6 - Negligence: Employers' Liability & Vicarious Liability

Question 1

What is the general nature of the duty owed by an employer to their employees regarding safety at work, as defined by case law?

Answer 1

Employers have a duty to take reasonable care for the safety of employees while at work.

The House of Lords in Wilsons & Clyde Coal Co Ltd v English identified this duty as comprising four separate duties:
1. To provide competent staff.
2. To provide adequate material (plant, equipment, and machinery).
3. To provide a proper system of work and supervision.
4. To provide a safe place of work (added in Latimer v AEC Ltd).

These duties are non-delegable, meaning the employer cannot escape liability by delegating these responsibilities to others, including independent contractors or employees.

Question 2

What does it mean that the employer’s duty of care to employees is ‘personal’ and non-delegable?

Answer 2

The employer’s duty is ‘personal’, indicating that it is based on a close, trusting relationship between employer and employee.

This means that the employer remains liable for any negligent performance of duties, regardless of whether they delegated tasks to others.

Employees do not need to identify specific blame for an accident; they can assert that an event or situation demonstrates a breach of the employer’s common law duty.

Question 3

What is the employer’s duty regarding the provision of competent staff, and how is it established in case law?

Answer 3

An employer has a duty to provide employees with competent fellow workers.

This duty arises when the employer knows, or ought to know, about a particular worker’s risk to others.

Example: In Hudson v Ridge Manufacturing Co Ltd, the employer was held liable after a claimant was injured due to a colleague’s known dangerous horseplay, which had been repeatedly reprimanded.

The risk may involve psychological as well as physical harm, highlighting the importance of addressing workplace bullying.

Question 4

What does the employer’s duty to provide adequate plant and equipment entail?

Answer 4

Employers owe a duty to provide employees with adequate plant and equipment, encompassing all tools and machinery necessary for the job.

Failure in this duty covers:
- Inadequate equipment already provided (e.g., due to wear, lack of maintenance, or safety devices).
- Failure to supply all necessary equipment for the job.

Example: If a factory has machines that are dangerous due to age or defects, the employer must ensure all machinery is safe and adequately maintained.

Question 5

What does the Employer’s Liability (Defective Equipment) Act 1969 entail for employees injured by defective equipment?

Answer 5

The Act allows employees to sue their employer for breach of the duty to provide adequate equipment without needing to identify the manufacturer of the defective equipment.

To succeed in a claim, the injured employee must establish:
- Fault on the part of the third party (such as the manufacturer).
- Causation, demonstrating that the fault caused the employee’s injury.

This provision simplifies the legal process for employees by attributing liability to the employer for equipment-related injuries.

Question 6

What is the employer’s duty regarding a safe system of work, and what does it include?

Answer 6

An employer owes an employee a duty to provide a safe system of work. This is the widest and most frequently invoked branch of the employer’s duty and includes:
- The physical layout of the job.
- The sequence in which the work is carried out.
- Providing training, warnings, notices, safety equipment, and special instructions.
- Addressing cases where an employee suffers stress due to a lack of a safe system.

It requires employers to take reasonable steps to ensure compliance, including:
- Providing adequate training.
- Ensuring supervision, especially at the outset.
- Monitoring compliance with the system.
- Taking disciplinary action against non-compliance.

The employer must continuously assess risks in the working environment.

Question 7

What is the employer’s duty to provide a safe workplace, and how does it differ from statutory duties?

Answer 7

An employer owes an employee a duty to provide a safe place of work, confirmed in Latimer v AEC Ltd [1953]. This duty overlaps with the statutory duty under the Occupiers’ Liability Act 1957 but is more onerous for the employer because:
- The employer’s common law duty is non-delegable, meaning they cannot transfer responsibility to independent contractors.
- The common law duty applies regardless of the location of work, necessitating assessments of any premises to identify dangers and implement safety systems.

Question 8

How does the employer’s duty to provide a safe system of work extend to stress-related claims?

Answer 8

The duty to provide a safe system of work extends to stress as confirmed in Walker v Northumberland County Council [1995]. The Court of Appeal established that the threshold for duty arises when injury to health through work-related stress is reasonably foreseeable. The guidelines from Hatton v Sutherland [2002] state that courts should consider:
- The nature and extent of the employee’s work, such as workload and absenteeism.
- Signs from the employee indicating stress levels, as employers can generally assume employees can handle normal job pressures.

For example, if an employee, Bilal, previously suffered from stress due to workload and this was foreseeable, the employer would have a duty to take preventative steps upon his return to work.

Question 9

What constitutes a breach of the employer’s duty in negligence?

Answer 9

An employer is in breach of duty if it fails to meet the standard of care expected of a reasonable employer, assessed by:
- Considering all circumstances of the case, including foreseeable risks and the practicality of precautions.
- The duty is personal and non-delegable, stemming from a close relationship of mutual trust with employees.

Example: In Paris v Stepney Borough Council [1951], the employer had to take extra precautions for an employee with a unique risk factor (having only one sound eye), as they were aware of the risk involved.

Question 10

What is the significance of the HSWA 1974 (Health and Safety at Work etc Act 1974) in relation to employer duties?

Answer 10

The HSWA 1974 provides regulations for health and safety in the workplace, including risk assessments and employee training. Breach of these regulations is a criminal offence, but:
- They are not actionable in civil claims unless stated otherwise.

However, they remain relevant in negligence claims as they guide the assessment of breach of duty. The court will evaluate:
- What risks the employer ought to have foreseen.
- What precautions the employer ought to have taken in response to those risks.

Compliance with statutory regulations is indicative of the standard of care expected from a reasonable employer.

Question 11

What must be established in relation to causation after proving an employers breach of duty?

Answer 11

After establishing a breach of the employer’s duty of care, the following must be considered regarding causation:
- The concepts of novus actus interveniens (new intervening acts) and remoteness of damage must be applied.
- This involves applying usual tests to determine if the breach caused the injury, and many leading cases on causation arise from claims against employers.

Question 12

What are the main defences an employer might raise in negligence claims?

Answer 12

The main defences raised by an employer in negligence claims include:
- Consent: The argument that the employee voluntarily assumed the risk.
- Contributory Negligence: Asserting that the employee’s own actions contributed to the injury.

Question 13

Provide an overview of how the law of negligence impacts on the employee/employer relationship.

Answer 13

An employer owes some well- established duties to an employee, including an obligation to provide a safe system of work. This duty has been interpreted widely by
the courts, and extends to cover an employee who has suffered stress at work.

Question 14

What is vicarious liability and under what conditions does it apply?

Answer 14

Vicarious liability is a principle under which a person is liable for the torts committed by another. In the context of employers, it requires:
- The worker must be an employee or in a relationship akin to employment.
- The employee must have committed a tort.
- The employee’s tort must have been committed in the course of their employment.

Vicarious liability is secondary, meaning the employer is liable in addition to the employee, allowing a claimant to sue either or both.

Question 15

How is the relationship between employer and employee defined in vicarious liability?

Answer 15

For vicarious liability to exist, there must be a relationship of employer and employee.

Key distinctions include:
- An employee performs a service for just one person (the employer), while an independent contractor provides services to multiple clients.
- An independent contractor is self-employed and in business on their own account, whereas an employee receives a wage from the employer, who has the business interest.

Cases like Various Claimants v Catholic Child Welfare Society have explored relationships akin to employment.

Question 16

What criteria determine whether someone is in a relationship akin to employment when determining vicarious liability?

Answer 16

The Supreme Court set out five criteria relevant to imposing vicarious liability:

1. The employer is more likely to compensate the victim and typically has insurance.
2. The tort was committed as a result of the employee’s activity on behalf of the employer.
3. The employee’s activity is likely part of the employer’s business.
4. The employer created the risk of the tort by employing the employee.
5. The employee was under the employer’s control.

Question 17

Under what conditions can an employer be vicariously liable for an employee’s actions?

Answer 17

An employer is vicariously liable if the employee’s torts were committed “in the course of employment.”

This includes:
- Wrongful acts authorisd by the employer.
Wrongful and unauthorised methods of carrying out an authorised act.

For example, if an off-duty employee protects their employer’s property from theft, they may be acting within the course of employment.

Question 18

What examples illustrate when an employee’s actions fall within the course of employment when considering vicarious liability?

Answer 18

Examples include:
- In Poland v Parr, an employee protected the employer’s property from theft, which was authorised, thus making the act within the course of employment.
- In Century Insurance v NI Road Transport Board, a tanker driver caused a fire while unloading oil, which was an authorised act carried out in an unauthorised manner.
- In Harrison v Michelin Tyre Co Ltd, an employee carelessly pushing a wheelbarrow and injuring a colleague was considered to be within the course of employment.

Question 19

What is the two stage test for determining whether the tort was committed in the course of employment (vicarious liability)?

Answer 19

The close connection test established in Lister v Hesley Hall and expanded on in Mohamud v WM Morrison Supermarkets Plc. It is a two-stage test:
(1) What functions or field of activities have been entrusted by the employer to the employee (i.e. what is the nature of their job)? And
(2)Was there sufficient connection between the position in which the employee was employed and their wrongful conduct to make it just for the employer to be liable?

Question 20

How do acts expressly prohibited by the employer affect the concept of course of employment when determining vicarious liability?

Answer 20

While the classic explanation suggests that acts done in express contravention of an employer’s prohibition fall outside the course of employment, this is not always the case.

Example: In Rose v Plenty [1976], a milkman, prohibited from employing young persons, was vicariously liable when a 13-year-old helper was injured.
The Court held the employer liable as the act furthered the employer’s business, with Lord Denning noting that acts done for the employer’s benefit can still be considered in the course of employment, despite being prohibited.

Question 21

What is the position regarding intentional torts and vicarious liability?

Answer 21

Generally, an employer is unlikely to be vicariously liable for intentional torts, which are often also criminal acts.
- However, in Lloyd v Grace, Smith & Co [1912], an employer was found vicariously liable when a clerk fraudulently transferred property using his authority to act on behalf of the employer.
- The House of Lords, in Lister v Hesley Hall Ltd [2001], held that an employer can be vicariously liable for intentional wrongful acts if there is a close connection between the employee’s work and the tortious act.

This connection, known as the Lister principle, requires an assessment of whether the employee’s wrongful conduct relates closely to their employment duties.

Question 22

What constitutes a ‘frolic of their own’ in the context of vicarious liability?

Answer 22

An employee is said to be ‘on a frolic of their own’ when they commit a tort outside their course of employment.

Many cases involve employees who are driving and deviate from their authorised route.

Factors influencing this determination include:
- Extent of deviation: A major departure indicates a frolic, while a minor detour may not.
- Purpose of departure: If the employee was still conducting the employer’s business during the deviation, they are less likely to be on a frolic.

Example: A delivery driver who takes a minor detour for lunch may not be on a frolic, while one who visits a relative in the opposite direction is not acting within the scope of employment.

Question 23

What rights do employers have regarding indemnity after being found vicariously liable?

Answer 23

If an employer is found vicariously liable and pays compensation, they have a right at common law to claim indemnity from the employee who committed the tort.

This principle is established in Lister v Romford Ice & Cold Storage Co Ltd [1957].
- The employer and employee are jointly liable for the tort, and under the Civil Liability (Contribution) Act 1978, the employer can seek full loss recovery from the employee.
- However, employers’ liability insurers typically do not pursue indemnity claims unless there is evidence of collusion or wilful misconduct by the employee.

Question 24

When might dual vicarious liability occur?

Answer 24

It is possible for both X and Y to be vicariously liable (Viasystems Ltd v Thermal Transfer Ltd and Others [2005] EWCA Civ 1151) (although rare).

Dual liability might occur where an employee is lent to work for another employer and both employers are entitled, and obliged, to control the employee’s actions so as to prevent the negligent act ie the employers have an equal measure of control over the tortfeasor.

This is an exception, and generally the first employer remains vicariously liable for any torts committed.

Question 25

What three part approach is taken by the court in determining whether there is an employment relationship in vicarious liability?

Answer 25

The court indicated that there is a three part approach to take when considering whether there is an employment relationship:

a) Remuneration in exchange for personal service and mutuality of obligations;
This means the employee is being paid to fulfil their duties personally. If a worker has an unfettered right to send a substitute to do the work in their place (and the employer has no role in choosing that substitute), this cannot be an employment relationship.
Mutuality of obligations means the employer is required to provide work to the employee and the employee is required to do the work. In a ‘zero hours contract’ the absence of mutuality of obligations means the worker is unlikely to be deemed an employee.

b) Control; and
The court will consider the amount of control that the employer exercises over the worker. The more control that the employer has, the more likely it will be that the other party is an employee. Consider who has control over the tasks to be done, the way in which the tasks are performed (including who provides the tools) and when and where the work is to be completed.

c) All other contractual factors consistent with an employment relationship.
- Tools and equipment being provided by the employer;
- Tax / PAYE treatment as an employee rather than an independent contractor;
- The employee being ‘integrated’ into the organisation;
- The parties labelling the relationship as an employment relationship – but the labels given to the party (either way) are not conclusive; and
- Receiving benefits such as holiday pay and sick pay.

Question 26

Provide a summary of vicarious liability.

Answer 26

Vicarious liability is an important principle in practice as frequently claims are brought against an employer for torts committed by its employees. The concept of ‘course of employment’ is
crucial because it determines the scope of an employer’s vicarious liability.

It is important to be able to understand the overlaps and differences between a claim by an employee against their employer in negligence and a claim against the employer using vicarious liability.