Employer Liability

Question 1

What are the three manners in which liability can be held against an employer?

Answer 1

Contract
Tort
Statute- Health and Safety Welfare Act 2005
Vicarious liability for a third party

Question 2

What is the standard of care for employers?

Answer 2

The standard of care will vary from case to case, depending on the nature of the work and the nature of the employment and the usual factors are considered when determining whether there has been a breach of the standard of care.

Thus, the standard of care is not absolute, and an employer is not an insurer of his employee’s safety.

Question 3

Thompson v. Dublin Bus & Anor.

Answer 3

Supreme Court indicated that health and safety regulations would impose strict liability only if they were drafted in very clear terms.

Question 4

Dalton v. Frendo

Answer 4

Supreme Court said, “[a]ctions of negligence are concerned with the duty of care as between a particular employer and a particular workman … That duty may vary with the workman’s age, knowledge and experience.”

Question 5

Bradley v. CIE

Answer 5

The law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty if he has done what a reasonable and prudent employer would have done in the circumstances.

Question 6

Keegan v. Dunnes Stores

Answer 6

The inclusion of the words ‘so far as is reasonably practicable’ in that section is important. Take out those words and you are left with strict liability on the part of the employer. It follows, in my view, that where a defendant/employer raises a defence of, for example, a proper training
programme and a proper cleaning and maintenance regime, the court has a duty to analyse such evidence in the context of what is reasonably practicable.

Question 7

Quinn v. Bradbury

Answer 7

The duty of an employer is to take such measures as are reasonable and practicable in the circumstances of the work performed in order to ensure that no employee is injured while at the workplace. The more hazardous the work involved, the more stringent is the duty on the employer to take precautions. Even apparently simple and straightforward work, however, may carry the risk of an accident occurring and this must be guarded against by reasonable measures which are practicable in the circumstances.

Question 8

Brady v. Beckman Instruments (Galway) Incorporated [

Answer 8

the employer was found not to be liable as he had taken all reasonable precautions to provide a safe work environment and the employee’s dermatitis was found to be “unique and improbable” as not to be foreseeable.

Question 9

Barclay v. An Post [1998] 2 ILRM 385

Answer 9

the plaintiff postman sued his employer for injuries to his back which he sustained during the course of his employment. He claimed that the injuries occurred as a result of delivering post to houses fitted with low-level letterboxes. Low-level letterboxes had been a cause of concern for postmen for some time. McGuinness J said that the employer’s duty of reasonable care applied where the employee is working on a third party’s premises, although what is reasonable may depend on the place of work.

On balance therefore it was held that, generally, the defendant could not be blamed for not having taken sufficient reasonable care in addressing the hazard posed by low level letter boxes. However, in relation to the particular plaintiff McGuinness J held that the defendant did not act with reasonable care after it had become aware of the plaintiff’s back injuries. The employee was required to work overtime. The defendant was found to have been negligent and was liable to compensate the plaintiff for the damages suffered as a result of his second back injury.

Question 10

Mulcare v. Southern Health Board [

Answer 10

the plaintiff was injured in an elderly woman’s house. The plaintiff was employed by the defendant to provide home help assistance to the elderly woman. The plaintiff argued the defendant should have ensured the house was safe for her to work in. The court held the house was not unsafe and that there was no onus on the defendant to carry out an inspection of every house. The court also noted the social utility of the work in question.

Question 11

Walsh v. Securicor (Ireland) Limited

Answer 11

plaintiff was a security guard who was injured in an ambush. The Supreme Court held that the activity in question was “a high risk operation and the defendant was bound to avail of every safety precaution”. In that case the security team made a delivery at precisely the same time every week for seven years. In failing to vary the times of the delivery the defendant was found to be negligent.

Question 12

The Duty of Care at Common Law

Answer 12

At common law there is no duty on employers to warn of obvious dangers.

There is, however, a duty to take steps to avoid unnecessary risk.

1. Duty to hire competent staff,
2. Duty to provide a safe place of work,
3. Duty to provide a safe system of work, and
4. Duty to provide proper equipment.

Question 13

Dalton v. Frendo i

Answer 13

it was held an experienced building contractor did not have to be warned of the risk of using a stepladder inappropriately.

Question 14

Swords v. St Patrick’s Copper Mines Limited

Answer 14

Supreme Court held that a dangerous machine should have been fitted with a guard, and merely giving an employee warning instructions on using the machine was not sufficient.

Question 15

Clarke v. Minister for Defence

Answer 15

held that the defendant was under a duty to take “such precautions as were reasonable and practicable” in the circumstances to reduce the risk of the plaintiff being wounded or killed while on active duty with the armed forces. However, the defendant was found not liable as the appropriate precautions and risk assessment had been carried out and the defendant was therefore not negligent. The defendant also had an adequate system in place for identifying those most at risk of mental injury and stress.

Question 16

Dowling v. Brown

Answer 16

Obligations on an employer

• Duty to hire competent staff,
  • Duty to provide a safe place of work,
  • Duty to provide a safe system of work, and
  • Duty to provide proper equipment.

Question 17

What duties are non-delegable?

Answer 17

These duties are said to be “non-delegable”. The employer may delegate the performance of these duties to his employees or an independent contractor, but the employer will remain liable if the duties are not discharged adequately:

• Duty to hire competent staff,
• Duty to provide a safe place of work,
• Duty to provide a safe system of work, and
• Duty to provide proper equipment.

Question 18

Connolly v. Dundalk Urban District Council

Answer 18

The common law duties . . . cannot be delegated to independent contractors so as to avoid the primary liability that devolves on employers to make sure that these duties are carried out. These are responsibilities which cannot be put to one side; they must remain with the employer.

Question 19

Martin v. Dunnes Stores

Answer 19

he Court of Appeal held that the defendant had a system in place whereby checkout staff could request assistance from other members of staff over a tannoy. The Court also found that the plaintiff had received training in manual handling which involved the plaintiff being examined on the instructions received by filling out a questionnaire.
The plaintiff did not follow her training and ignored the system put in place by the employer when asked by a customer to replace a 10 kg bag of potatoes. The plaintiff had assumed that the supermarket was short-staffed, as her supervisor was on holidays at the time and the acting supervisor was working on the express checkout.

Nevertheless, she did not try to use the tannoy to seek assistance. The plaintiff had also failed to follow her manual handling training when removing the bag of potatoes with force. Irvine J concluded that the defendant had complied with its obligation “to identify potential hazards and then to implement procedures designed to protect the employee from the risks”.

Question 20

Spes v. Windcanton Ireland Ltd

Answer 20

the plaintiff suffered a back injury as a result of lifting heavy weights, and Barr J held that the plaintiff “did not get training in how to turn correctly while carrying a load …the defendant was negligent in its failure to provide adequate training to the plaintiff.”

Question 21

O’Reilly v. Irish Rail (

Answer 21

An employer may also be liable for allowing an unsafe practice to go unchecked.

Supreme Court found the defendant was liable for injuries sustained by a worker when he stepped off a moving train. The employer knew of this practice among employees and did nothing to stop it.

Question 22

Guckian v. Cully

Answer 22

an employer was found liable in circumstances where a baker was not permitted to use a stick to keep dough from the sides of a dangerous machine in case the stick would get caught in the machine and a piece of wood get into the dough. However, the baker was not forbidden from using his hands for the same purpose!

Question 23

What does the Duty to Hire Competent Staff Include?

Answer 23

incudes training staff in relation to health and safety, and complying with the provisions of the 2005 Act, including having appropriate policies in place to deal with inappropriate behaviour in the workplace.

an employer owed his employee a duty “to use due care to select proper and competent” fellow employees.

An employer also owes a duty to ensure that employees have been properly trained in the operation of equipment, machinery and the carrying out of their work.

Question 24

Elmontem v. Nethercross

Answer 24

High Court considered a situation where an employee was assaulted at work by a fellow employee.

The plaintiff was employed as a financial controller and was without warning struck by another employee “battering him violently about the face and head with both fists”.

The Court found that the employer was aware that the employee “had on a previous occasion in a fit of temper caused physical injury to a fellow employee in the course of their joint employment”. There was therefore “a very real risk, not just a mere possibility, that this could occur again, if for any reason the second defendant’s temper became aroused and that this exposed his fellow employees, including the plaintiff, to a risk of physical injury”.

The employer was not negligent in hiring the employee in the first place, as it was not aware of incidents in previous employment. While the employee had been disciplined for a previous incident in the employment of the defendant, the Court held the employer was nevertheless negligent in failing to have “a clear Safety Statement or policy with regard to improper conduct or behaviour at work, especially having regard to the multi ethnic nature of its large workforce.”

There was also no evidence that arising from a previous incident that the employer “had notified and warned the second defendant in writing in clear and definite terms that physical violence towards any other employee would not be tolerated and would result in his being dismissed for gross misconduct”.

Question 25

Duty to Provide a Safe Place of Work

Answer 25

a duty to take reasonable care to avoid work place accidents and to ensure the work place is as safe as can reasonably be.

Question 26

Gillane v. Focus Ireland Ltd

Answer 26

The plaintiff had been subjected to sitting in a draught for months and developed sinus infections and chronic myositis of the trapezius muscles (neck and shoulders). The office was actually too hot, and the windows were opened by the plaintiff herself. Murphy J concluded the defects in the plaintiff’s workstation were a contributing factor to the symptoms for which she had not previously suffered.

Question 27

McCarthy v. ISS Ireland Ltd

Answer 27

What comprises a “safe” place of work will vary depending on the nature of the work and of the workplace.

the plaintiff brought an action against her employer arising out of five separate incidents at work in which she claimed that cleaning staff under her supervision acted in an aggressive, threatening and abusive manner towards her, causing such severe stress, anxiety and humiliation that she was compelled to leave her job.

The High Court found that the plaintiff had not established a case of bullying in the workplace and dismissed her claim.

On appeal, it was held that although the trial judge was correct in finding that workplace bullying had not been established, he had erred in considering only the question of bullying in the workplace and in failing to deal with the claim on the basis of a failure of the employer to provide a safe place of work.

Question 28

Caulfield v. George Bell and Company Limited

Answer 28

What is Safe System at Work?

The expression has to be considered in every case, to which it is appropriate, in relation to the particular circumstances of the job in hand. In the expression the word “safe”, means no more than “as safe as is reasonably possible in the circumstances”. The degree of safety would depend on the particular job and would vary between wide limits.

Question 29

Lynch v. Binnacle Ltd [

Answer 29

the plaintiff was a drover employed by the defendant which operated a cattle mart. The plaintiff was kicked in the scrotum by a bullock in circumstances where the plaintiff’s co-employees had negligently absented themselves from their duties and were unable to assist the plaintiff in moving the bullock from a pen to the sales ring. The Supreme Court held the defendant was liable because no provision was made for a situation where the plaintiff’s co-employees should have requested permission to leave their station or what an employee would be expected to do in circumstances where he was left on his own. The defendant permitted an unsafe system of work and was therefore negligent. It was also held the defendant was vicariously liable for the negligence of its employees in leaving their workstation

Question 30

Coffey v. Kavanagh

Answer 30

the employer had failed to carry out a risk assessment and therefore had failed “to put in place a safe and appropriate system of work which would have reduced or eliminated the risk of injury”, namely the plaintiff tripping over boxes stored in the workplace.

Question 31

Duty to Provide Proper Equipment

Answer 31

Equipment and machinery used in the course of employment should be reasonably safe and reasonably maintained to avoid risk of injury to the employee. An employer may also be under a duty to provide protective equipment or clothing, depending on the nature of the risk.

Question 32

Burke v. John Paul & Company Limited

Answer 32

the employer knew a cutting machine was blunt. The employee developed a hernia as a result of having to apply increased physical pressure and the employer was held liable.

Because the duty to provide safe equipment is not delegable it would not be a defence to assert the machine was defective and for the defendant to blame the manufacturer.

Question 33

Heeney v. Dublin Corporation

Answer 33

the High Court found the defendant liable for not providing suitable breathing apparatus to the deceased fire fighter.

Question 34

Adams v. Galway County Council

Answer 34

held the defendant was liable to a part-time fire-fighter for failing to provide him with an individual lamp in order to be able to discover dangers while fighting fires at night. A lamp had been provided to one of a team of four fire-fighters, but this was held to be inadequate.

Question 35

Dunne v. Honeywell Control Systems Ltd

Answer 35

The defendant was liable for not providing suitable equipment. The plaintiff was formerly provided with a satchel to carry tools which could be carried over the shoulder. However, this was replaced with a case to be carried by hand. When the plaintiff fell descending a ladder, it was found the manner in which he had to carry his tools was partly to blame.

Question 36

Everitt v. Thorsman Ireland Ltd

Answer 36

held the employer was not liable in negligence for failing to discover a latent defect in a lever, but held that the duty to provide safe equipment in the Safety, Health and Welfare at Work (General Application) Regulations 1993 imposed a higher, “virtually an absolute duty on employers in respect of the safety of equipment”.

Question 37

McKenna v. Meighan

Answer 37

Contributory Negligence

“the workman’s knowledge of the danger is not in itself contributory negligence”. Since the onus is on the employer to ensure a safe place of work the employer will be liable if he acted unreasonably.

Question 38

Bowell v. Dunnes Stores

Answer 38

considered the employee’s contributory negligence and noted that both employer and employee had statutory duties under the Safety, Health and Welfare at Work Act 2005.

Question 39

Smith v. The Health Service Executive

Answer 39

ourt should be more inclined to make a finding of contributory negligence in circumstances where an employee has been in breach of his own statutory duty under s. 13 of the 2005 Act to take “reasonable care to protect his safety”. Mr. Bowell was found to have been contributory negligent in the way he was carrying stock of 7up which obscured his vision in the direction he was walking, even though this might be characterised as “inattention” or “inadvertence” rather than a positive act on the part of the employee. Damages were reduced by 30%.

Question 40

O’Reilly v. Irish Rail (

Answer 40

an employee was injured when he walked off a moving train. The defendant was found liable for allowing such a practice to persist uncorrected, but the plaintiff was found to be contributorily negligent for not having sufficient regard for his own safety.

Question 41

Corr v. IBC Vehicles

Answer 41

the difficult issue of an employee’s suicide was addressed in circumstances where an employee was physically injured through his employer’s negligence and suffered severe depression. It was held that it would be inappropriate to reduce the damages to be awarded to the claimant on the basis of the deceased’s contributory negligence in the absence of satisfactory material on which to decide whether such a reduction should be made, and in what amount.

Question 42

Where do you find the obligations of employees in the Health and Safety Act?

Answer 42

Section 13

Question 43

What oversees Bullying?

Answer 43

Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 (SI No. 674/2020)

Question 44

What is Worplace Bullying?

Answer 44

repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.

Question 45

What are the three key features in Bullying?

Answer 45

· Repeated;
· Inappropriate;
· Undermining of the dignity of the employee at work.

Question 46

Sweeney v. Board of Management of Ballinteer Community College

Answer 46

held that “isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references” could amount to bullying.

Question 47

Browne v. Minister for Justice

Answer 47

The court is of the view that both the actions of senior management and of the more junior gardaí were reasonably foreseeable to undermine and cause injury to the plaintiff. The fixing of the plaintiff’s name and signature to a political leaflet advertising a meeting associated with undesirable political elements can only be designed to undermine the plaintiff as indeed can the removal or theft from his locker of exhibits. The continued removal of the plaintiff’s right to drive a garda vehicle, the threatening of a criminal fraud investigation to a disputed trivial claim for overtime and the continuing removal of the plaintiff’s right to carry a firearm also as found were attempts to punish the plaintiff and were clearly constituted to undermine the plaintiff in his role as a garda and it was reasonably foreseeable that injury would result.

Question 48

Quigley v. Complex Tooling and Moulding

Answer 48

the High Court had found that the employer owed its employee a duty to take reasonable steps to protect him from bullying at work. The plaintiff alleged that he was subject to ageist comments and threats that humiliated him and undermined his confidence at work and that he had complained about this conduct on a number of occasions. The plaintiff suffered depression. On appeal, the Supreme Court upheld the findings of the High Court concerning the duty of care to protect an employee from bullying but found for the defendant on the issue of causation. Fennelly J explained that the plaintiff’s injuries were more likely to be caused subsequent to the dismissal of the plaintiff and as a result of the unfair dismissal proceedings taken by the plaintiff:

Question 49

Ruffley v. The Board of Management of St. Anne’s School

Answer 49

The issue in that case was whether a flawed disciplinary process could amount to bullying, as well as amounting to “repeated” behaviour.

What is involved here was a disciplinary process where the school authorities, for reasons best known to themselves, entrenched themselves in a dugout of justification whereby they could admit no fault. This is not bullying. The conduct was not at that extreme and repetitive level. It is, instead, a disciplinary process that has gone wrong. It must clearly be acknowledged, however, that the reason that it went wrong had nothing to do with Úna Ruffley but was entirely down to a lamentable failure to rethink by the school.

Question 50

Employment Equality Act 1998: Section 8

Answer 50

prohibits discrimination in the workplace on nine grounds: gender, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the Travelling Community.

Question 51

Glynn v. Minister for Justice

Answer 51

Workplace stress= actionable

Occupational Stress is not actionable.

Question 52

Maher v. Jabil Global Services Limited

Answer 52

when assessing liability for workplace stress the court must ask three questions:

(a) Has the plaintiff suffered an injury to his or her health as opposed to what might be described as ordinary occupational stress?
(b) If so is that injury attributable to the workplace?

(c) If so was the harm suffered to the particular employee concerned
reasonably foreseeable in all the circumstances?

Question 53

What are the facts of Maher v. Jabil Global Services Limited

Answer 53

the plaintiff was employed by the defendant as a supervisor which involved working on IT equipment supplied by Dell. During the course of 2001 the Dell programme grew very rapidly. In July the plaintiff was appointed to the position of shift manager. Having taken up the position of shift manager, the plaintiff began to suffer from what was eventually diagnosed as stress, although the initial diagnosis suggested the possibility of heart trouble. This led to the plaintiff being out sick from October 2001 until the end of the year. He then returned to work, in early January 2002, having had consultations with representatives of the defendant and having undergone a medical assessment on behalf of the defendant. On his return, the plaintiff was assigned to different work. He continued working until March 2002, except for a number of days absence during that period, when he went out on relatively permanent sick leave. This lasted until he gave notice of the termination of his employment effective in mid-October 2002. The plaintiff claimed that the amount of work which he was required to do and, in particular, the pressure under which he was placed by management to achieve targets which he described as unrealistic gave rise to his stress and occurred in circumstances where his employers knew or ought to have known that such harm was a likely consequence. In respect of the different work he was assigned from January 2002, it was contended that the defendant in effect gave the plaintiff a “non-job” which exposed him to humiliation amongst his fellow workers to whom it would be obvious that he had been, in practice, demoted. The plaintiff claimed that as a result of certain treatment to which he was subjected in the course of his employment with the defendant he suffered significant psychological harm. The plaintiff sought damages for personal injuries.

Question 54

Berber v. Dunnes Stores Limited

Answer 54

he plaintiff was able to satisfy all three aspects of the Maher test in the High Court. In that case the plaintiff was a buyer in the company but his role within the company changed around 2000 and he was moved to one of the company’s stores in Blanchardstown as a store manager. The plaintiff took exception to this move and viewed it as a demotion. The plaintiff alleged his treatment by his employer in the course of and after his move to the Blanchardstown store exacerbated his Crohn’s disease, which he had suffered from for many years and which recurred at intervals, and further caused him stress resulting in him taking sick leave. Laffoy J held that the plaintiff had suffered an injury to his health, as opposed to mere ordinary occupational stress, namely, a psychiatric condition known as “adjustment disorder” that exacerbated the plaintiff’s Crohn’s disease symptoms and hampered the treatment of those symptoms. The physical and psychological harm which the plaintiff suffered were caused as a result of the stress generated by the manner in which he was dealt with by the defendant and this harm was also reasonably foreseeable.

On Appeal:

The Supreme Court found that while the defendant’s injury was foreseeable, as the employer was on notice of the plaintiff’s suffering from stress, the actions of the employer in the circumstances were reasonable. The Supreme Court found as fact that the employer behaved reasonably in the circumstances (and therefore was not in breach of its duty of care) and the employee had behaved unreasonably in refusing to co-operate with the employer and in particular objecting “to written communications to him being sent to him directly” and requiring “that all such communications should be sent to his solicitor”. The Supreme Court also found that the plaintiff’s behaviour was “damaging to the [employment] relationship and unreasonable”. The Court also held that the employer had “responded reasonably to each incident as it arose and the alternative available to the [employer] was to abdicate from all control of the manner in which the [plaintiff] would carry out the duties of his employment.”

Question 55

Finnegan J (delivering the judgment of the Court) quoted with approval from the judgment of Hale L.J (as she then was) in Hatton v. Sunderland [2002] 2 All ER 1 the following general principles to be applied in employment stress cases:

Answer 55

1. The ordinary principles of employer’s liability apply.
2. The threshold question is whether the kind of harm to the particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
4. The employer is generally entitled to take what he is told by his employee (including what he is told by the employee’s medical adviser) at face value unless there is good reason to think to the contrary.
5. The indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
6. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicability of preventing it, and the justifications for running the risk.
7. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
8. If the only reasonable and effective steps would have been to dismiss or demote the employee the employer will not be in breach of duty in allowing a willing employee to continue in the job.
9. In all cases it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
10. The claimant must show that the breach of duty caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.

Question 56

Vicarious liability for employees

Answer 56

The law is sometimes prepared to hold one person liable for the wrong committed by another person even though the person held liable is not at fault in the accepted sense of the word. Thus the law may hold the employer liable for the wrongs of an employee … in spite of the fact that the employer … may not have been at fault in any way. When the law imposes liability in these circumstances we speak of the employer … being “vicariously liable”.

Question 57

Employer and Employee are concurrent wrong doers in what circumstance and under what section of CLA?

Answer 57

Where an employer is vicariously liable for the wrongs of his employee both the employer and the employee are concurrent wrongdoers.

Section 11 of the Civil Liability Act 1961 provides:
(1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.
(2) Without prejudice to the generality of subsection (1) of this section— (a) persons may become concurrent wrongdoers as a result of
vicarious liability of one for another . . . . [Emphasis added.]

Question 58

Employment Equality Act 1998 and Discrimination

Answer 58

Holds that for acts of discrimination carried out by employee- employer is vicariously liable.

(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
….
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.

Question 59

Roche v. Patrick Kelly & Co Limited

Answer 59

If the primary wrongdoer is an independent contractor, i.e., not an employee, the necessary element of control will usually be lacking, and no issue of vicarious liability will usually arise. For example, if one hires a plumber to fix a broken pipe in a private house the plumber is usually an independent contractor (self- employed) and is not an employee. An independent contractor is told what to do, while an employee is not only told what to do but also how he must do it

Question 60

Phelan v. Coillte Teoranta

Answer 60

Exception where an independent contractor can cause vicarious liability.

defendant liable for the actions of an independent contractor, Mr Carwood, on the basis that “in practical terms the degree of control that was exercisable by Coillte over Mr Carwood was the same as one would expect a master to have over a tradesman servant”.

Question 61

What is the essence of vicarious liability in Torts?

Answer 61

“[t]he essential idea is that the defendant should be liable for torts that may fairly be regarded as risks of his business activities, whether they are committed for the purpose of furthering those activities or not.”

Question 62

Dowling v. Moore

Answer 62

In some cases, the employer is also at fault and may be primarily liable for the wrong in question.

employee was assigned the task of delivering parcels using a pony and van. While delivering the parcels the pony and van were left unattended. The pony took fright and injured the plaintiff’s horse. The employee was negligent in leaving the pony and van unattended. However, it was impossible for him to both attend to the pony and van and deliver the parcels at the same time. Therefore, his employer was also negligent in not operating a safe system of work.

Question 63

What is the Course of Employment Rule

Answer 63

The traditional position has been that the negligent act of the employee should be performed in the course of his employment. The employer will be responsible for both (a) a wrongful act committed by the employee and authorised by the employer and (b) a wrongful and unauthorised mode of doing an act authorised by the employer.

Question 64

Salmond Test

Answer 64

A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.

But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes—although improper modes—of doing them.

Question 65

Johnson & Johnson Ltd v. C.P. Security

Answer 65

the defendant was found to be vicariously liable for the theft of the plaintiff’s property by one of its security employees on the basis that the defendant was specifically hired to keep safe the plaintiff’s property.

Question 66

Warren v Henlys Ltd.

Answer 66

a customer at a petrol station had an angry confrontation with the attendant, who wrongly suspected the customer of trying to make off without payment.

The customer became enraged at the manner in which he was spoken to by the attendant. After paying for the petrol, the customer saw a passing police car and drove off after it. He complained to the police officer about the attendant’s conduct and persuaded the officer to return with him to the petrol station.

The officer listened to both men and indicated that he did not think that it was a police matter, whereupon the customer said that he would report the attendant to his employer. The officer was on the point of leaving, when the attendant punched the customer in the face, knocking him to the ground.

The fact the claimant had left the scene, and the context in which the assault occurred when he had returned with the police officer to pursue a complaint against the attendant was found to be significant in finding the employer was not vicariously liable in the circumstances

Question 67

Lister v. Hesley Hall [2002] 1 AC 215.

Answer 67

Canadian case:

In that case the House of Lords emphasised the “very close connection” between the wrong of the employee and his employment.

The claimants were resident in a boarding house attached to a school owned and managed by the defendants. The warden of the boarding house employed by the defendants, without their knowledge, systematically sexually abused the claimants. The claimants claimed damages against the defendants for the personal injuries involved, contending that the defendants had been negligent in their care, selection and control of the warden, alternatively that they were vicariously liable for the torts committed by him.

The Court of Appeal allowed an appeal by the defendants, holding that the warden’s acts could not be regarded as an unauthorised mode of carrying out his authorised duties. The House of Lords, however, held that having regard to the circumstances of the warden’s employment, including the close contact with the pupils and the inherent risks that it involved, there was a sufficient connection between the work that he had been employed to do and the acts of abuse that he had committed for those acts to be regarded as having been committed within the scope of his employment and the defendants should be held vicariously liable for them.

Question 68

Close Connection Test

Answer 68

Primarily used in sexual abuse cases.

held that having regard to the circumstances of the warden’s employment, including the close contact with the pupils and the inherent risks that it involved, there was a sufficient connection between the work that he had been employed to do and the acts of abuse that he had committed for those acts to be regarded as having been committed within the scope of his employment and the defendants should be held vicariously liable for them.

The school was responsible for the care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school’s responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys.

Question 69

O’Keeffe v. Hickey

Answer 69

Supreme Court accepted the close connection:

Firstly, a master may, in principle, be made liable even for criminal acts which he has not expressly authorised, provided the acts were committed in the course of the servant’s employment.

Secondly, the master may, in certain circumstances, even be responsible for acts which he has expressly prohibited. Everything depends on the circumstances. . . .

Question 70

Delahunty v South Eastern Health Board

Answer 70

held that there was no such close connection. The employee of the orphanage had abused a visitor, not an inmate.

Question 71

WM Morrison Supermarkets v. Various Claimants

Answer 71

UK Case:

Not always clear in either jurisdiction where there will be a close connection case or a frolic of his own:

This case arose out of the unlawful dissemination online of the personal data of 100,000 employees by “S”, an employee who bore a grievance against his employer. A number of affected employees who brought an action against Morrisons were initially successful in their claim that Morrisons was vicariously liable for S’s acts. However, in the Supreme Court it was held that both the trial judge and Court of Appeal had misapplied relevant case law in finding that the leaking of data was within “field of activities” S had been assigned. He was not furthering his employer’s business but engaged purely on a “frolic of his own” in leaking the data. As such, Morrisons bore no vicarious liability for his acts.