Ch 6: Employers Liability Flashcards
What are the 4 Duties which an Employer owes its Employees?
- Competent Staff
- Adequate material
- A proper system of work
- A safe place of work
What are some of the elements of providing Competent Staff?
- selection of staff
- provision of training
- provision of supervision
- dismissal of employees who pose a risk to other staff
What are the two ways an employer can breach the duty to provide adequate equipment?
- Where equipment is provided but it is inadequate
- Where equipment is not provided
Is an employer liable if equipment fails due to inherent defects at purchase?
Yes - Employers liability act (Defective equipment) of 1969
However Employer will then have its own claim against the manufacturer for breach of contract
Is it enough for a safe system of work to be designed?
No - employer must make sure it is followed and complied with. This means supervision, training, and remediation
Are any of the 4 duties owed by an Employer delegator to a 3rd party?
No - these are non-delegable duties.
Employer would though then have a claim against the 3rd party for breach of contract
What additional obligations does an Employers duty to provide a safe workplace impose over and above standard Occupiers liability?
- Employers liability is non delectable. An Occupiers liability may be delegated.
- Occupiers act only applies to premises the defendant occupies. Employers liability applies wherever the work occurs (e.g site visits)
Is Employers Liability a statutory or common law duty?
Common Law - although some limited statutory elements apply
Does the duty to provide a safe system of work extend to Stress?
Yes - Walker v Northumberland Council (1995)
What is the Threshold question in determining if an injury through stress is part of an employer’s liability?
Was the injury through stress reasonably foreseeable taking into account;
- the nature and extent of work done
- signs and indications from the employee themselves
Is there overlap between claims for psychiatric harm and claims for stress?
No. The two are treated separately
Is an Employers liability common to all employees?
No - it is individual to each, and so the exact nature of liability may differ from one employee to another depending on work done and personal circumstances
Is a breach of the Health and Safety at Work Act actionable under Tort?
No - this statutory breach is a criminal offence, and cannot be claimed under a Civil claim
However the Act may still be relevant to help establish the standards for a reasonable employer
Is Voluntary assumption of risk a valid defence against Employers Liability?
Generally no - because it would have to be specific and freely given consent for the risk of injury. Generally employees are not in a position to give free consent (they are coerced by employment)
Is Vicarious Liability a Tort?
No - it is a principle under which a person is liable for the torts committed by another
What is the most common type of Vicarious Liability?
An employers liability for the actions of its employees
In Vicarious Liability who can be claimed against?
Anyone - the employer, the employee, or both
What are the 5 criteria to establish if a relationship of employment exists?
1) the employer is more likely to have the means to compensate
2) the tort was committed as a result of activity taken on behalf of the employer
3) the act was part of the business activity of the employer
4) the employer created the risk of the tort happening by employing the employee
5) the employee was under the control of the employer
What is the Salmond definition of acts committed in the course of employment which the employer may be vicariously liable for?
- wrongful acts which it has authorized
- wrongful and unauthorized modes of carrying out an authorized act
Is an aft which is expressly prohibited by an employer exempt from vicarious liability?
Not if it was done to further the business of the employer regardless of prohibition
Where an employer has paid out compensation to someone under vicarious liability for an employees actions - can it reclaim its costs from the employee?
Yes - Lister v Romford Ice (1957)
However liability insurers have informally agreed not to pursue such claims unless there is evidence of collusion or willful misconduct.
