Employers Liability-11 Flashcards
what are the three types of employers liability
1) primary’ –>liability of the employer himself under a non-delegable personal duty;
2) ‘vicarious’ –>liability for the tort of one employee committed against a fellow worker; and
3) Statutory –>liability for breach of statutory duty
Primary Liability–>what is non-delegable duty?
- An employer is under a non-delegable personal duty under common law to his employees to see that reasonable care is taken of them.
- This means that the employer may delegate the duty but cannot delegate the liability and legal responsibility attached to the duty.
PRIMARY LIABILITY-HEADS OF DUTY: COMPETENT STAFF
+ Hudson v Ridge Manufacturing case
- Employers owes a duty of care to their employees to ensure they hire competent fellow staff and provide effective supervision and training.
- Consider if they could be vicariously liable for the tort committed by one of their employees.
- Hudson v Ridge Manufacturing -> argued on the grounds of the employer’s duty to provide a competent workforce, rather than vicariously liability, avoiding potential issues relating to in course of employment.
- An employee was injured as a result of the consistent horseplay of another employee.
- Held: The employer should have done more to deter such behaviour even though a warning had already been given.
PRIMARY LIABILITY – HEADS OF DUTY: ADEQUATE MATERIALS
Smith V Baker
Employers’ Liability (Defective Equipment) Act 1969 s.1
McWilliam v Sir William
- SMITH V BAKER -> An employer has a ‘duty of taking reasonable care to provide proper appliances, and to maintain them in proper condition’
- An employer will not be liable at common law for injuries caused by defective equipment providing they took reasonable care -> however -> they may have statutory liability.
- Employers’ Liability (Defective Equipment) Act 1969 s.1
- ‘imposes liability on employers where equipment is faulty through the negligence of others’.
- If equipment had been provided would the injury still have occurred?
- McWilliam v Sir William -> Employer can avoid liability based on a causation argument.
- ‘But for’ the breach by the employer the employee still would have suffered the injury.
PRIMARY LIABILITY – HEADS OF DUTY: SAFE SYSTEM OF WORK
Safe system of work (supervision)
- May require an employer to give an employee proper instructions in the use of equipment and warnings against dangers.
Stress at the work place
- Mental health –> the obligation to provide a safe system of work extends to an employee’s mental health.
- • Evidence regarding a general practice of a particular trade or industry may be relevant in determining whether an employer was negligent.
(iv) Safe place of work (supervision)
An employer must take reasonable steps to see that the place of work is reasonably safe.
PRIMARY LIABILITY
- BREACH
- CAUSATION
- DEFENCES
-Breach–> The claimant has to show that some alternative system was practicable, and a precaution that a reasonable employer would have taken.
Causation–> Is the ‘but-for’ test satisfied? I.e. even if the system had been changed, would the employee have used it?
Defences–> contributory negligence and consent (sometimes illegality)
What is vicarious liability ?
- Vicarious liability is a form of liability without fault; i.e. strict liability.
Requirements for Vicarious liability?
(i) that the tortfeasor was D’s employee;
(ii) that the tortfeasor did in fact commit a tort; and
(iii) that the tortfeasor committed the tort in the course of employment.
Vicarious liability–> tortfeasor was D’s employee–>Cox v Ministry of Justice [2014]
- MoJ argued that there was no contractual relationship in place between the prisoner and the prison
- CA overturned decision on the basis that the activity being carried out by the prisoner was part of the prison’s activity in running the catering department of the prison.
Vicarious liability–> tortfeasor was D’s employee–> Armes v Nottinghamshire CC 2017
• Abuse committed by foster parents was committed in course of an activity carried on for the benefit of the local authority; the placement created a risk of abuse; the local authority exercised a significant degree of control over the foster parents – powers of approval, inspection, supervision and removal; the local authority had the means to pay damages.
VICARIOUS LIABILITY–>COURSE OF EMPLOYMENT
(i) their conduct is authorised by the employer;
(ii) their conduct is considered to be an unauthorised means of performing the job for which they are employed; or
(iii) If they engage in a frolic of their own
