Employer's and Vicarious Liability Flashcards
Which case is associated with establishing employer’s personal duty of care?
Wilsons & Clyde Coal Co Ltd v English [1938]
What is the employer’s personal duty of care? in essence
take reasonable care to ensure employee’s health and safety at work
What are the 4 components of ENDDC?
- Competent workforce
- Adequate material and equipment
- A safe system of working
- A safe workplace
LIMB 1- COMPETENT WORKFORCE- provide case examples
Waters v Commissioner of Police for the Metropolis [2000]
Hudson v Ridge Manufacturing Co [1957]- joker colleague
LIMB 2- MATERIAL AND EQUIPMENT; which statute governs this duty?
Employer’s Liability (Defective Equipment) Act 1969
Why was ELDE act 1969 enacted?
to overcome the decision in Davie [1959]- employee was left without compensation were the manufacturer could not be found.
How can an employer avoid liability with regards to failure to provide safety equipment? Think- causation. Give case law.- fell down and died
by proving that even if such equipment was provided, the employee would not have used it
McWilliam [1962]
LIMB 3- A safe system of working. Give case law- clue dermatitis
Pape v Cumbria CC [1992]- provided rubber gloves, but did not warn the cleaner that she could contract dermatitis from the cleaning products going on her skin
Ensuring a safe system is not always enough. The employer needs to ensure it actually operates.
Mullaney [2001]- awareness that employees can be careless as to risks
Jebson [2000]- drunk soldiers case; there was no supervisor present at the back of the truck
duty of care extends past physical safety. Consider psychiatric/ economic- provide case law
stress and suicide- Cobb v IBC Vehicles [2008];Hatton [2002];
providing a reference- Spring v Guardian Assurance [1995]
LIMB 4- A safe workplace- think of the extent
reasonably safe not entirely safe- Latimer v AEC Ltd [1953]- flooded factory; D put sawdust, couldn’t cover entire floor
Provide some justifications for the imposition of vicarious liability
- Employer is likely to be in a position to compensate the claimant- ‘deeper pockets’
- The tort will have been committed as a result of an activity often directed by the employer
- Employer takes on the risks carried with employing the employee
The requirement for employment- VL- what is the old test for this? + case law
Stephenson Jordan & Harrison Ltd v McDonall and Evans [1952]- control on what is done and how it is done
Christian Brothers case impacted VL significantly
shifted from control to managed/directed- much wider scope- ‘akin to employment approach’
Prisoners fall into akin to employment category
Cox v Ministry of Justice [2016]
Local authority and foster parents- akin to employment
Armes v Nottinghamshire CC [2017]
the expansion of ‘akin to employment’ category was crushed- case law
Barclays Bank v Various Claimants [2020]- tortfeasor’s activities were not an integral part of the activities carried out by the business
Which cases followed the more restrictive approach to ‘akin to employment’ category? post barclays
TVZ and others v Manchester City Football Club Ltd [2022]- not liable for sexual abuse by a former coach- he was never employed by the club
Blackpool FC v DSN [2021]- not liable for the actions of an unpaid scout
MXX v A secondary school [2022]- not liable for sexual assault by former pupil on unpaid work experience
What could be an alternative if claimant cannot rely on VL?
non-delegable duty of care- remember wilsons
the close-connection test- VL
Lister [2001]
Why was the case of Mohamud [2016] critisised?
for making the close-connection test too easy to satisfy- policy considerations
Recent SC decisions aim to clarify the law with regards to close connection (VL)? think to misuse of private info tort
WM Morrison is a return to a narrower formulation of the test found in Lister compared to broader approach in Mohamud
claimant fell an died; never wore safety equipment at work
McWilliam v Arol [1962]
employer needs to provide a proper system of working and instruct employees- dermatitis
Pape v Cumbria County Council [1992]
employer took reasonable steps to provide a safe workplace- sawdust; oil; factory
Latimer v AEC Ltd [1953]
provide competent workforce- bouncer at nightclub
Mattis v Pollock [2003]
employee suffered eye injury due to defective tool- this led to the Employer’s Liability (Defective Equipment) Act 1969
Davie v Bew Merton Board Mills Ltd [1959]
employer’s responsibility to keep their employees safe when working on 3rd Party premises- yes argument
McDermid v Nash Dredging & Reclamation Co Ltd [1987]
employer’s responsibility to keep their employees safe when working on a 3rd party premises- reasonable steps argument
Wilson v Tyneside Window Cleaning [1958]; Cook v Square D Ltd [1992]
fourfold test for VL- Commercial Risk Factors- case law
control, ownership of tools, chance of profits and risk of loss- Ready Mixed Concrete [1968]
a person may be regarded as employee of more than one organisation- VL
Viasystems (Tyneside) Ltd [2006]
uber drivers and other workers through apps are employees- case law
Pimlico Plumbers v Smith [2018]
In the case of Mohamud [2016] the Lister test is narrowed. What is now to be considered when establishing close connection?
1) What the function or field of activities was and
2) whether there was a sufficient connection between the position in which he was employed and the wrongful conduct to make it right for the employer to be held liable.
VL can occur in case of intentional acts- attack each other
Walbank [2012]
company can be VL for acts at work organised social events
Bellman [2018]
delivery cases- is the detour in the course of employment?
Storey v Ashton-independent journey; Hilton v Burton- frolic of his own
merely offering counseling services does not discharge breach (psychiatric harm)
Daw v Intel [2007]
the need for foreseeability in psychiatric harm
French v SS of Sussex [2006]
whether or not a statutory duty creates a civil cause of action
access Parliament’s intentions- Hague [1991]
statutory protection to wear safety boots may not be intended to protect against frost bites
Fytche [2004]
