Employers’ and Vicarious Liability Flashcards
Elements of vicarious liability
- was a tort committed? (ICI v Shatwell)
- was it committed by am employee?
- was it committed in the course of employment?
2nd element of vicarious liability (tests)
1) Control Test
Yewens v Noakes - The more control an employer exercises the more likely it is that the other party is an employee
BUT: Cassidy v Ministry of Health - hospital was found vicariously liable even though there was only limited control over the doctor
2) Organisation/Integration test
Stevenson, Jordan and Harrison v MacDonald & Evans - whether or not the worker is fully integrated within the organisation. The highier integration, the highier possibility it will be an employee.
3) Multiple/Economic reality test Ready Mixed Concrete v Minister of Pensions - 3 stage test. The factors to be considered are: a) remuneration; b) control c)contractual factors Warner Holidays v SS for Social Services - list of points the court should consider: * level of control * provision of tools and equipment * salary * sick pay * bearing the risk of profit * control over working hours * right/ability to do other work (Argent v Minister of Social Security) * labelling Massey v Crown Life Insurance and Ferguson v John Dawson - not conclusive, just a factor to be considered * mutuality of obligations O'Kelly v Trusthouse Forte
Lending employees
Mersey Docks and Harbour Board v Coggins and Griffiths (House of Lords) - as a general rule, the employer would remain vicariously liable. This presumption is rebuttable:
- who provided the equipment?
- who’s got the control?
BUT Viasystems v Thermal Transfer (Court of Appeal) - can sue both employers. In this case level of control must be equal.
Tort committed in the course of employment, if the wrongful act
- expressly or impliedly authorised by the employer; or
- incidental to the employee’s duty; or
- unauthorised way of doing smth authorised by the employer
In these cases employers were vicariously liable for their employees, since they were deemed to be performing authorised acts in an unauthorised manner
Limpus v London General Omnibus - plaintiff was injured as a result of a bus driver’s racing with another driver
Century Insurance v Northern Ireland Road Transport Board - lorry driver caused an exploration by carelessly smoking a cigarette whilst filling his lorry with petrol
In these cases employers escape the imposition of VL, since the employees were deemed to have been acting outside the scope of their employment
Beard v London General Omnibus - bus conductor tried to drive the bus
Daniels v Whetstone Entertainments - act of personal revenge outside the premises of the club, not in course of employment
Keppel Bus v Saab Bin Ahmad - bus conductor hit a passenger with his ticket machine
Special categories
1) Deviations from an unauthorised act
Storey v Ashton - driver returning from delivering wine as instructed by an employer was persuaded to set off on a deviation from the rout back to his employers premises.
Smith v Stages - 2 employees were injured in a car crash. As they have been paid travel expenses and they were within working hours, they were in the course of employment. Employees are generally outside the scope of their employment whilst traveling to and from work, unless on their employer’s business
2) Express prohibitions of the employer
Twine v Bean Express - despite express instructions not to do so, lorry driver picked a hitch-hiker, who was injured as a result of negligent driving. Court found that the hitch-hiker was a tress passer and the employee was not acting in the scope of his employment
cf
Rose v Plenty - 13-year old boy was injured whilst assisitng a milkman on his rounds. Due to the milman’s negligent driving, tha boy injured his leg. Denning found the employer VL on the basis that the prohibited act (enlisting the help of a boy) was done for the employer’s business.
3) Criminal acts and breach of statutory duty by employees.
Warren v Henleys - general rule, there is a presumption that such activity is outside the course of employment.
Heasmans v Clarity Cleaning - office was making long distance telephone calls. it was outside the course of employment
cf
Lister v Hesley Hall - sexual abuse committed by an employee of local authority children home. employer was vicariously liable. Look at the relative closeness of the connection between the nature of the employment and the particular tort.
Majrowski v Guy’s and St Thomas NHS Trust - the same test for breach of statutory duty
Primary liability. Duty of care
McDermid v Nash Dredging - duty of care imposed on employers is personal and non-delegable
3 duties of care
Wilsons and Clyde Coal v English:
- duty to provide a safe place of work, including materials and plant
- duty to operate a safe system of work, including supervision and instruction
- duty to provide an employee with competent fellow employees.
duty to operate a safe system of work
- Speed v Thomas Swift - employees will not always have proper regard for their own safety and it falls on the employer to take ultimate responsibility for making training instructions.
- General Cleaning Contractors v Christmas - window cleaner fell whilst cleaning the windows. Court found the employer liable, since it was his duty to devise safe ways of performing the tasks.
*Latimer v AEC - the duty is to take reasonable care. Not an absolute duty
cf cases concerned the taking of proper precautions to prevent contraction of dermatitis.
Clifford v Charles Challen - the employer was negligent in failing to keep protective substances on the premises and in failing, through its foreman, to ensure that workers used them.
Woods v Durable Suites - employer was found not to have been negligent in similar circumstances (vis versa). Employer is not bound to stand over workmen of age and experience every moment they are working.
duty to provide a safe place of work
- Smith v Charles Baker - there is an obligation on the employer to ensure that the workplace is a safe place for employees to be.
- Qualcast v Haynes - duty to provide safe machinery, plant and equipment.
- Bux v Slough Metals - common law duty went further than the statutory duty, requiring the employer to encourage or insist on the wearing of the goggles.
*Davie v New Merton Board Mills - damaged eye from the defective hammer which was purchased from reputable manufacturer. Employer was not held liable.
Though this decision was overruled by Parliament - s. 1(1) Employer’s Liability (Defective Equipment) Act 1969 - employer is liable for defective goods.
*Paris v Stepney Borough Council - one good eye, no good eye.
competent fellow employees
- negligent in selecting the staff
Black v Fire Coal - negligent manager caused an accident. Employer is liable - practical jokes
Hudson v Ridge Manufacturing - employer new that the employee had a habit of playing practical jokes. breach of duty to provide competent fellow employees.
Smith v Crossley Bros - one off prank, no breach
*bulling/harassment/victimisation
Harrison v Lawrence Murphy, The Chartered Secretary - female employee was harassed for several months by her line manager. The partners of the firm new about this. The firm settled for 50.000 pounds.
Breach
Latimer v AEC - only a reasonable level of precaution need to be taken, i.e. an objective test is used, based on the reasonable man.
Causation
McWilliams v Sir William Arrol - if the employer fails to provide safety equipment causation will not be satisfied if he can show that, even if it had been provided, the employee would not have used it
Defences
- Volenti
Bowater v Rowley Regis Corp - Generally, judges are very sceptical of this defence.
ICI Shatwell - can only be successfully invoked in extreme circumstances where there was a genuine full agreement, free from any kind of pressure, to assume risk of loss. - Contributory negligence
Governed by Law Reform (Contributory Negligence) Act1945.
Barrett v Ministry of Defence - self-induces intoxication
