact that oncoming traffic had obscured Mr Taylor’s view of Mr Pashamov until a second before the collision. The expert evidence suggested that a reasonably competent driver would be expected to react within 1.5 seconds of identifying a hazard; any slower reaction would fall below those standards. The Court found, as Mr Pashamov had failed to show that Mr Taylor could have swerved safely to avoid the collision, or taken other steps in time which would have reduced or eliminated the injuries, Mr Taylor had not fallen below the required standard. 

Retained employer liability

Of greater interest in this context, is the retained liability of the employer.  Whilst EV had sought to argue that Mr Pashamov was not ‘at work’ when his accident occurred, as the judge in this case pointed out, circumstances can exist in which an employer can be liable to an employee notwithstanding that paid working time has ended. If the employee is doing something that is reasonably incidental to the employment, then the employer will retain ongoing duties. In this case, it was not disputed that someone was expected to let the workers know the bus had arrived to collect them. The judge was satisfied that Mr Pashamov was either directly instructed, or expected, to let the fellow workers know that the bus had arrived, and that realistically this had to be done by Mr Pashamov physically crossing the road. Such tasks being at the direction of, and for the benefit of, his employer, and taking place whilst Mr Pashamov was on the way back to his lodgings meant he was engaged in activities “incidental to his employment”.  As such, EV continued to owe a duty of care towards him.

Negligence and breach of duty 

Following on from that, the judge held that EV had negligently breached that duty by expecting Mr Pashamov to cross a road with a 60mph speed limit and with no designated safe crossing place.  EV’s own risk assessment had recorded the risks associated with the bus drop-offs as high, and their own control measures included restricting pick-ups and drop-offs to designated locations.  Where the bus had stopped was not one of those designated points.  It was found that there had been safer places for the bus to stop which would have avoided the need for Mr Pashamov to cross the road. It was likely that the reason why the driver had not used the designated locations was because vehicles had been blocking the usual access route. In the circumstances EV was liable, either for failing to advise the driver of the risk assessment and requirement to pick up only at designated points, or on the basis that they were vicariously liable for the driver who chose to ignore those control measures and park where he did. The accident was entirely foreseeable given those circumstances. 

Contributory negligence and conclusion