Employer's Liability

Question 1

Give 3 examples of where there will be a presumption that a statute will allow a tortious cause of action. 2 cases.

Answer 1

1. Statute protects limited class - Lonrho v Shell.
2. Statute does not provide sanction - Lonrho v Shell (and if it does, if the sanction is inadequate compared to the claimant’s loss - Groves v Wimborne).
3. Statute complements (rather than contradicts) common law.

Question 2

When will a duty of care be owed in respect of breach of statutory duty? Case.

Answer 2

When claimant falls within protected class - Chipchase v British Titan.

Question 3

How will a breach of statutory duty be established? Cases.

Answer 3

1. Absolute obligation - strict liability - Starks v Post Office.
2. Qualified duty - claimant must prove breach - Nimmo v Alexander Cowan.

Question 4

What is the test for causation in fact for breach of statutory duty? Case.

Answer 4

But for test - McWilliams v Arol.

Question 5

What is the test for causation in law for breach of statutory duty? Case.

Answer 5

No need to consider remoteness - loss simply needs to be of the type the statute was intended to prevent - Gorris v Scott.

Question 6

Will the defence of consent be available in respect of breach of statutory duty? Case.

Answer 6

No - Wheeler v New Merton Mills.

Question 7

What is the courts approach to finding contributory negligence in noisy, repetitive factory work? Case.

Answer 7

Hesitant. Caswell v Powell Duffryn.

Question 8

Is there an established duty of care in common law negligence between employer and employee? 4 manifestations. Cases.

Answer 8

Wilson & Clyde Coal v English:
1. Competent staff.
2. Adequate plant, equipment and machinery.
3. Safe system of work & supervision.
Latimer v AEC:
4. Safe place of work (i.e. premises).

Question 9

Give two provisos to the duty to provide competent staff. Case.

Answer 9

Waters:

1. Employer must be aware of risk.
2. Duty will extend to psychiatric harm, e.g. caused by bullying.

Question 10

Will the duty to provide a safe system of work include stress-induced psychiatric harm? Case. Proviso? Case.

Answer 10

Yes - Walker v Northumberland. But risk must be reasonably foreseeable - Hatton v Sutherland.

Question 11

Will the duty to provide a safe place of work include out-of-office locations? Case.

Answer 11

Yes - General Cleaning Contractors v Christmas.

Question 12

Will consent usually be allowed as a defence for employers to negligence claims?

Answer 12

Very rarely - Smith v Baker.

Question 13

What is the test to establish whether someone is an employee for the purposes of vicarious liability? Case.

Answer 13

Ready Mixed Concrete.

1. Work for remuneration?
2. Subject to control?
3. Does not have to provide tools, staff, etc?

Question 14

According to Salmond, for what acts will an employer be vicariously liable? Case applying?

Answer 14

Lister v Helsey Hall.

1. Acts authorised by employer, expressly or impliedly.
2. Unauthorised modes of carrying out authorised acts.

Question 15

Will employers be vicariously liable for personal torts? Case. Exception. Case.

Answer 15

No - Warren v Henleys. Unless closely connected to employment - Lister v Helsey Hall.

Question 16

What is the test to establish a frolic? Case.

Answer 16

Hilton v Burton.

1. Extent - minor detour or major departure?
2. Purpose of deviation - still carrying out employer’s business?