Employers liability & Vicarious Liability

Question 1

Who is the Defendant here?

Answer 1

The employer- they are getting sued

Question 2

Who is the claimant here?

Answer 2

For employers liability: The employee

For Vicarious Liability: Third party

Question 3

What is Employers liability?

Answer 3

This is where the employer owes a personal, non delegable duty of care to their workers (employees) to ensure their safety at work

Key case: Wilsons & Clyde Coal v English 1938

Question 4

How many parties are involved in employers liability claims?

Answer 4

2 parties

Employer + Employee

Question 5

How many parties are involved in vicarious liability claims?

Answer 5

3 parties

Employer + Employee + Third Party

Question 6

What does Wilsons & Clyde Coal v English 1938 tell us?

Answer 6

This case tells us that if the employer delegate this duty to someone else to oversee the employees safety, they will still be liable because this duty is non delegable.

Question 7

What are the various duties an employer has to their workers?

Answer 7

Set out in Wilsons & Clyde Coal v English 1938

This case laid out the various duties an employer has:

1) A competent workforce
2) Adequate material and equipment
3) A safe system of working (including effective supervision)
4) A safe workplace

Court said “its a single duty, just different manifestations”

Question 8

What is the first duty employers have to workers?

Answer 8

Employer must take reasonable steps to ensure a competent workforce i.e. providing good training to ensure employees are not harmed

a. Harassment: Waters v Commissioner of Met Police [2000]- Waters said she had been raped by another employee. Employer held liable for failing to address this and didn’t provide enough supervision
b. Harmful conduct: Hudson v Ridge [1957]- employee doing pranks which injured another employee. Boss didn’t do anything and held liable

Question 9

What is the second duty that employers have for their workers?

Answer 9

2) Adequate material and equipment
Employer needs to take relevant steps to provide adequate materials and equipment

a. Employer’s Liability (Defective Equipment) Act 1969- so even if there is a defective piece of equipment, the employer will still be liable
b. Causation: McWilliams v Sir William Arrol [1962]- employee not wearing harness provided by employee not worn died. So If the employee doesn’t or wouldn’t use the equipment provided, then the case will fail on causation- claim failed on but for test

Question 10

What is the third duty employers have to their workers?

Answer 10

3) Safe system of work
a. Physical safety: Pape v Cumbria CC [1992]- cleaner contracted skin condition from cleaning supplies. Employer gave her gloves. Court held boss liable because they hadn’t told her she had to wear them
b. Psychiatric wellbeing: Corr v IBC Vehicles [2008]- employee suffered severe depression after work accident- led suicide. Employer held liable
c. Must take steps to see it is implemented: Mullaney v Chief Constable of West Midlands Police [2001]- it is not enough for employer to create a safe system of work. They have to make sure the steps are implemented.

Question 11

What is the fourth duty employers have to their workers?

Answer 11

4) A safe workplace
a. Latimer v AEC [1953]- C slipped on oily substance on floor. Boss had spread sawdust- so they had taken reasonable steps to prevent the injury

Question 12

What is Vicarious Liability?

Answer 12

This is about the employer being held liable for the employees tortious acts in the course of their employment.

This is a strict liability regime- meaning D will be liable regardless- this is harsh

Question 13

How do you establish vicarious liability?

Answer 13

1. There must be an employer-employee relationship, or one akin to employment
2. The employee committed a tortious act…
3. … in the course of their employment

Set out in Various Claimants v Catholic Child Welfare Society [2012]

Question 14

What is the first step in establishing vicarious liability?

Answer 14

1) There must be an employment relationship

To see if there is a relationship between two parties, we use the composite test as set out in Market investigations v Minister of Social Security 1969:

Key question: Is the person who has engaged himself to perform these services performing them as a person in business on his own account?

This case also set out a non exhaustive list of some factors that would be relevant in this determination:
o Control
o Provides own equipment
o Hires own helpers
o Degree of financial risk taken
o Degree of responsibility for investment and management

Question 15

How has the employement relationship requirement for V liability been extended?

Answer 15

Its been extended to include situations more than just employment.

So to relationships akin to employment

• Various Claimants v Catholic Child Welfare Society [2012]- here the relationship was treated as akin to employment based on the 5 policy reasons. – to do with sexually abusing kids in school
• Cox v Ministry of Justice [2016]- extended to prisoners

Question 16

What is the second requirement to establishing vicarious liability?

Answer 16

2) There must be a tortious act committed by claimant

This can be any tort- but most commonly it would be:

• Negligence
• Assault & Battery
• Harassment

In a PQ, be clear if employee has committed a tort. If not explicitly stated, then you need to establish it by going though all relevant steps- duty breach, causation etc

Question 17

What is the third step for establishing vicarious liability?

Answer 17

3) This tort must be committed in the course of their employment.

The test used here is ‘Close Connection Test’ which adapts the previous Salmond test.

This is set out in Lister v Hesley Hall 2001

Key question here is: Was there sufficient connection between the wrongful act and what the employer authorised?

If there is sufficient connection, employer will be held vicariously liable

Key case: Mattis v Pollock 2003- Employer held vicariously liable as the bouncer who was employed had to keep order and discipline in nightclub but ended up assaulting customer. Assault was closely connected to his employment therefore employer was VL

Question 18

How had the close connection test for third step establishing VL been expanded?

Answer 18

The close connection test was expanded by Mohamed v Morrisons 2016

Court expanded close connection test by looking at:

1) range of activities of the employer
2) there only needs to be “sufficient” connection between authorised work + wrongful conduct
3) right for employer to be held liable (social justice principle)

Here C was brutally assaulted by employee on presence of employers