Employers' liability and vicarious liability

Question 1

Common law duty

Employers’ liability

Answer 1

In the case of Wilsons and Clyde Coal Ltd v English [1938] it was specified that the employer is under a personal non-delegable duty to take reasonable measures to ensure the physical safety of his employees in the workplace by providing:

• A competent staff of employees (s. Hudson v Ridge Manufacturing Co Ltd [1957])
• Adequate material (s. McWilliams v Sir William Arrol & Co Ltd, Davie v New Merton Board Mills [1959], Employers’ Liability (Defective Equipment) Act 1969 s.1(1))
• A safe system of work (s. McDermid v Nash Dredging and Reclamation Co Ltd [1987])

Question 2

Safe system of work

Employers’ liability

Answer 2

• Effective supervision
• Warnings of potential dangers (s. General Cleaning Contractors v Christmas [1953])
• Includes a duty to protect the employee against psychiatric harm caused by workplace stress (s. Walker v Northumberland County Council [1995])

Question 3

Psychiatric harm caused by workplace stress

Employers’ liability

Answer 3

The common law duty of the employer under Wilsons and Clyde Coal Ltd v English [1938] includes a duty to protect employees against psychiatric harm caused by workplace stress (s. Walker v Northumberland County Council [1995], Sutherland v Hatton [2002].

Liability for breach of this duty needs to be distinguished from liability for infliction of nervous shock under Wilkinson v Downton [1897].

Question 4

Exceptions to the common law duty of employers

Employers’ liability

Answer 4

There are a number of cases in which the courts explicitly refused to impose a specific duty on the employer:

• No duty to protect the employee’s economic welfare (e.g. by arranging accident insurance, s. Reid v Rush and Tompkins Group plc [1990]).
• No duty to compensate for economic loss incurred due to criminal activities committed in pursuit of duties under the employment contract (s. Benyatov v Credit Suisse [2023])

Question 5

Vicarious liability

Answer 5

Vicarious liability generally refers to the strict liability of a person (who is not a tortfeasor) for a tort committed by someone else:

• Commission of a tort
• By an employee of the defendant
  
  • Distinguish from independent contractors (s. economic reality test, Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968])
  • Alternatively: ‘relationship akin to employment’
• In the course of employment: Sufficiently ‘close connection’ between wrongful act and employment (s. Lister v Helsey Hall (2001), Various Claimants v The Catholic Child Welfare Society (CCWS case) [2012])

It can be distinguished from the primary liability of employers in tort by the fact that it does not require a fault of the employer.