Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - EMPLOYER’S LIABILITY AT COMMON LAW
EMPLOYER’S LIABILITY AT COMMON LAW (11th Edition) by J. Munkman, LL.B., Barrister (M. T.). Butterworths, London (1990, Ixxvii and 655 pp., plus 6 pp. Appendices and 20 pp. Index). Hardback £60.
Munkman never actually says this book is about damages for injury at work. Of course, there is a sense in which “Employer’s Liability” means civil, not criminal, liability. Before 1974 it probably did not matter much. We all happily confused safety legislation with methods of obtaining compensation for injury. Robens did such a magnificent job in pointing out the unfortunate consequences of that and isolating one from another that it is surely now necessary to distinguish between them. It seems safe to conclude that Munkman does indeed intend us to assume that he is wholly concerned with civil liability for damages. There can be no other reason why he devotes only 21 lines to s. 2 of the Health and Safety at Work Act 1974 (Munkman says the “etc” is pedantic) and deals only with the construction of the “Factories Act and similar statutes” (pp. 212–218) but devotes more than 40 pages to the fencing sections alone.
No other reason, that is, save that it is obvious that Munkman’s style is not the pursuit of high and generalized principle. Above all, he is a cataloguer of specifics—that is to say, of case law which civil liability has spawned in rich profusion but the 1974 Act, surprisingly successfully, eschews. It is this desire to systematize the particular that has, to the delight of the reviewer and many others, always characterized this book. Now (p. 82), as in the 7th Edition of 1970 (p. 77) which I have before me, the author says:
This duty [of the employer to take reasonable care for the safety of his workmen] extends in particular to the safety of the place of work, the plant and machinery, and the method and conduct of the work: but is not restricted to these matters.
True; but would not a nod be in order towards the fact that 60 years ago the approach was somewhat altered? Munkman nods: “the House of Lords have generally treated the employer’s duty as a simple duty to exercise reasonable care, adding, where appropriate, a reference to method of work, place of work or plant …”. He does not seem unduly impressed, though he does condescend to call most of the remaining exposition of the law of negligence, arranged under the old world charm of these specific headings, “Illustrations”. The author might well say the quibble over the approach was pedantic and not be surprised that few pedants agreed with him.
One has to admit that the continuing strength of this book derives from this system of cataloguing specific examples, which, incidentally, suits the long history of the piecemeal approach of the Factories Acts better than it does the modern history of the law of negligence. Munkman is a master of the art. One can almost see the card index containing the penetratingly succinct analysis which ensures that one never forgets each point of detail. It could be argued, he says, that the route away from your place of work to the toilet is covered by the duty to maintain safe access to work since, should you turn round and retrace your steps, it will be. You wonder how Davies v. De Havilland (which, typically, the author delves in his catalogue to back up with Rose v. Colvilles 1950 S.L.T. (Notes) 72) failed to notice that
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