crane driver suffered injury because the employee of the hirer failed to warn him, while the crane was being moved, of the proximity of an overhead electric cable? On these facts, the employer would not, as in McDermid, be denying the duty of care, but would be claiming that it could not be vicariously liable for the negligent conduct of someone not in its employment. (b) Can an express term override the implied duty of care? One of the questions which had to be addressed in the following case was whether the employers’ duty to take reasonable care, being an implied duty, could be overridden by an express term of the contract of employment. JOHNSTONE v BLOOMSBURY HEALTH AUTHORITY [1991] IRLR 118

doi:10.4324/9781843140504-84

Chapter

crane driver suffered injury because the employee of the hirer failed to warn him, while the crane was being moved, of the proximity of an overhead electric cable? On these facts, the employer would not, as in McDermid, be denying the duty of care, but would be claiming that it could not be vicariously liable for the negligent conduct of someone not in its employment. (b) Can an express term override the implied duty of care? One of the questions which had to be addressed in the following case was whether the employers’ duty to take reasonable care, being an implied duty, could be overridden by an express term of the contract of employment. JOHNSTONE v BLOOMSBURY HEALTH AUTHORITY [1991] IRLR 118

Chapter

crane driver suffered injury because the employee of the hirer failed to warn him, while the crane was being moved, of the proximity of an overhead electric cable? On these facts, the employer would not, as in McDermid, be denying the duty of care, but would be claiming that it could not be vicariously liable for the negligent conduct of someone not in its employment. (b) Can an express term override the implied duty of care? One of the questions which had to be addressed in the following case was whether the employers’ duty to take reasonable care, being an implied duty, could be overridden by an express term of the contract of employment. JOHNSTONE v BLOOMSBURY HEALTH AUTHORITY [1991] IRLR 118

ABSTRACT

The employee claimed that the employers were under a duty to take all reasonable care for his safety and that they were in breach of that duty by requiring him to work intolerable hours. Before the case went to trial, the master granted the employers’ application under rules of the High Court to strike out that part of the claim which sought a declaration that the claimant could not lawfully be required to work for more than 72 hours. However, Mr Bennett QC, sitting as a deputy High Court judge, allowed the claimant’s appeal. On a further appeal to the Court of Appeal that court, by a majority, held the employers could not lawfully require the claimant hospital doctor to work so much overtime in any week as it was reasonably foreseeable would damage his health, notwithstanding the express terms of his contract. The following extracts are taken from the judgment of Stuart-Smith LJ, beginning at p 120:

The effect of this [contractual] provision is that the plaintiff is required to work a basic 40 hours a week and the Authority are bound to provide and pay for 40 hours a week. In addition, however, the plaintiff is required to be available, on call, for up to a further 48 hours on average. This means that in some weeks he may have to work considerably more than 88 hours in total, though the average must not exceed this each week taken over a period. It is also worth noting that payment for any hours worked over 40 are somewhat unusually not paid at a higher rate than the basic pay, but at one-third of this rate.