Chapter 6 - Employers' Liability

Question 1

What are the two potential areas of tort liability for employers concerning employee injuries at work?

Answer 1

• Liability in negligence for breach of the personal duty owed to each employee.
• Vicarious liability for the torts of an employee committed in the course of employment.

Question 2

Explain the concept of an employer’s ‘personal’ duty of care in negligence toward their employees.

Answer 2

• It is a non-delegable duty. This means the employer cannot escape liability by claiming they delegated the duty to someone else they believed was competent. They are ultimately responsible for ensuring a safe working environment.
• Example: If an employer hires a contractor to maintain machinery, and the contractor negligently fails to spot a fault leading to an employee’s injury, the employer is still liable because their duty is non-delegable.

Question 3

What are the four specific duties encompassed by an employer’s common law duty of care to their employees?

Answer 3

Duty to take reasonable steps to provide:
1. Competent Staff
2. Adequate material (plant, equipment, and machinery)
3. A proper system of work and supervision
4. A safe place of wor

Question 4

What does the duty to provide competent staff entail?

Answer 4

• The duty arises when an employer knows, or ought to know, about a risk a worker poses to colleagues, whether physical or psychological harm.
• Practical implications: Careful staff selection, provision of training and supervision, and dismissal of employees who continue to pose risks despite training.

Question 5

Case law example of the duty to provide competent staff?

Answer 5

Hudson v Ridge Manufacturing Co Ltd: Employer liable for injury caused by a fellow worker’s repeated pranks because the employer knew about the risk but failed to stop it.

Question 6

Explain the duty to provide adequate plant and equipment

Answer 6

• Employers must provide and maintain equipment necessary for the job, ensuring it is safe and free from defects.
• This includes addressing wear and tear, lack of servicing, missing safety devices, and inherent defects.

Question 7

What is the Employer’s Liability (Defective Equipment) Act 1969?

Answer 7

• Allows employees injured by defective equipment to sue their employer, even if the defect is the manufacturer’s fault.
• The employee must prove fault on the part of the manufacturer or supplier and that this fault caused their injury

Question 8

What is the scope of the duty to provide a safe system of work?

Answer 8

This broad duty includes:
* Physical layout of the job
* Sequence of work
* Provision of training, warnings, notices, safety equipment, and special instructions.
* It also covers stress caused by work

Question 9

What steps must an employer take to ensure they are complying with the duty to provide a safe system of work?

Answer 9

Not just about devising a system but ensuring it is implemented:
* Providing adequate training
* Ensuring employee supervision
* Monitoring the system’s operation
* Taking disciplinary action against employees who fail to comply

Question 10

What does the duty to provide a safe workplace entail?

Answer 10

• Employers must take reasonable steps to provide a safe place of work, regardless of location.
• This duty overlaps with the Occupiers’ Liability Act 1957, but is more demanding because it is non-delegable and applies to any location where employees work

Question 11

Case law example illustrating the difference in scope between the common law duty to provide a safe workplace and the duty under the Occupiers’ Liability Act 1957?

Answer 11

General Cleaning Contractors v Christmas: The common law duty requires an employer to assess and mitigate dangers in any premises their employees are sent to, even if they are not the occupier.

Question 12

Explain the application of the employer’s duty of care in cases of stress at work.

Answer 12

• Confirmed in Walker v Northumberland County Council, employers have a duty to provide a safe system of work, which extends to preventing stress-induced injuries.
• Key factor is foreseeability. Did the employer know or should they have known the workload could cause harm?

Question 13

What are the Hatton Guidelines for stress at work claims?

Answer 13

Established in Hatton v Sutherland and approved in Barber v Somerset County Council, these guidelines assist courts in handling stress at work claims:
* The “threshold question” is whether injury through stress was reasonably foreseeable
* Factors to consider:
1. Nature and extent of the work (e.g., excessive workload, absenteeism in the department)
2. Signs from the employee (employers can generally assume employees can handle normal job pressures)

Question 14

Case law example where an employer was found liable for an employee’s second nervous breakdown due to work stress?

Answer 14

Walker v Northumberland County Council: The employee’s previous stress-related absence made it foreseeable that a similar situation could reoccur unless the employer took steps to prevent it.

Question 15

How is breach of duty determined in employer’s liability cases

Answer 15

An employer breaches their duty if they fail to meet the standard of care of a reasonable employer in their position
The courts consider:
1. Magnitude of the foreseeable risk
2. Cost and practicality of precautions

Question 16

How is the duty of care personalized to each employee?

Answer 16

The employer’s duty is owed to each individual employee, meaning they must consider individual circumstances.
* Example: Paris v Stepney Borough Council - an employer was required to take extra precautions for a one-eyed employee due to the increased risk of total blindness

Question 17

Explain the relevance of the Health and Safety at Work etc. Act 1974 (HSWA 1974) in negligence claims.

Answer 17

• Breach of HSWA regulations is a criminal offense but not directly actionable in civil claims.
• However, HSWA regulations are relevant in assessing whether an employer breached their common law duty of care.
• Courts will consider the risks an employer should have foreseen and the precautions a reasonable employer would take in light of those regulations

Question 18

What are the key elements in establishing causation in employer’s liability cases?

Answer 18

• Once a breach is established, the employee must prove that the breach caused their injury
• Standard causation principles apply, including the “but for” test, novus actus interveniens, and remoteness of damage.

Question 19

What are common defenses in employer’s liability cases?

Answer 19

• Voluntary assumption of risk: Rarely successful because it’s difficult to prove an employee freely consented to a risk caused by the employer’s negligence.
• Contributory negligence: More common, but courts make allowances for employees in challenging work environments (e.g., noisy, repetitive jobs). If successful, damages are reduced proportionally.

Question 20

What is vicarious liability?

Answer 20

A legal principle holding an employer liable for torts committed by their employees during employment.
* It’s a form of secondary liability, meaning the employer is liable in addition to the employee. Both are jointly liable

Question 21

What are some justifications for the principle of vicarious liability?

Answer 21

• Moral: Encourages accident prevention, as employers have a financial interest in employee safety; fairly holds employers responsible for profits generated by employees, even if those profits come with risks.
• Practical: Employees may lack the financial resources to pay damages; employers are better positioned to insure and distribute the cost of liability.

Question 22

What are the three essential elements of vicarious liability?

Answer 22

1. The worker must be an employee (or in a relationship akin to employment).
2. The employee must have committed a tort.
3. The employee’s tort must have been committed in the course of their employment.

Question 23

Explain the importance of distinguishing between employees and independent contractors in the context of vicarious liability.

Answer 23

• Employers are only liable for the torts of their employees, not independent contractors.
• Key difference: Employees work under a contract of service, while independent contractors work under a contract for services.
• Supreme Court in Barclays Bank plc v Various Claimants reaffirmed this distinction

Question 24

What are some factors used to distinguish between employees and independent contractors?

Answer 24

• Control: Does the employer have the right to control how the work is done?
• Integration: Is the worker integrated into the employer’s business, or do they operate independently?
• Economic reality: Who bears the business risk and provides the tools and equipment?

Question 25

What are the five criteria outlined by the Supreme Court in Various Claimants v Catholic Child Welfare Society for determining a relationship “akin to employment”?

Answer 25

1. Employer is more likely to have means to compensate the victim.
2. Tort committed as a result of employee acting on behalf of the employer.
3. Employee’s activity is part of the employer’s business.
4. Employer created the risk of the tort by employing the employee for that activity.
5. Employee under the control of the employer.

Question 26

Explain the meaning of “course of employment” in vicarious liability.

Answer 26

• An employer is only liable for employee torts committed “in the course of employment.”
• Determining this can be challenging, and courts have developed various tests and interpretations.

Question 27

What is the classic Salmond definition of “course of employment”?

Answer 27

Acts committed in the course of employment include:
* Wrongful acts authorized by the employer.
* Wrongful and unauthorized modes of carrying out an authorized act

Question 28

Case law example illustrating the Salmond definition where the employer was held liable because the employee was protecting the employer’s property.

Answer 28

Poland v Parr: Employer held liable for an employee who assaulted a boy he believed was stealing from the employer’s wagon.

Question 29

Case law example contrasting Poland v Parr, where the employer was not held liable because the employee acted out of personal motives.

Answer 29

Warren v Henleys: An employee who punched a customer after an insult was not acting in the course of employment as the act was personal retaliation.

Question 30

How can an act expressly prohibited by the employer still fall within the course of employment?

Answer 30

• If the prohibited act is done to further the employer’s business, it can still be considered within the course of employment.
• This often applies when the prohibition relates to the manner of doing the job rather than the scope of the job itself.

Question 31

Case law example where an employee’s prohibited act was considered within the course of employment because it furthered the employer’s business.

Answer 31

Rose v Plenty: Employer held liable for a milkman who hired a young boy to help with deliveries, even though this was prohibited, as the boy was assisting with the employer’s business.

Question 32

Case law example contrasting Rose v Plenty, where the employee’s prohibited act was outside the course of employment because it did not benefit the employer.

Answer 32

Twine v Bean’s Express: Employer not liable for a driver who gave a lift to a hitchhiker, despite a prohibition, as the act did not further the employer’s business.

Question 33

Can an employer be held liable for an employee’s intentional torts?

Answer 33

• Yes, if there is a sufficiently close connection between the employee’s job and the tort committed.
• This principle was established in Lister v Hesley Hall, where an employer was held liable for sexual abuse committed by a warden employed to care for children.

Question 34

What is the Lister principle, and how has it been elaborated on in subsequent cases?

Answer 34

• Lister v Hesley Hall established the “close connection” test for intentional torts.
• Mohamud v WM Morrison Supermarkets provided further guidance:
  1. Determine the function or field of activities entrusted to the employee.
  2. Decide if there’s a sufficient connection between their position and the wrongful conduct to make employer liability fair and just.
• WM Morrison Supermarkets plc v Various Claimants emphasized that employee motives and whether they were acting for personal reasons or the employer’s business are key considerations.

Question 35

What are “frolic” cases in vicarious liability?

Answer 35

• Situations where an employee deviates from their authorized duties, often involving driving cases.
• The employer is not liable if the employee is “on a frolic of their own” when committing the tort.

Question 36

What factors are considered in determining if an employee is on a “frolic of their own”?

Answer 36

• Extent of deviation: A minor detour versus a major departure from the route or task.
• Purpose of deviation: Was the employee still engaged in activities that could benefit the employer?

Question 37

Case law examples illustrating the concept of “frolic” and when an employer is not liable for an employee’s actions.

Answer 37

• Example where a driver going to visit a relative after making deliveries is on a frolic.: The driver is not engaged in the employer’s business.
• Example where a sales representative stopping for lunch is not considered a frolic. Stopping for lunch is reasonably incidental to the work.

Question 38

Can an employer who has paid damages due to vicarious liability seek reimbursement from the employee?

Answer 38

• Yes, the case of Lister v Romford Ice established the employer’s right to an indemnity from the negligent employee.
• This right is also supported by the Civil Liability (Contribution) Act 1978.

Question 39

How does the informal agreement between insurers impact the employer’s right to indemnity?

Answer 39

Insurers generally don’t pursue indemnity claims against employees unless there’s evidence of collusion or wilful misconduct.

Question 40

Case law example discussing an employer’s potential liability in negligence and vicarious liability, including relevant defenses.

Answer 40

In the case study of Donald and Plasticware Ltd.:
* Negligence Claim: Plasticware breached its duty to provide a safe system of work and competent staff (foreman) by allowing Donald to operate the machine unsafely. Defenses of consent and contributory negligence might apply.
* Vicarious Liability: Plasticware could be liable for the foreman’s negligence in failing to properly supervise Donald. The tort occurred in the course of the foreman’s employment, and defenses like consent and contributory negligence might be relevant

Question 41

How does the Enterprise and Regulatory Reform Act 2013 affect civil claims for breaches of statutory health and safety regulations?

Answer 41

While breach of these regulations is a criminal offense, the Act prevents them from being the basis of a civil claim for damages