Читать книгу Occupational Health Law - Diana Kloss - Страница 52

The OH professional will have a contract with the organisation which employs him, so he will have duties both in contract and in tort. If he is employed under a contract of employment, the law implies many obligations into the relationship which form part of the agreement even if nothing has been said or written. The duty of trust and confidence discussed in Chapter 7 is a good example of an implied term. One other significant duty is to take care in carrying out his job. In a case in 1956, one employee negligently injured another by reversing a vehicle into him on the employer’s premises. The employer paid compensation to the injured employee and claimed on his employer’s liability policy. Insurance companies have a right of subrogation, i.e. they take over all the rights which the insured person had when they pay out on the policy. Acting in the name of the employer, the insurance company sued the careless driver for all the loss which he had caused his employer by his negligence. The House of Lords decided that negligent employees have a duty to compensate their employer for the damages he has been forced to pay because of their carelessness (Lister v. Romford Ice and Cold Storage (1957)). After establishing the point of principle, the insurance companies indicated that they would not in future reimburse themselves by pursuing employees, unless there was wilful misconduct or collusion. Also, in the later case of Morris v. Ford Motor Co. (1973), the Court of Appeal refused to allow an insurance company to sue the driver of a forklift truck who had negligently injured the employee of a subcontractor.

Thus, where an employer is insured against liability to his employees caused by the negligence of directly employed OH personnel (as is required by the Employers’ Liability (Compulsory Insurance) Act 1969), it is unlikely that an indemnity will be obtained by the employer’s insurance company from the health professional’s protection society or professional indemnity policy. Before 1990, hospital doctors working in the NHS were required by their contracts of employment to take out policies with defence organisations so that the employer could obtain indemnity if the doctor was negligent. This system was abandoned from 1 January 1990 (HC(89)34).