Withers v Perry Chain Co Ltd

An employer must take reasonable care for an employee’s safety, having regard to any known susceptibility. That duty does not require the employer to prevent a competent adult from undertaking work which carries a small disclosed risk, or to dismiss the employee rather than permit the work. The employee may weigh that risk against the value or necessity of employment.

Known susceptibility may require extra or special precautions where such precautions are reasonably available. Liability may also arise where an employer conceals relevant risk information. A materially different allegation of negligent working practices should not ordinarily be introduced for the first time on appeal where the employer would require a new trial to meet it.

The plaintiff developed dermatitis while employed by the defendant manufacturer. After her first absence, she returned with a medical certificate declaring her fit for work. The defendant transferred her to what it believed was its driest suitable assembly work, but further outbreaks followed.

Stevenson J found the defendant negligent in permitting her to continue that work despite a small risk of recurrent dermatitis and awarded approximately £480 in damages. The defendant appealed. The plaintiff sought to uphold the judgment on a different basis: that components had not been properly dried and that the defendant’s servants had negligently exposed her to lubricating suds.

The central issues were whether the employer had a duty to prevent a willing adult employee from undertaking work involving a small risk, and whether the alternative negligence case could be raised on appeal.

1. Appeal allowed unanimously. Sellers LJ and Devlin LJ delivered reasoned judgments. Danckwerts LJ agreed with both. The judgment for the plaintiff was set aside, with costs here and below.

2. Per Sellers LJ, the employer’s duty was to take all reasonable care for the plaintiff in her employment. That standard required regard to her previous dermatitis, but imposed no additional duty to dismiss her or refuse her employment merely because the work involved some risk. The defendant had transferred her to what it genuinely considered the driest suitable work and had attempted to assist her. On the case pleaded and tried, no breach of the ordinary duty of care was established.

3. Per Devlin LJ, an employer has no legal duty to prevent a competent adult employee from doing work which she is willing to undertake merely because it carries a small risk. The employee may weigh that risk against the desirability or necessity of employment. The relationship is not paternal: the employer is neither obliged to offer alternative safe work nor bound to dismiss the employee rather than permit her to accept the risk.

4. Devlin LJ recognised that different considerations might arise if an employer concealed relevant risk information, failed to provide information needed for an informed evaluation, or impliedly warranted that particular work was safe. On the principle discussed in Paris v Stepney Borough Council, known susceptibility might also require extra or special precautions. Those matters did not determine the appeal because they were not the pleaded breach and no available additional precaution had been identified.

5. The plaintiff could not introduce on appeal a materially different case that individual operators, or those supervising them, had negligently allowed wet components to reach her. That allegation was absent from the statement of claim, had not been decided at trial, and was not supported by a timely cross-notice. Fairness would have required the defendant to receive an opportunity to call further evidence, leading to a new trial. The court refused leave, having regard to the course of the trial, the merits and the amount involved.

1. Court of Appeal: Allowed the defendant employer’s appeal unanimously. It set aside the finding of negligence and refused leave to advance a new allegation requiring a retrial.

2. High Court, Stevenson J at Swansea: Found that the employer had negligently permitted the plaintiff to continue driving-sleeve assembly work after May 1956 and awarded approximately £480 damages. No citation is stated in the judgment.