*EMPLOYERS’ LIABILITY AND VICARIOUS LIABILITY*

Question 1

What is the common law duty expected from employers?

Answer 1

• Wilsons & Clyde Coal Co ltd v English
• there are three separate duties are to take reasonable steps to provide:
  1) competent staff
  2) adequate material
  3) a proper system of work and supervision
• Latimer v AEC Ltd
• take reasonable steps to provide a safe space of work

Question 2

What did Lord Wright describe the duty owed by an employer to employee as being?

Answer 2

• ‘personal to the employer’
• which mean that an employer cannot escape liability for the negligent performance of its duty by saying that it delegated its performance to someone else (eg an independent contractor or one of its own employees) whom it reasonably believed to be competent to perform it.
• it is a non- delegable duty
• it is the employer’s sole responsibility

Question 3

Why is the duty of an employer non-delegable?

Answer 3

• the relationship between employer and employee is a close and personal relationship one based on mutual trust and confidence
• the employee should not have to identity exactly who was to blame for the accident
• if it were delegable then the actual tortfeasor may not have insurance

Question 4

Hudson v Ridge Manufacturing Co ltd

Answer 4

• important factor that employer knew of the risk the member of staff was posing to fellow staff

Question 5

Waters v Commissioner of Police or the Metropolis

Answer 5

• the risk being posed by the worker could be psychological as well as physical harm
• e.g bullying

Question 6

What practical issues should an employer consider in light of this duty to provide competent staff?

Answer 6

• selection of staff
• provision of training
• provision of supervision if necessary
• dismissal of staff who despite adequate training continue to pose risk

Question 7

In what kinds of ways may machinery not be adequate?

Answer 7

• problems caused by wear and tear of machines
• problems cause by lack of servicing and inspection
• lack of safety devices e.g hand guards
• inherent defects in machine themeselves

Question 8

What is the purpose of s1 of the Employer’s Liability (Defective Equipment) Act 1969?

Answer 8

• saves an employee from experiencing the difficulty of identifying and suing the manufacturers
• they can simply sue the employer instead

Question 9

Under s1 of the Employer’s Liability (Defective Equipment Act) 1969 what does the claimant need to establish?

Answer 9

• fault of the part of someone
• causation ie that the fault of the third party caused the employee’s injury

Question 10

How can employers implement a safe system of work?

Answer 10

• provide adequate training for your employees in the operation of the new system
• ensure the employees are supervised
• monitor operation to see if rules are being complied with
• take disciplinary action against any employee who fails to comply with the system

Question 11

There is an overlap between duties set out in Wilson & Clyde Coal and the Occupiers’ Liability Act 1957. Outline the ways in which the employers’ common law duty is more onerous than the duty under the 1957 Act.

Answer 11

• under the 1957 Act, an employer can comply with its duty by delegating work to an independent contractor (s 2(4)(b)). The employer’s common law duty is non- delegable
• the 1957 Act duty only applies to premises of which the employer is ‘occupier’ whereas the common law duty states that an employer has to assess premises to which their employees are sent for dangers and then, if such dangers are found, devise and implement a system of work so as to eradicate or minimise those
  dangers.

Question 12

Walker v Northumberland County Council

Answer 12

• duty to provide safe system of work extends to employee that has suffered stress as a result of their work

Question 13

What are the guidelines surrounding whether a duty of care arises for stress at work under Hatton v Sutherland?

Answer 13

• is injury to health through stress at work reasonably foreseeable?
• consider the nature and extent of work
• are there any signs from the employer that they may be struggling?

Question 14

How will the court determine whether an employer has breached their duty of care?

Answer 14

• if it fails to meet the standard of care to be expected of a reasonable employer in its position. The court will assess the standard of care to be expected by looking at all the circumstances of the case, including the magnitude of the foreseeable risk and also the cost and practicality of precautions.

Question 15

Paris v Stephy Borough Council

Answer 15

• the council was entitled to provide extra steps of care to the claimant because they knew he only had one functioning eye
• therefore the duty of care owed to claimants is completely individual and should be tailored to their personalised needs

Question 16

Why is it rare for an employer to raise volenti in these circumstances as a defence?

Answer 16

• because often there is difficulty in showing that the employee freely consented to run the risk of injury
• they are usually just expected to follow orders
• refusing to carry out jobs could result in being fired

Question 17

Caswell v Powell Duffryn Associated Collieries ltd

Answer 17

• courts are hesitant to agree with CN when it comes to mine and factory workers compared to office workers
• this is due to the noise strain and risks associated with factory work

Question 18

Explain what the Health and Safety Act 1974 covers.

Answer 18

• obligations to carry out risk assessments
• provision of information and training for employees
• provision and maintenance of work equipment
• provision of personal protective equipment
• lifting and handling
• noise at work
• lighting in the workplace
• maintenance of floors to protect against risks of slipping and tripping.

Question 19

Does the HSWA does still hold any relevant in this area of tort?

Answer 19

• s47 has been amended by the ERRA 2013 which provides that the health and safety regulations imposed by the HSWA are not actionable under tort anymore
• it does still have great relevance in determining whether the precautions taken by the employer met the standard of the reasonable employer

Question 20

What is vicarious liability? What three conditions must be met for it to apply?

Answer 20

• it’s the liability of one person for torts committed by another
• employee must’ve committed a tort
  1) the worker must be in an employee or in a relationship akin to employment (as opposed to independent contractor)
  2) the employee must have committed a tort
  3) the employee’s tort must have been committed in the course of employment

Question 21

James is employed by Watt & Co in their factory. One day he negligently loses control of the drill he is using to carry out his work, and Ashraf, a fellow employee, is injured. Who can Ashraf sue?

Answer 21

• he can sue either Watt & Co who is vicariously liable
• he can sue James as primarily liable
• or he can sue BOTH as jointly liable

Question 22

List some of the moral and practical reasons why we have vicarious liability.

Answer 22

M:
- encourages employers to push their employees to take care for safety of others

P:
- employees may not be worth suing financially therefore employers are more likely t one able to stand the loss
- employers in better position to insure against liability
- employers can pass the cost of insuring against liability on to customers through increases prices

Question 23

What is the principal difference between independent contractor and employee?

Answer 23

• independent contractor has the primary interest in the business as it is held on their own account
• employee is paid a wage and therefore it is the employer who has the business interest
• employers provides a service for a sole employee
• independent contractor provides service for several people

Question 24

Various Claimants v Catholic Child Welfare Society and others developed a test to distinguish between employee and independent contractor. What were the guidelines?

Answer 24

• 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
• the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
• the employee’s activity is likely to be part of the business activity of the employer;
• the employer, by employing the employee to carry on the activity, will have created the risk of the tort being committed by the employee;
• the employee will, to a greater or lesser degree, have been under the control of the employer.

Question 25

What does the Salmond classic definition of course of employment entail?

Answer 25

• that the employer will be vicariously liable for:

1) wrongful acts which it has authorised
2) wrongful and unauthorised modes of carrying out an authorised act

Question 26

Poland v Parr

Question 27

Century Insurance v NI Road Transport Board

Question 28

Harrison v Michelin Tyre Co ltd

Question 29

Using Rose v Plenty, when is an act considered prohibited by an employer?

Answer 29

• if the act is done to further the employer’s business then it will be consider as done in the course of employment even if it has been prohibited
• often referred to where the prohibition relates to the manner of doing the job rather than determining the scope of the job

Question 30

Can an employer be vicariously liable even if the employee intentionally committed the tort?

Answer 30

• there have been cases where this has happened
• e.g Lloyd v Grace, Smith and Co
• the fraud stemmed from something the employer had authorised him to do

Question 31

What did Lister and Others v Hesley Hall ltd say about when employers can be vicariously liable for an intentional wrongful act?

Answer 31

• when there is a close connection between the work they were employed to do and the acts they committed
• it was said in this case that although the Salmond definition was useful it was not a statutory definition and therefore courts could go beyond it to airily decide a case

Question 32

Mohamud v WM Morrison Supermarkets plc provided more guidance on the Lister principle. What were they?

Answer 32

• the court must first ask what function or field of activities has been entrusted by the employer to the employee ie what is the nature of their job?
• secondly court myst decide whether there was a sufficient connection between the position in which they were employed and their wrongful conduct to make it fair and just to make employer held vicariously liable

Question 33

How is it determined whether the employee is on a ‘frolic of their own’?

Answer 33

• the extent to which they have deviated from their delegated business role/ geographical divergence
• the purpose of his deviation form the authorised task
• are they still going about their employer’s business at the time?

Question 34

What right does the employer have to an indemnity (its full loss) from the employee who actually committed the tort?

Answer 34

• a full right under Lister v Romford Ice and Cold Storage Co ltd