Employer's liability and vicarious liability

Question 1

Who must C be in a case of employer’s liability?

Answer 1

C must be an employee of D

Question 2

Is Vicarious / Secondary Liability a tort in its own right?

Answer 2

no

mechanism that can be used by a claimant to sue an employer, for a tort committed by one of the employer’s employees.

The employer is not the tortfeasor they’re not at fault. They’re being held liable in relation to a fault committed by their employee.

This makes more sense because the employer is more likely to be able to repay damages to the party who suffered a loss.

Question 3

What are the 2 main features of an employer’s DoC?

Answer 3

1. DoC owed by employer to employee is personal and non-delegable

• Regardless of who the employer uses to carry out tasks, the ultimate responsibility for the employee’s safety rests with the employer. The employer can delegate performance of the duty, but he can’t delegate liability for the breach of such duty.
• Employers are directly liable if those they have entrusted with responsibility fail to exercise reasonable care in respect of an employee’s safety.

2. An employer owes a duty to take reasonable precautions to ensure an employee’s safety. (Wilsons & Clyde Coal v English, 1938).

Question 4

Employer’s DoC: To provide safe and competent employees

Answer 4

• duty to select and employ competent staff. If a member of staff behaves in a way that poses a continuing risk to the safety of others, then it may be necessary to dismiss that person.
• Actions involving incompetent staff are usually taken under vicarious liability rather than employers’ primary liability, but if the claimant is an employee you must remember the possibility of an action for the breach of this primary duty as well.

Examples of employees dismissal for being incompetent and unprofessional: Black v Fife Coal Ltd [1912], Hudson v Ridge Manufacturing Company Ltd [1957]

Question 5

Employer’s DoC: to provide safe and proper plant and equipment

Answer 5

safe and proper plant and equipment

including necessary safety features and protective clothing

Employer should also insist upon employees wearing protective clothing/ adhering to safety measures

Question 6

Employer’s DoC: provide safe place of work/ premises

Answer 6

duty to take reasonable care to ensure premises are safe;

extends to ‘third party’ premises where employees will need to do some/ all their work

Question 7

Employer’s DoC: to provide safe systems of work

Answer 7

providing instructors, training, warning and supervision

Wilsons and Clyde Coal Ltd v English established that it was the personal duty of the employer to see to the safety of the system of work, and that liability cannot be escaped by delegating performance of that duty to someone else.

Question 8

What are some other non-common law sources of employer’s DoC

Answer 8

statute

contract of employment

note: also a further obligation not to provide an excessive workload to employee

Question 9

How does the standard of DoC compare between:

employer <-> employee
employer <-> independent contractor

Answer 9

employer <-> employee will generally receive a higher level of protection than for other workers

Question 10

What is the main enforcement mechanism to confer practical protection on employees?

Answer 10

compulsory for employers to have insurance to cover such claims. Employers’ Liability (Compulsory Insurance) Act 1969 and the Employers’ Liability (Compulsory Insurance) Regulations 1998.

Question 11

What are the two main questions to ask when assessing whether an employer has fallen below the reasonable standard of care?

Answer 11

1. Has the employer taken into account an employee’s personal characteristics?

e.g: Paris v Stepney Borough Council [1951], the defendant/employer fell below the standard of care because he knew that the claimant was extremely vulnerable due to only having one good eye, and even though the risk of injury was small, the employer should have taken greater care to ensure he wore protective goggles in the course of his employment.

2. Only reasonable steps need to be taken

Withers v Perry Chain Co [1961], the employer’s duty of care to the employee with extremely sensitive skin was not breached when the employer failed to offer him alternative work which did not involve contact with chemicals, as he had no such alternative work available

Question 12

Causation for employer’s liability

Answer 12

Factual causation:

A common situation where factual causation is relevant concerns the provision of safety equipment. But-for-test  McWilliams v Sir William Arrol [1962]). Factual causation will be satisfied if the employee wouldn’t have suffered the harm but for the employer’s failure to provide safety equipment (and in more dangerous environments, specific instructions about safety equipment too).

Legal causation:

Arguments based on Novus Actus Interveniens are more difficult to establish within employer’s liability.

Question 13

In terms of remoteness, what is the court assessing?

Answer 13

Whether there is sufficent proximity between employer’s breach of DoC and employee’s loss

Question 14

What are the 4 defences for employer’s liability?

(note: these are the same as in negligence)

Answer 14

1. Consent

very hard to show in an employment context -> can only be successfully invoked in extreme circumstances where ‘there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss’ (ICI Ltd v Shatwell [1965]).

2. Contributory negligence (partial defence)

where there is evidence that the employee (C) failed to take reasonable care of his/ her own safety and the failure contributes to the loss suffered.

3. Act of god
4. Necessity

Question 15

What are the 2 categories of damages available for employer’s laibility?

Answer 15

General Damages

Special damages

Question 16

When does vicarious liability arise?

Answer 16

Where there is a specific relationship between parties

Question 17

What kind of liability could a D incur

Answer 17

strict liability - liability without fault

The justifications for imposing liability on a party not at fault are various:

1) That the employer is in a better financial position than the employee to compensate the victim.
2) The employer has both control and supervision over the employee,
3) The employee was chosen by the employer
4) The employer ultimately is the one obtaining benefits from the employee (benefit/burden)

Question 18

What are the 3 elements that C will need to show for employer to be held vicariously liable?

Answer 18

1. Tort has been committed by employer’s employee
2. Employee is actually an employee of the employer/ in a relationship akin to employment
3. Tort was committed in the course of the employee’s employment

Question 19

How to determine if the parties are in an employer/ employee relationship?

Answer 19

The tortfeasor will be an employee if:

• They’re paid/remunerated in exchange for their personal services -> If a worker has an unfettered right to send a substitute to do the work in his place (and the employer has no role in choosing that substitute), this cannot be an employment relationship.
• and there’s mutuality of obligations -> Where the worker is under no obligation to work (zero-hour contract), nor do the employers have any obligation to provide him with work, there is no employer / employee relationship.
• The employer has control over the tortfeasor (for example control the tasks they perform, how the tasks are done, who provides the tools, where and when the work is to be completed.)
• All the other contractual factors are consistent with an employer’s relationship.

o Tools & equipment is provided by the employer
o Tax/payee treatment as an employee rather than as an independent contractor.
o The employee being integrated within the organization
o The labelling of the relationship as an employment relationship.

Question 20

How to determine if the parties are in a relationship akin to an employer/ employee relationship?

Answer 20

-> if tortfeasor is not carrying out his own activities, look to the following criteria:

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 21

When will an employer be held liable where the tort was committed in the course of the employee’s employment/ quasi-employment

Answer 21

-> liable if there is a a “closeness of connection” between the employee’s wrongful act and his employment

Question 22

What is the test to establish if there is a a “closeness of connection” between the employee’s wrongful act and his employment

Answer 22

established in: Lister v Hesley Hall Ltd 2002 and was expanded in Mohamud v WM Morrison Supermarkets plc 2016

Two stages:

1. What functions have been entrusted by the employer to the employee. IE what is the nature of the employee’s job.
2. Was there a sufficient connection between the employee’s job and wrongful conduct to make it just for the employer to be liable.

Question 22

If an employee has been ‘lent’ -> which employer may be vicariously liable?

Answer 22

presumption: original employer will remain vicariously liable

rebuttal: (hard to rebut) unless it can be proven that the ‘new’ employers had more control over the employee at the time of the tort.

note: court will sometimes impose dual liability between both employers