Chapter 7: Employer's Primary Liability & Vicarious Liability

Question 1

1 Introduction

Answer 1

Employer’s primary liability: This is the law of negligence applied to the employer/employee relationship. Common law has long recognised the need to impose a duty of care on employers to take reasonable care for the safety of their employees. So this very much builds on what we have already learnt about negligence.

(b) Vicarious liability: This is where one party is held liable for the torts of another and is most commonly exercised in employer/employee relationships. There are three parties involved – the victim who has suffered harm, the employee that caused that harm by committing a tort, and the employer who might be vicariously liable for the harm caused by its employee.

(c) Identifying an employment relationship: Given the above topics generally involve employees
(employers’ primary liability always does), you will also need to briefly study what an ‘employee’ is and the concept of ‘relationships akin to employment’, as vicarious liability can
arise in such relationships too.

Question 2

2. Distinguishing employers’ primary liability and employers’ vicarious liability

Answer 2

Employers’ primary liability is where an employee sues their employer for breaching their duty of
care to the employee. In an employers’ primary liability claim, the claimant is always an
employee of the defendant.

This is distinguished from vicarious liability where the employer, while not at fault themselves, is
held responsible for the torts of their employees. Vicarious liability is where the claimant sues an employer (not necessarily their employer) for a tort committed by one of the employers’
employees. So the claimant may or may not be an employee of the defendant employer. What is
important is that the person who committed the tort is an employee of the defendant employer. The employer is held vicariously liable for the employee’s tort.

Question 3

3 Employers’ primary liability

Answer 3

When we speak of the liability of employers at common law, we are looking at the law of negligence applied to the employer/employee relationship. In this section, therefore, you will be considering again the concepts of duty, breach, causation, remoteness and defences that you already considered when studying negligence in other contexts.

Question 4

Independent Contractors

Answer 4

In the event that you are called upon to consider what duty might be owed to another sort of worker, such as an independent contractor, you will need to consider separate principles. A duty might still be owed by a business to an independent contractor, but as a general rule the level of protection offered to employees is higher than for other workers. The case law set out in this
element, which relates to employees, will not automatically apply to other workers such as independent contractors, nor even to those in a relationship ‘akin to employment’.

Question 5

3.1 Why consider employers’ primary liability separately

Answer 5

Employers’ primary liability merits particular attention because:
(a) Some tortious principles have been developed which are unique to this area; and
(b) It is an important area in practice: work-related injuries and ill-health have a significant
economic and human impact, and also represent a significant field of litigation.

See the Employers’ Liability
(Compulsory Insurance) Act 1969 and the Employers’ Liability (Compulsory Insurance) Regulations
1998

Question 6

3.2 Employers’ duty of care: Personal and non-delegable

Answer 6

The most important feature of the duty of care imposed on employers is that it is personal and non-delegable (McDermid v Nash Dredging [1987] 2 All ER 878). This means that regardless of who the employer uses to carry out tasks, the ultimate responsibility for the safety of the employee rests with the employer – they can delegate performance of the duty, but not liability for its
breach

Question 7

3.3 What is the employer’s duty?

Key case: Wilsons and Clyde Coal Co Ltd v English [1938] AC 57

Answer 7

(a) Safe and competent employees;
(b) Safe and proper plant and equipment;
(c) Safe place of work/premises, including safe access and way out; and
(d) Safe systems of work, with adequate supervision and instruction.

Question 8

3.3.1 Safe and competent fellow employees

Key case: Hudson v Ridge Manufacturing Company Ltd [1957] 2 QB 348

Answer 8

In Hudson v Ridge Manufacturing Company Ltd [1957] 2 QB 348 the claimant succeeded in a
claim against his employer who was in breach for employing someone known to be in the habit of
playing practical jokes on fellow employees. The employee who performed the prank had been
carrying out pranks for four years and had been told off repeatedly by the foreman. They should have been dismissed or re-deployed. Note that the employer must know, or ought to know, about the risk a worker is imposing to other employees.

If an incompetent person is employed or required to do a job (including supervision) that they are
not capable of doing, then there will be a breach (Black v Fife Coal Ltd [1912] AC 149).

Question 9

Injuring a fellow employee

Answer 9

Note that where one employee injures a fellow employee then, in addition to a possible action
against the employer for breach of this duty, there may also be the possibility of:

(a) An action against the employee who caused the harm (though, financially, this would almost
certainly be a waste of time); and
(b) The employer being vicariously liable.
The claim against the employee who caused the harm involves different principles of law which
are not addressed in this element.

Question 10

3.3.2 Safe/proper plant and equipment

Key case: Qualcast v Haynes [1959] AC 743:

Answer 10

An employer owes an employee a duty to provide and maintain safe machinery, plant and
equipment (including any necessary safety features and protective clothing).

In Qualcast v Haynes [1959] AC 743 the employer discharged its duty by providing protective
boots against the danger of splashes of molten metal (although this case would probably be
decided differently today given statutory provisions relating to the provision of protective
equipment, and the courts might now decide that the employer should have insisted the employee
wear the boots).

Question 11

Key case: Yorkshire Traction Co Ltd v Walter Searby [2003] EWCA Civ 1856

Answer 11

In Yorkshire Traction Co Ltd v Walter Searby [2003] EWCA Civ 1856 the claimant bus driver was
stabbed by a passenger and claimed that the bus company negligently failed to use protective
screens between drivers and passengers. The defendant bus company argued that they had
introduced the screens on some buses, but that drivers had objected to them because the screens reflected light at night and were therefore dangerous.

It was also argued that the risk of assault in the area from passengers was very low. The court held that, balancing these factors against each
other, the bus company was not negligent in failing to put up the screens in all buses.

Question 12

3.3.3 Safe place of work

Key case: Wilson v Tyneside Cleaning Co [1958] 2 QB 110

Answer 12

The employer has a duty to take reasonable care to ensure that the premises the employee works
in are safe. Many employees will need to do some/all of their work in premises which are not
owned/occupied by the employer. The employer’s duty extends to these ‘third party’ premises too.

In Wilson v Tyneside Cleaning Co [1958] 2 QB 110, a window cleaning company owed a duty to take reasonable steps to ensure that all the locations where the window cleaners cleaned windows
were safe. However, when it comes to considering whether the employer has breached this duty, what is expected of the employer in relation to third party premises is generally less than in relation to the employer’s own premises.

Question 13

Definition of Safety

Answer 13

The court considers what is reasonable in the circumstances, including place of work, nature of
building, experience of employee, nature of work, degree of control exercised by employer and
employer’s knowledge of premises (Cook v Square [1992] ICR 262).

Question 14

3.3.4 Safe system of work

Answer 14

The duty to provide a safe system of work is the widest facet of the employer’s duty, and therefore, the most frequently argued. It includes, amongst others, the physical layout of the job, the setting of the stage, the sequence in which the work is to be carried out, the provision of
warnings, notices, training, supervision and the issues of special instruction.

Question 15

Key case: General Cleaning Contractors Ltd v Christmas [1953] AC 180

Answer 15

In General Cleaning Contractors Ltd v Christmas [1953] AC 180 window cleaners working for the
defendant, had developed a method of climbing onto the windowsills and holding onto the window frames while cleaning windows, instead of using ladders. Mr Christmas (a window cleaner) trapped his fingers in a sash window, let go and fell to the ground, suffering injury. He
had not received any instructions, warnings or training in relation to sash windows.

The employer was in breach. Employers were under a duty to go to the site of work, assess the risks, and plan and organise a safe system for doing the work so as to minimise the risk of injury. The provision
of training, wedges or some other system to prevent the window frames from slipping should have
been employed to make the job reasonably safe. v

Question 16

3.3.5 Safe system of work

Key case: Bux v Slough Metals [1974] 1 Lloyd’s Rep 155

Answer 16

In Bux v Slough Metals [1974] 1 Lloyd’s Rep 155 the claimant worker was splashed with molten
metal, losing sight in one eye. His employer had complied with the statutory duty to provide
safety goggles (ie the duty to provide safety equipment), but the court held that the duty at common law went further than this, requiring the employer to encourage or insist on the wearing of the goggles

This can be seen as part of providing and implementing a safe system of work. Whether instruction, persuasion or insistence should be used in relation to protective equipment depends on the facts of the case, in particular, the nature and degree of the risk of serious harm
that could result if it is not worn. Where employees object or refuse to use safety equipment, an
employer may not be negligent for failing to enforce the use of that safety equipment.

Question 17

Key case: Clifford v Charles Challen and Son Ltd [1951] 1 KB 495

Answer 17

The employer failed to keep protective barrier cream in the workshops where the claimant worked. Barrier cream was available at a store owned by the defendant employer and the employee’s
were ‘free’ to ‘fetch it from the store if they wished’. However, the foreman also discouraged the use of barrier cream stating “he did not have great belief” in its effectiveness. Employer was negligent for failing to provide the cream in the workshop itself and for not ensuring the foreman
encouraged its use.

Question 18

Key case: Woods v Durable Suites Ltd [1953] 1 WLR 857

Answer 18

Barrier cream was available on the premises; foreman had made known to the claimant that he should use the cream; and claimant was provided with instructions on when/how/why to use the cream. Employer not negligent.

Question 19

3.5 Summary

Answer 19

• This section addresses how the law of negligence applies between employer and employee
  (considers common law only).
• An employer owes a personal and non-delegable duty to take reasonable precaution to
  ensure an employee’s safety.
• As part of this, the employer will need to provide:
• Safe/competent employees;
• Safe/proper plant and equipment (including providing protective equipment);
• Safe premises (this extends to safe third-party premises); and
• Safe system of work – this extends to creating a safe system and also to operating that
  system.
• The usual rules of breach, causation, remoteness and defences apply. Consent is hard for an
  employer to establish as a defence.

Question 20

4 Employers’ vicarious liability

Answer 20

Vicarious liability refers to situations where one party is held liable for the torts of another. It arises because of a specific relationship between the parties. It is not a tort, but merely a
determination of who is potentially liable. Vicarious liability can be described as a form of secondary liability.

While a defendant who is held liable to compensate a claimant is normally being held liable for their own wrongdoing (primary liability), a defendant who is vicariously liable is being held responsible for the wrongdoing of another person. The defendant is being required to compensate the claimant for harm caused by that other person’s tortious actions.

Vicarious liability: This is the liability of one party for a tort committed by another party.

Strict liability: This is where one party is liable despite the absence of any fault.

Question 21

Establishing Vicarious Liability

Answer 21

To establish that Party B should be vicariously liable for a tort committed by Party A it must be
shown that the following three elements are satisfied:
(a) A tort has been committed by Party A.
(b) Party A in an employee of Party B or, failing that, Party A is in a relationship akin to
employment with Party B.
(c) The tort was committed in the course of Party A’s employment/quasi-employment.

Question 22

Element 1: A tort has been committed by Party A.

Answer 22

It is essential to establish that a tort has been committed by another person (Party A) before the
defendant can be made vicariously liable. If there is no tort there can be no vicarious liability. In the majority of cases the tort is negligence, although an employer may also be held liable for other torts such as assault, battery, false imprisonment or defamation by an employee.

Question 23

Element 2: Party A is an employee of Party B, or failing that, Party A is in a relationship akin to
employment with Party B

Answer 23

Once it has been established that a tort has been committed by Party A, then the relationship
between Party B and Party A must be considered. Party B will not be vicariously liable unless that
relationship is:
(a) One of employment; or
(b) Of the same nature as an employment relationship (‘akin’ to an employment relationship).

Question 24

Element 3: The tort was committed in the course of Party A’s employment/quasi-employment. (has to be done in the course of employment)

Answer 24

Historically, a tort was in the course of employment if the wrongful act was:
(a) Expressly or impliedly authorised by the employer;
(b) Incidental to the carrying out of the employee’s proper duties; or
(c) An unauthorised way of doing something authorised by the employer.

Question 25

Closeness of Connection

Answer 25

An employer will be held vicariously liable for the acts of their employee if there is a ‘closeness of
connection’ between the employee’s wrongful act and their employment. The courts focus on the time the wrongful act was committed and all other relevant circumstances. This is almost certainly a broader test. Case law emphasises the importance of the connection between the employee’s employment duties and the tort committed: is there a close connection between the employee’s
tort and the role they are employed to do?

Question 26

Key case: Lister v Hesley Hall Ltd [2002] 1 AC 215

Answer 26

Lord Steyn stated that the correct approach when determining this issue ‘is to concentrate on the
relative closeness of the connection between the nature of the employment and the particular
tort‘. In this case, the warden’s torts were closely connected with his employment as it was because of his position that he was able to exploit the children, so it was held to be fair and just to hold the employer vicariously liable. The tort was committed on the employer’s premises during working hours whilst he was caring for the children in performing his duties.

Question 27

Key case: Mohamud v WM Morrison Supermarkets plc [2016] UKSC 1

Answer 27

(a) What functions or ‘fields of activities’ have been entrusted by the employer to the employee
(what was the nature of their job)?

(b) Was there sufficient connection between the position in which they were employed and their
wrongful conduct to make it fair and just for the employer to be held liable?

Question 28

Key case: Mohamud v WM Morrison Supermarkets plc [2016] UKSC 1

Answer 28

When Mr Mohamud approached
the kiosk with an inquiry, Mr Khan’s rude response was clearly ‘closely connected’ with his duties
(responding to inquiries). The verbal, racial and physical abuse that ensued as Mr Khan followed
Mr Mohamud to the forecourt and his car was held to be a ‘seamless episode’, an unbroken
sequence of events that started with an act that was closely connected to his employment duties.

The abuse was not an act of personal vengeance and as Morrisons had entrusted Mr Khan to deal
with members of the public it was held to be just that they should be responsible for his abuse of
trust.

Question 29

Key case: Fletcher v Chancery Lane Supplies [2016] EWCA Civ 1112

Answer 29

In Fletcher v Chancery Lane Supplies [2016] EWCA Civ 1112 the claimant cyclist collided with an
employee of the defendant, a pedestrian who was crossing the road without looking properly. The
defendant had a shop and office on opposite sides of the road. At the time of crossing the road
the tortfeasor was wearing his company uniform with the company logo and work boots, but the
accident happened 40 minutes after his shift ended.

The court applied the approach from Mohamud: was there a connection between his work and the negligence? There was no close connection as it was impossible to know if crossing the road was sufficiently connected to the tortfeasor’s work at the time to make it reasonable to find his employer vicariously liable because it was unknown why the tortfeasor had been crossing the
road.

Question 30

Examples: Employer held vicariously liable

Century Insurance v Northern Ireland Road Transport Board [1942] AC 509

Answer 30

A lorry driver caused an explosion by carelessly smoking a cigarette whilst filling his lorry with petrol. This was
in the course of employment as he was doing something authorised (filling the lorry with petrol),
albeit in an unauthorised manner (smoking whilst filling the lorry with petrol)

Question 31

Harvey v RG O’Dell [1958] 1 All ER 657

Answer 31

A workman driving negligently injured a colleague who
was his passenger. At the time, they were travelling five miles during working hours to get lunch.
This was incidental to the workman’s work and therefore within the course of employment. Stopping to take a lunch break was a reasonably expected act by an employee.

Question 32

Rose v Plenty [1976] 1 WLR 141,

Answer 32

A boy was injured whilst assisting a milkman on his rounds; the
boys’ leg got trapped under the milk float. The milkman had been prohibited from enlisting help
by his employer. Denning LJ held the employer vicariously liable on the basis that the prohibited
act was done ‘for the employer’s business’. Scarman LJ, found the employer liable, following a
more traditional analysis, that the prohibited act constituted an unauthorised mode of performing
the task he was employed to carry out.

Question 33

Smith v Stages [1989] 2 WLR 529,

Answer 33

Two employees were injured in a car crash. As they had been paid travel expenses, were paid for travelling time and were within working hours, the House of Lords held that they were acting in the course of employment. In determining whether an employee is acting within the course of employment when travelling on the highway, the material question is whether they are going about their employer’s business at the material time

Question 34

Examples: Employer not held vicariously liable

Joel v Morrison (1834) 6 C&P 501

Answer 34

It was said that If the employee’s act was unauthorised or expressly prohibited, they were deemed to have been on a ‘frolic of [their] own’.

Question 35

Beard v London General Omnibus Co [1900] 2 QB 530

Answer 35

A bus conductor attempted to drive a
bus and ran over the claimant. He was not authorised to drive the bus, driving the bus was not incidental to his duties and he was not carrying out an authorised act in an unauthorised manner.

Question 36

Storey v Ashton (1869) LR4 QB 476

Answer 36

A driver returning from delivering wine for work was
persuaded by his colleague to deviate from the route back to his employer’s premises. The claimant colleague was injured by the driver’s negligent driving. The driver was not acting in the course of employment. Much depends upon the extent of the deviation, whether travelling was in
working time and the actual purpose of the journey. This deviation was a new and independent journey, entirely for their own purpose (to visit relatives)

Question 37

Twine v Bean’s Express Ltd [1946] 62 TLR 458

Answer 37

Despite express instructions not to do so, the lorry driver (an employee) picked up a hitch hiker, who was subsequently injured as a result of the driver’s negligent driving. The Court of Appeal found that the hitch hiker was a trespasser and the
employee was not acting within the scope of employment as he was doing something expressly
prohibited. A consideration of policy is probably helpful in squaring the decisions made

Question 38

4.2 The employer’s indemnity

Answer 38

Under s 1(1) Civil Liability (Contribution) Act 1978 an employer may be entitled to seek an
indemnity from their employee should they be forced to pay damages in respect of the
employee’s tort. So although the victim claims against the employer, the employer may be able to
claim something back from the employee. The court will allow such a claim if it is ‘just and
equitable’ to do so.

Question 39

Gentleman’s Agreement

Answer 39

Generally, litigation against an employer is conducted on the employer’s part by their insurers
who will be paying in the event of liability being established. The right to a contribution from an
employee is rarely exercised by insurers following their compliance with a ‘gentleman’s agreement’
not to do so in the absence of wilful misconduct or collusion.

Question 40

4.3 Summary

Answer 40

• Vicarious liability is the liability of one party for a tort committed by another party.
• Party B is vicariously liable for a tort committed by Party A where:
• A tort has been committed by Party A;
• Party A is an employee of Party B, or in a relationship akin to employment; and
• The tort was committed in the course of that employment/quasi-employment.
• A tort will be committed in the course of employment (the last of the three points above) if
  there is a sufficiently close connection between the wrongful act and the employment.
• The close connection test is a two-fold test:
• What functions/field of activities has the employer entrusted to the employee?
• Is there a sufficient connection between the position in which the employee was employed
  and the wrongful conduct to make it just for the employer to be held liable?

Question 41

5 Identifying an employment relationship

Answer 41

One way of working is to work as an employee. The relationship of employer/employee is one
where there is a ‘contract of service’. It is to be contrasted with the employer/independent contractor relationship where there is a ‘contract for services’.

Question 42

Contracts of Service

Answer 42

For example, in a café, the waiting staff may well be employees, providing services under
contracts of service. If there is an electrical problem and the owners of the café call an electrician, the electrician is not an employee of the café. He provides services under a contract for services.

Contract of service: A contract under which services are provided in an employer/employee relationship.

Contract for services: A contract under which services are provided by an independent contractor, not in an employer/employee relationship.

Question 43

5.1 Why does it matter, for the purposes of tort law, whether or not
someone is an employee?

Answer 43

(a) A body of case law has developed which explains the common law duty of care owed by employers to employees ie how an employer might be negligent in relation to its employees. A duty might still be owed by a business to other types of worker, but as a general rule the level
of protection offered to employees is higher than for other workers.

(b) An employer can be vicariously liable for torts committed by an employee ie might have to
compensate a claimant where the claimant suffers from a tort committed by an employee.

Question 44

5.2 How to identify an employment relationship

Answer 44

The favoured approach is the ‘multiple factors’ or ‘economic reality’ test derived from the
following case.

Question 45

Key case: Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 497

Answer 45

Facts: the court had to consider the status of X who drove a lorry carrying a concrete mixer. X was responsible for hiring, insuring and running the lorry and was paid by the company on the basis of his mileage. He had no set hours, no instructions on routes or set breaks and was defined
in the contract as an independent contractor. However, the company exercised control over uniform and colours of the lorry (he could not use the lorry for another business).

Held: X was an independent contractor. The driver was in business on his own account: ‘he who
owns the assets and bears the risk is unlikely to be a servant’ (ie unlikely to be an employee: some older cases use the language of ‘master’ and ‘servant’ instead of ‘employer’ and ‘employee’).

Question 46

Multiple factors test

Answer 46

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;
(b) Control; and
(c) All other contractual factors consistent with an employment relationship.
Looking at each in turn:

Question 47

Remuneration in exchange for personal service and mutuality of obligations

Answer 47

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.

Question 48

(b) Control

Answer 48

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.

Question 49

(c) All other contractual factors consistent with an employment relationship

Answer 49

Other factors that might point towards an employer/employee
relationship are:

(i) Tools and equipment being provided by the employer;
(ii) Tax/PAYE treatment as an employee rather than an independent contractor;
(iii) The employee being ‘integrated’ into the organisation;
(iv) The parties labelling the relationship as an employment relationship – but the labels
given to the party (either way) are not conclusive; and
(v) Receiving benefits such as holiday pay and sick pay.

Question 50

Key case: Barclays Bank Plc v Various Claimants [2020] UKSC 13

Answer 50

Barclays required prospective employees to undergo a medical examination, at a time and place
specified by Barclays, otherwise they would not be offered employment. The medical examinations were conducted by Dr Bates and it transpired he had assaulted a number of the young women he examined. Should Barclays be vicariously liable for those assaults?

Dr Bates was not employed by Barclays. He had been chosen by the bank, was often described as ‘the bank’s doctor’ and carried out examinations as specified by Barclays. Despite these elements of ‘control’ by Barclays, Dr Bates was carrying on his own independent business as a medical practitioner
with a portfolio of patients and clients, of whom only one was Barclays. His relationship with
Barclays was not akin to employment, and Barclays were not vicariously liable for his actions.

Question 51

Test for relationship akin to employment

Answer 51

In such cases, it may be useful to consider that a relationship is more likely to be akin to an employment relationship if:

(a) The employer is more likely to have the means to compensate the claimant than the
tortfeasor;
(b) The tort has been committed as a result of an activity being undertaken by the tortfeasor on
the employer’s behalf;
(c) The tortfeasor’s activity is part of the business activity of the employer;
(d) By allowing the tortfeasor to carry on the activity, the employer created the risk of the tort
being committed; and
(e) The tortfeasor is, to a greater or lesser degree, under the control of the employer.

Question 52

Example: Relationship akin to employment

Cox v Ministry of Justice [2016] UKSC 10

Answer 52

Mrs Cox was the catering manager, injured when a prisoner who worked for her in the kitchens, negligently dropped a sack of rice onto her back as she was leaning forwards. It was accepted that the prisoner had been negligent.

The prisoner was paid a small amount of money but in all other ways it was clear that he did not
satisfy the requirements of an employment relationship nor was he carrying out an independent
business. There was no contract and the purpose of his work was for rehabilitation.

Question 53

5.4 Lending employees

Answer 53

The general rule is that the employer (X) will remain vicariously liable, and it will be difficult for X to rebut this presumption (Mersey Docks and Harbour Board v Coggins and Griffiths [1947] AC 1). Much emphasis is placed on the level of control the hirer has over the worker and the provision of equipment.

The House of Lords found that A was still the employee of X; X had authority to tell A the manner in which his work should be done (A was using X’s crane), X paid A’s wages, had the power to dismiss A and the duration of the post was temporary.

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: 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.