Employer's Liability and Vicarious Liability Flashcards
Consider the duty of care owed by an employer to employees.
Which ONE OR MORE of the following is / are NOT an aspect of that duty?
Provision of a safe place of work and safe system of work.
Provision of adequate remuneration in accordance with minimum wage regulations.
Provision of a fair period of annual leave.
Provision of competent fellow staff and safe plant and equipment.
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Well done. The correct answers are B and C. The scope of the employer’s duty of care in negligence does not extend to provision of adequate remuneration and fair annual leave.
An employer’s duty of care in negligence does include: provision of competent fellow staff, safe plant and equipment, a safe place of work and safe system of work.
Which ONE of the following BEST describes the standard of care which an employer owes to employees?
To operate a safe system of work.
To see that employees do not suffer injury during the course of employment.
To take reasonable care for employees’ safety.
To see that all employees are properly trained.
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Well done. The correct answer is C. The statement which best describes the standard of care required of an employer is: to take reasonable care for employees’ safety.
The employer’s duty does cover provision of a safe system of work, and this would include provision of proper training, with a view to preventing injury. However, the duty is not absolute – it is one of reasonable care. So, an accurate statement of the employer’s duty needs to refer to taking reasonable care for employees’ safety.
The duty which an employer owes to employees is said to be non-delegable.
Which ONE of the following BEST explains the meaning of non-delegable in this context?
The employer is responsible for all harm suffered.
The employer has the burden of proving that reasonable care was taken.
The employer has a duty to see that reasonable care is taken.
The employer is responsible even if reasonable care has been taken.
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Well done. The correct answer is C. The statement which best describes the non-delegable nature of the employer’s duty is: the employer has a duty to see that reasonable care is taken. The employer can delegate a task to another person but cannot delegate the duty of care. So, if the person to whom the task is delegated fails to take reasonable care for the safety of the employer’s employees, the employer will be in breach of duty. Provided reasonable care has been taken, the employer will not be in breach of duty. The burden of proving lack of reasonable care remains with the claimant employee.
In which ONE of the following situations is a duty of care to prevent occupational stress most likely to arise.
David is asked to take on extra work to cover for a colleague’s maternity leave. To keep up he has to work long hours and complains to his line manager that he is finding it difficult to cope. He is promised some extra help but nothing happens. He has now suffered a nervous breakdown.
John volunteers to take on extra work as he is hoping to impress his boss and win promotion. He struggles to cope but does not say so as he fears he would be considered weak. He has now suffered a nervous breakdown.
Amanda is going through a messy divorce which means she cannot concentrate properly at work and is struggling. She is a private person and does not discuss her personal problems and the impact on her work with anyone. She is now on sick leave with depression.
Fred has recently lost his young son who died in a road accident. He discusses the problems he is having in coping with his grief with his boss at work who is sympathetic. However Fred finds himself unable to cope with the simplest of task. He has now been diagnosed with pathological grief disorder.
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Well done. The correct answer is A. A duty will arise if injury to health through stress at work is reasonably foreseeable. In A, David has, by talking to his line manager made it known he cannot cope and this is likely to trigger a duty of care. In contrast, in B and C the employers appear to be ignorant of the problems the employees are facing. Unless there are some obvious other signs which ought to alert the employer to problems, a duty is less likely to arise. In D, although the employer is aware of Fred’s position the illness Fred suffers does not appear to be caused by occupational stress rather it derives from his personal life.
Which ONE OR MORE of the following are NOT requirements for establishing vicarious liability on the part of an employer?
The tortfeasor is an employee.
The tortfeasor acted in the course of his / her employment.
The tortfeasor acted with the authority of the employer.
The employer was at fault in failing to exercise proper control over the employee.
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Well done. The correct answers are C and D. These are not requirements for establishing vicarious liability.
To establish vicarious liability on the part of an employer, the claimant must show that the tortfeasor is an employee and that the tortfeasor acted in the course of his / her employment. It is not necessary to show that the tortfeasor acted with the authority of the employer, or that the employer was at fault in failing to exercise proper control over the employee.
Ed is employed by Bill as a mechanic in Bill’s garage. One day, as a joke, Ed turns a high pressure hose on Jack, a fellow employee, and injures him.
Which ONE of the following statements is most likely to be CORRECT?
Bill will certainly be vicariously liable for Ed’s prank.
Bill will only be in breach of his common law duty to provide competent staff if he already knew that Ed had a reputation for playing practical jokes.
Bill will be strictly liable to Jack in any event for failing to provide competent staff.
Bill will be vicariously liable for Ed’s prank if he is in the habit of playing such pranks.
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Well done. B is the correct answer. Bill will only be in breach of his common law duty to provide competent staff if he already knew that Ed had a reputation for playing practical jokes. An employee must commit a tort in the course of their employment for vicarious liability to apply.
Which one of the following alternatives correctly describes when breach of the employer’s instructions will put an employee outside the course of their employment?
When the instructions relate to the manner in which the employee performs their job
When the instructions relate to the scope of the employee’s job.
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Well done. The correct answer is B. Breach of the employer’s instructions will only put the employee outside the course of their employment when the instructions relate to the scope of the employee’s job.
Is the following statement TRUE OR FALSE?
An employer may be vicariously liable even where an employee commits a tort intentionally and for their own purposes.
True
False
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Well done. The statement is true. An employee who commits a tort intentionally and for their own purposes may remain within the course of their employment if the tort was so closely connected with the employment that it would be fair and just to hold the employer vicariously liable.
Is the following statement TRUE OR FALSE?
If one employee causes an injury to another but is acting outside the course of their employment, the employer will never be liable to the injured employee.
True
False
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Well done. The statement is false. The employer’s personal duty to their employees includes the provision of competent fellow staff. If an employer has failed to take reasonable care to ensure that staff are competent, the employer may be liable to staff injured by the incompetent employee – even if acting outside the course of their employment
Which ONE of the following ALTERNATIVE statements is correct?
Where an employer is vicariously liable for a tort committed by an employee during the course of their employment, the claimant must decide whether to sue the individual employee or the employer.
Where an employer is vicariously liable for a tort committed by an employee during the course of their employment, the claimant can sue both the individual employee and the employer.
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The correct answer is B. The employee who commits the tort remains liable to the person harmed, even where the employer is also vicariously liable. So, the claimant can sue both the individual employee and the employer.
A man is injured at work. A forklift truck driver drives into an over-stacked shelving unit, causing it to fall onto the man’s foot. The man is wearing steel toe capped boots supplied by his employers.
The warehouse foreman was aware that the shelving was over-stacked. Although he had not done anything about it, he had cordoned off the area.
The forklift truck driver was driving the forklift for the first time and it was clear from his CV that he had no previous experience of driving forklifts. He had only started at the warehouse the week before and had received no training on how to operate it.
Which of the following statements best describes which common law duty the man’s employers have breached?
The duty to take reasonable steps to provide a safe place of work
The duty to take reasonable steps to provide competent staff.
The duty to take reasonable steps to provide adequate equipment.
The duty to take reasonable steps to provide warning notices.
The absolute duty to ensure the safety of employees.
.
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Well done. Option B is the best answer because the forklift truck driver is not competent. In not training the forklift truck driver or supervising him on the first time of driving it the man’s employer has not provided competent staff. Arguably leaving the shelves over-stacked shows that the supervisor is also lacking competence. Wilsons & Clyde Coal Co Ltd v English [1937] 3 All ER 628.
Option A is wrong because steps had been taken to cordon the area off around the over-stacked shelves.
Option C is wrong because adequate equipment has been provided.
Option D is wrong because the injury was not caused because of the lack of warning notices. Provision of warning notices is part of the safe system of work.
Option E is wrong because the duty is not an absolute one. It is a duty to take reasonable care
A solicitor’s client is an employee of Plasticware Ltd and works in its factory as an operator of a machine that makes plastic cups. Plasticware Ltd have contracted with Machine Ltd for the maintenance of its plant and equipment.
Machine Ltd had installed a fence to guard the dangerous moving parts on the plastic cup machine. When the client first began to use the machine, they discovered that, although there was a safety guard over the dangerous moving parts on the plastic cup machine, the safety guard could easily be moved to one side. The client found that this made their work on the machine much quicker. Due to this, the client developed the habit of moving the safety guard to one side when they were working on the machine.
One day the client caught their hand in the machine and suffered severe injury, necessitating the amputation of their hand.
Which of the following statements best explains whether Plasticware Ltd has breached the duty of care that it owes to your client?
No, because Plasticware Ltd have supplied safe plant and equipment as there was a safety guard around the dangerous parts of the machine.
No, because Plasticware Ltd took all reasonable care in selecting Machine Ltd to carry out the maintenance of its plant and equipment.
No, because the client was at fault in moving the safety guard to one side.
Yes, because the duty to provide a safe system of work is relevant as the client should not have been able to move the safety guard and continue working on the machine.
Yes, because Plasticware Ltd will automatically be found to be liable in negligence as there is a regulation under the Health and Safety at Work etc Act 1974 that covers safety guards.
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Well done. D is correct because the duty to provide a safe system of work is relevant and the client should not have been able to move the safety guard and continue working on the machine (the usual safeguard is that such machines should automatically switch off if a safety guard is moved).
A is incorrect because, the fact that Plasticware Ltd may (arguably) have supplied safe plant and equipment will not, in itself, mean that it will not be found to have breached other elements of the duty of care that it owes its employees.
B is incorrect because the duty of care Plasticware Ltd owes its employees is personal and non-delegable. While the task of maintaining the plant and equipment has been contracted out to Machine Ltd, this is irrelevant as it cannot contract out of the duty of care it owes its employees.
C is incorrect because while this may be relevant to the issue of the defence of contributory negligence, it is not relevant to whether the employer has breached its duty of care. Defences are only considered after the liability under the elements of the relevant tort (here duty, breach and causation) has been established.
E is incorrect because a breach of any regulation under the Health and Safety at Work etc Act 1974 does not automatically lead to a finding that there has been a breach of a duty of care in negligence. The breach of the regulation is, however, relevant to the breach of duty question in negligence.
A company has been notified of a claim for damages for occupational stress by a former employee. The former employee was the company’s human resources (HR) manager. Prior to their resignation, the former employee dealt with redundancy dismissals of several staff. The former employee has been diagnosed with depression and alleges that this was caused by the actions of the company.
The company has instructed its solicitor to defend the claim. The company’s instructions are that they were aware that dealing with the redundancies was a very stressful task and that a director therefore offered to help the former employee on a number of occasions. However, the former employee told the director that they were happy to deal with redundancies on their own.
Which of the following statements best explains whether the company would owe a duty of care to the former employee for occupational stress?
Yes, because there is an established duty of care between employers and their employees.
Yes, because there is an established duty of care between employers and their employees. The relevant aspect of the duty is a safe system of work.
Yes, injury to health through stress at work was reasonably foreseeable because the former employee was carrying out a particularly stressful task.
No, because the former employee was neither at risk of foreseeable physical injury nor the witness to a shocking event involving someone they were in a close tie of love and affection with.
No, because injury to health through stress at work was not reasonably foreseeable because the former employee was a HR manager and the former employee told the director that they were happy to deal with redundancies on their own.
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Well done. E is the correct answer. Employers are (under the Hatton Guidelines) entitled to take what an employee tells them at face value. The facts indicate that there was nothing to suggest that injury to health through stress at work was reasonably foreseeable.
A is wrong because the established duty of care between employers and their employees only covers physical injuries and not occupational stress ie pure psychological harm.
B is wrong for the same reason. (It is correct, however, that the duty to provide a safe system of work can extend to an employee who has suffered stress as a result of their work).
C correctly states the ‘threshold question’ from Hatton that determines whether an employee would be owed a duty of care for occupational stress. However, C is incorrect because (under the Hatton Guidelines) an employer is generally entitled to assume an employee was up to the normal pressures of the job. Dealing with redundancies is (unfortunately) a normal part of a HR manager’s job.
D is wrong because it seeks to apply the primary and secondary victim tests for the duty of care in cases of pure psychological harm. These tests do not apply to claims for occupational stress.
An employee who cannot read suffers skin irritation at work as he fails to wear protective gloves when working with a new chemical which is a skin irritant. His employer provided online training for all employees about the dangers of the new chemical and has put written notices up warning employees to wear gloves. The employer also instructed their foreman to check all employees were wearing gloves when working with the new chemical but the foreman failed to carry out that instruction.
Which of the following statements best describes whether the employee can potentially bring a claim for his skin irritation against his employer?
The employee will not have a claim as his employer is not in breach of their duty to him as they have provided adequate training and cannot be expected to know the employee is unable to read.
The employee will not have a claim. Although the employer has a duty to provide a safe system of work, they have reasonably delegated the performance of that duty to the foreman.
The employee will have a claim. The employer is in breach of their duty to provide a safe system of work as they should anticipate some employees may be unable to read and so provide alternative training. Their duty is also non-delegable so entrusting enforcement to the foreman will not prevent the employer being in breach of duty.
The employee will not have a claim as the employer has acted reasonably and is not in breach of any duty owed to the employee.
The employee will have a claim as the duty owed by the employer is interpreted strictly by the courts.
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Well done. Option C is the correct answer because the duty owed by an employer is a duty to take reasonable care, taking into account foreseeable risks. As it is foreseeable that some workers may not be able to read, providing only written training and warnings is likely to breach the duty to provide a safe system of work. This duty is also non-delegable (Wilsons & Clyde Coal Ltd v English [1938]) and so the employer will still be in breach of its duty if the foreman fails to enforce the wearing of gloves.
Option A is wrong because the standard of care expected of the employer will reflect foreseeable risk and it is foreseeable that not all employees can read.
Option B is wrong because the duty is non-delegable.
Option D is wrong because the employer is likely to be in breach of their duty as discussed above.
Option E is wrong because although the duty is strictly interpreted in that it is non-delegable, it remains a duty to take reasonable care. The employer is not therefore strictly liable.
A solicitor’s client is an employee of Plasticware Ltd and worked in its factory as an operator of a machine that makes plastic cups. Plasticware Ltd have contracted with Machine Ltd for the maintenance of its plant and equipment.
Machine Ltd had installed a fence to guard the dangerous moving parts on the plastic cup machine. When the client first began to use the machine, they discovered that the safety guard could easily be moved to one side. The client developed the habit of moving the safety guard to one side when they were working on the machine because they could work more quickly.
Another employee, the supervisor in charge of the client’s work, had noticed this practice. At first the supervisor told the client that they must only use the machine with the fence in place. However, the client ignored this instruction and continued to move the fence. Eventually, the supervisor gave up ordering the client to replace the fence when using the machine.
One day the client caught their hand in the machine and suffered severe injury, necessitating the amputation of their hand.
Which of the following statements best explains why Plasticware Ltd may be held to be vicariously liable for the client’s injuries?
Because Machine Ltd were negligent in carrying out the task of maintaining the equipment.
Because Plasticware Ltd were negligent by breaching its duty to provide a safe system of work.
Because the supervisor breached the duty of care they owed the client. This breach caused a loss to the client that was not too remote. This employee was therefore negligent during the course of their employment.
Because, while the supervisor breached the duty of care they owed the client, the supervisor is unlikely to have the funds to compensate the client.
Because Plasticware Ltd are insured to cover the client’s loss.
.
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You have selected the wrong option on this occasion. C is correct as it sets out all three requirements for vicarious liability ie an employee must commit a tort in the course of their employment.
A is wrong because Machine Ltd are an independent contractor. Employers can only be held vicariously liable for the acts of their employees.
B is wrong because it sets out one of the reasons why Plasticware Ltd may be personally liable to the client in negligence. It does not explain why they may also be held to be vicariously liable.
D is wrong because, while it does partially explain one element of the requirement for vicarious liability (a tort must have been committed), it does not deal with all three of the requirements. The fact that the supervisor may not have the funds to compensate the client is irrelevant to the legal issue.
E is wrong for similar reasons to D- while the availability of insurance may be one of the general justifications for the principle of vicarious liability, it does not explain why Plasticware Ltd may be held to be vicariously liable to this particular claimant
