Employers liability

Question 1

Two ways of sueing an employer for compensation

Answer 1

negligence

vicarious liability

Question 2

Wilsons & Clyde Coal v English

Answer 2

In fulfilling duty to not to cause injury the employer is suspected to provide:

competent fellow workers
safe place to work
safe equipment
safe working system

proper supervision

Question 3

to succeed for negligence against the employer what must they prove

Answer 3

duty of care, breach and causation - has the employer fallen below the standard of the reasonable employer in the circumstances

Question 4

Rules for employers common law duties to their employees

Answer 4

1. duty is non-delegable
2. obligation to provide safe equipment
3. provide and maintain a safe system of work
4. provide competent fellow workers
5. dealing with practical jokers

Question 5

Rules for employers common law duties to their employees - Explain obligation to provide safe equipment

Answer 5

Employers Liability Defective Equipment Act 1969 - the employer is at fault as they purchased it so the employer now can sue in contract

Question 6

Rules for employers common law duties to their employees - Explain providing and maintaining a safe system of work

Answer 6

Safe and supervised.

General cleaning v Christmas - experienced window cleaners using a risky system

Question 7

Rules for employers common law duties to their employees - Providing competent workers

Answer 7

if a company hires an incompetent worker and another employee gets injured then the employer is I breach of a primary duty to the victim.

Primary duty is different to vicarious liability of the employer for any torts committed by one of their employees in the course of employment.

Question 8

Rules for employers common law duties to their employees - practical jokers

Answer 8

An employer is only vicariously liable for an employees torts when carried out in the course of employment. Pj are rarley carried out in the course of employment.

Question 9

Walker v Northumberland County Council [1995] 1 All ER 737

Answer 9

Social worker had a breakdown - promise of a lighter workload - went back to work - another breakdown = sued

Decision - employers did owe him a duty of care not to injure him through imposition of stress

Question 10

Sutherland v Hatton

Answer 10

number of cases (stress) approved the decision in Walker but added refinements.

Question 11

What did the court of appeal add to the law in Sutherland v Hatton

Answer 11

1. duty will only be imposed if the employee is foreseeably vulnerable to stress-related illness.
2. job = inevitably stressful but they decided there is no specific job which gives the rise automatically to the foreseeability of stress-induced illness.
3. Employers who take reasonable steps e.g. free counselling cannot been breach of duty

Question 12

Did the employer fall below the standard of the reasonable employer in the circumstances? As usual, the factors taken into account in deciding breach of duty include:

Answer 12

How likely is it that injury will result from the employers’ acts or
omissions?

How serious would such injury be likely to be?

How easy would it have been for the employer to have taken
precautions which would have avoided the injury?

Did the social utility of the employer’s activity justify taking the risks that
resulted in the injury?

Question 13

Breach of duty involving employers liability

Watt v Hertfordshire County Council [1954] 1 WLR 835

Answer 13

In a car accident a woman was trapped under a heavy vehicle. A nearby fire station was contacted. The fire station had one heavy jack that was suitable for lifting the vehicle off the trapped woman. However, this jack was so large that it should only be transported in one special vehicle. Unfortunately this vehicle was not at the fire station because it was in use on another emergency. The officer in charge decided that they would risk transporting the jack in another of their vehicles. On the way to rescue the woman the jack toppled over in the back of the vehicle and injured one of the firemen named Watt. In Watt’s claim the court decided that the officer was justified in taking the risk because of the social utility of trying to rescue the trapped woman. Accordingly the officer’s decision did not amount to a breach of duty.

Question 14

Breach of duty involving employers liability

Latimer v AEC Ltd [1953] AC 643

Answer 14

After very heavy rain the defendant’s factory floor was flooded. The water was mixed with oil and the floor became very slippery. The defendants made substantial efforts to clear the water and they put down as much sawdust as they had. Nevertheless the claimant Latimer slipped on a wet patch and was injured. The court decided that the defendants had not fallen below the standard of the reasonable employer because to take the ultimate precaution of shutting down the factory was not required in the circumstances.

Question 15

Breach of duty involving employers liability

Withers v Perry Chain [1961] 1 WLR 1314 CA

Answer 15

The claimant worked for Perry Chain and in premises where there was a substantial risk of contact with grease. She suffered a reaction to the grease and developed dermatitis. The defendants moved her to the least greasy job they could find but she still suffered another reaction. The court decided that the employers had done all that a reasonable employer should be required do in the circumstances and that they were not in breach.

Question 16

causation in stress related illness

Answer 16

convincing medical evidence will need to establish the connection between breach and causation.

Barber - employers may only be liable for part of the stress

Question 17

The Law Reform (Contributory Negligence) Act 1945.

Answer 17

the employer is free to argue contributory negligence on the part of the claimant and seek a reduction in damages payable.

eg. workers who perform dull repetitive tasks and then make mistake will not be liable for contributory negligence but those who always ignore instructions could see their damages reduced.

Question 18

Vicarious Liability Policy

Answer 18

employers are vicariously liable for the torts of their employees committed in the course of their employment. (rule of law)

Question 19

Justifications that employers are vicariously liable for the torts of their employees committed in the course of their employment.

Answer 19

1. employer benefits from the work done and so should carry the risk of harm done by the employee
2. The injury wouldnt have occurred if they had not employed the employee
3. Making the employer liable means the claimant is much more likely to receive compensation
4. Argued that the employer can insure against liability

Question 20

What are the rules about the circumstances in which vicarious liability applies.

Answer 20

1. only applies to employees and those in a relationship akin to employment
2. Liability for torts intentionally committed by the employee

Question 21

explain the rules when vicarious liability applies - only applies to employees and those in a relationship akin to employment

Answer 21

Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56 - set out five criteria to determine whether there is a relationship of employment

Question 22

Five criteria to determine whether there is a relationship of employment

Answer 22

(i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability
ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer
iii) The employee’s activity is likely to be part of the business activity of the employer
iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee
v) The employee will, to a greater or lesser degree, have been under the control of the employer.

Question 23

explain the rules when vicarious liability applies - Liability for torts intentionally committed by the employee

Answer 23

an employer can be vicariously liable for torts intentionally committed by the employee.

This sounds harsh especially if direct instructions have been ignored

Question 24

leading case defining ‘in the course of employment’?

Answer 24

Poland v Parr [1927] 1 KB 263 CA

a boy stole from a barrow. The employee in charge of the barrow hit the boy and knocked him into the road where he was hit by a vehicle.

decision - The claimant successfully argued that the worker was impliedly authorised to protect his master’s property, and so was within the course of employment when he struck the blow.

Question 25

what is the distinction between prohibitions which restrict the SCOPE of employment vs restrictions which relate to the MANNER in how the task is done

Answer 25

If the employee does something outside the scope of his permitted employment, the employer is not vicariously liable.
If the employee performs a task in a manner that was prohibited by the employer, and commits a tort in the process, the employer is still vicariously liable.

Question 26

Twine v Beans Express

Answer 26

the driver was expressly forbidden to pick up hitch-hikers. Nevertheless he did so, crashed and killed the hitch-hiker.

The court held that this was outside the scope of his employment and the employer was not vicariously liable.

Question 27

Rose v Plenty

Answer 27

he driver of a milk-float was expressly prohibited from picking up boys to help deliver the milk. In violation of this prohibition he picked up the nine year old Francis Rose to help.

Francis sat on the back of the milk float while taking a corner and the driver negligently crushed Francis’ foot against a curb.

On this occasion the court decided that the prohibition concerned the manner in which the milkman did his work, and so the Dairy was vicariously liable for his tort.

Lord Denning focussed on the fact that the purpose of picking up young Francis Rose was to do work which assisted the dairy. This is one way to distinguish this case from Twine v Bean’s Express.

Question 28

Lister v Hesley Hall [2002]

1 AC 215 HL

Answer 28

the warden of a children’s home sexually abused a number of the children. The Warden was in prison and not worth suing.

On the facts, the Home was not primarily liable because it was not at fault in appointing the Warden in the first place.

CLAIM -The victim brought a claim alleging that the home which had employed the warden was vicariously liable for the intentional torts he had committed.

The case went to the House of Lords and was highly controversial.