Employers' primary liability and vicarious liability

Question 1

What is employer’s primary liability? Does it apply to other types of workers automatically?

Answer 1

Law of negligence applied to employee/employer relationship; DOC on employers to take reasonable care for safety of employees

Does not automatically apply to other workers like independent contractors or even those in a relationship ‘akin to employment’ (but duty might still be owed another way!)

Question 2

What is vicarious liability?

Answer 2

Where one party is held liable for the torts of another

Not a tort but a determination of who is liable

In an employer/employee relationship there are three parties: 1) victim who suffers harm 2) employee that tortiously committed harm and 3) employer who might be vicariously liable for harm employee caused

Question 3

How is employers’ primary liability and employers’ vicarious liability distinguished?

Answer 3

• In employers’ primary liability claim the C is always an employee of the D (employee sues employer for breaching DOC)
• In a case of employers’ vicarious liability the C is not necessarily an employee but tort is committed by one of employer’s employees

Question 4

What does it mean for an employer’s duty of care to be ‘personal and non-delegable’?

Answer 4

Employers can delegate performance of the duty but not liability for beach; employers are directly liable if those they have entrusted with responsibility fail to exercise reasonable care re an employee’s safety

Ultimate responsibility of employee’s safety rests with employer

Question 5

What 4 things is the employer under a duty to provide?

Used instead of basic formulation of reasonable care owed

Answer 5

Employer’s duty to take reasonable precaution to ensure safety of employee includes obligation to provide:

1. Safe and competent employees;
2. Safe and proper plant and equipment;
3. Safe place of work/premises inc safe access and way out; and
4. Safe systems of work with adequate supervision and instruction

One single duty: take reasonable precaution to ensure employee’s safety while at work

Question 6

What does the obligation to provide safe and competent employees mean?

Answer 6

• An employer has a duty to select/employ competent staff (employer must (ought to) know about risk a worker imposes to other employees if they do)
• Breach if incompetent person employed or required to do a job not capable of doing

Hudson - employer hired a known prankster (repeatedly told off by foreman and should have been dimissed) and C succeeded in a claim against employer -

Question 7

Where one employee injures a fellow employee, what can there be in addition to a possible action against employer for breach of duty to select safe and competent employees?

Answer 7

• Action against employee who caused harm (likely to be a waste of time financially)
• Employer being vicariously liable

Question 8

What does the obligation to provide safe and proper plant and equipment mean? What is the limit?

Answer 8

Employer owes duty to provide and maintain safe machinery, plant and equipment (inc safety features and protective clothing)

Within reason…

Yorkshire Traction - C bus driver stabbed by bus driver and claimed D employer was negligent for not using protective screens - D argued screens could be dangerouslyt reflective and risk of assault in areas was low - court held employer not negligent

Question 9

What does the obligation to provide safe place of work mean? What does it extend to?

Answer 9

• Employer to take reasonable care that premises employee works in are safe
• Extends to premises not owned/occupied by employer i.e. third-party premises (but is generally less e.g. window-cleaning business)

Wilson - window cleaning company owed duty to take reasonable steps to ensure all locations that window cleaners cleaned windows at were safe - but what was expected re safety was less than in terms of own premises

Question 10

What does the obligation to provide a safe system of work mean? What might this require an employer to do for external sites?

Answer 10

• Includes physical layout of job, sequence in which work carried out, provision of warnings, notices, training and supervision, and issues of special instruction
• Employers may be under duty to go to site of work, assess risks and plan and organise safe system of work to minimise injury

Most frequently argued

General Cleaning - C employees had developed a dangerous method of climbing when cleaning windows rather than using ladder when they had not received instructions for sash windows - employers in breach

Question 11

In terms of providing a safe system of work, what will not be enough?

Answer 11

Not enough to provide; must take reasonable steps to ensure it is complied with

Bux - C workers splashed with molten metal and lost sight in one eye - D employer complied with statutory duty to provide safety goggles but court held that duty extended to requiring employer to encourage/insist on wearing the goggles

Question 12

Must instruction, persuasion or insistence be used for the wearing of protective equipment? What happens where an employee objects or refuses?

Answer 12

• Instruction, persuasion or insistence depends on nature and degree of risk of serious harm
• If refuse/object = employer may not be negligent for failing to enforce the use of safety equipment

Question 13

Is it enough to keep protective equipment where C works and allow them to ‘fetch it if they wished’?

Answer 13

No, especially if they discourage its effectiveness - Clifford - barrier cream (protects against dermatitits) kept available at store and employees were able to grab it, but foreman discouraged its use - employer was negligent for failing to provide cream and for ensuring foreman encouraged use

Cf Woods - barrier cream available and foreman made known to C they should use it and provided instructions on when/how to use it - not negligent

Question 14

How is the rule of breach applied in employer’s primary liability? What should especially be taken into account?

Answer 14

• Reasonable level of precaution taken based on the reasonable employer
• Should take into account employee’s personal characteristics e.g. Paris - employee with one good eye should be given protective goggles despite small risk of injury (significant consequences)

Question 15

How is the rule of causation applied in employer’s primary liability (where will causation not be satisfied?)? What will be necessary in the case of more dangerous working environments?

Specifically in context of provision of safety equipment

Answer 15

• Factual causation - if employer can show that even if safety equipment had been provided the employee would not have used it = causation not satisfied
• More dangerous working environments = may be necessary to give specific instruction re safety equipment or enforce its use (novus actus arguments harder to establish)

Question 16

Where is consent an acceptable defence in employers’ primary liability?

Answer 16

Can only be invoked in extreme circumstances where there is a genuine full agreement free ot any pressure to assume risk of loss

Question 17

Where does contributory negligence succeed as a defence in employers’ primary liability cases and what is its effect?

Answer 17

• Where there is evidence that C employee failed to take reasonable care of own safety and this contributed to loss suffered (e.g. failing to wear safety goggles)
• Damages reduced to extent considered just and equitable re C’s share in responsibility

Question 18

Why is vicarious liability described as a secondary form of liability?

Answer 18

D is being required to compensate the C for harm caused by another person’s actions

NB other person (employee) can also be claimed against

Question 19

Does fault need to be proved on part of the D (employer)?

Answer 19

No - D who is vicariously liable incurs strict liability

Strict liability = liability in the absence of fault

Question 20

What are the 3 elements needed to prove that B (employer) should be vicariously liable for a tort committed by A (employee)?

Answer 20

1. A tort has been committed by A
2. Party A was an employee of B (or is in a relationship akin to employment)
3. Tort was committed in the course of A’s (quasi-)employment

2 considered after 1 and 3

Question 21

Can an employer only be vicariously liable for negligence of their employees?

Answer 21

No - also intentional torts (e.g. battery)

Question 22

What is the test for determining whether a tort was committed in the course of employment?

Answer 22

The close connection test - if there was a ‘closeness of connection’ between employee’s wrongful act and their employment

• Court considers time tort committed and all relevant circumstances

Lister - warden was eploiting children and was able to because of position; tort committed on employer’s premises during working hours whilst caring for children in performing duties - employer vicariously liable

Question 23

What is the two-stage close connection test?

Answer 23

1. What functions or fields of activities have been entrusted by the employer to the employee (what is the nature of the job)?
2. Was there sufficient connection between the position in which they were employed and their wrongful conduct to make it just and fair for the employer to be held liable?

Mohamud - Petrol station employee committed battery on forecourt of petrol station - rude response of employee ‘close connected’ with duty of serving customer, escalated into physical abuse as a ‘seamless episode’ - was entrusted to deal with members of the public by Morrisons so should be responsible for his abuse of trust

Cf
Fletcher - C cyclist collided with employee of D (pedestrian crossing road without looking) - D had a shop and office on either side of road, tortfeasor was wearing company uniform, but happened 40 mins after shift and no evidence crossing road was linked to job - no close connection; impossible to know if crossing road was sufficiently connected to work

Question 24

Examples of where employee found to be acting in course of employment and employer vicariously liable

Answer 24

• Lorry driver caused explosion by smoking cigarette whilst filling up lorry (doing something authorised [filling up] albeit in an unauthorised manner [while smoking])
• Boy injured whilst assisting milkman on his rounds - unauthorised mode of performing task he was employed to carry out; act was done ‘for employer’s business’
• Two employees injured in car crash, who were being paid for travelling within working hours, were acting in course of employmnent

Question 25

Can an employer be held vicariously liable even where employee is on lunch break?

Answer 25

Yes - taking lunch break is a reasonably expected act of employee

Harvey - Workman injured colleague passenger while travelling during working hours to get lunch - incidental to workman’s work so within course of employment; stopping to take lunch break was reasonably expected act by employee

Question 26

If an employee’s act is unauthorised or expressly prohibited, will the employer be held vicariously liable?

Answer 26

Unlikely - will be deemed to have been a ‘frolic of their own’ - but can still be considered to be acting within the course of employment (e.g. milkman)

Question 27

Examples of where employer was not held vicariously liable

Answer 27

• Bus conductor (unauthorised to drive bus and not incidental to duties) ran over C
• Lorry driver picked up hitch hiker against express instructions who was then injured by negligent driving - found hitch hiker to be a trespasser and employee doing something expressly prohibited (and so outside of his employment)
• Driver returning from delivering wine for work was persuaded by colleague to deviate from route back to employer’s premises on which colleague C was injured - new route meant an independent journey entirely for own purposes

Question 28

What separates the case of milkman picking up child (employer vicariously liable) and lorry picking up hitch hiker (employer not vicariously liable)?

Why are the outcomes different?

Answer 28

• Milkman’s act was being done for purpose of employer’s business (boy helping milkman to deliver)
• Lorry driver picking up hitch hiker was not acting in scope of employment (was doing something expressly prohibited and not helping his job)

Question 29

What is an employer’s indemnity and when will it be allowed?

Answer 29

• Employer can seek indemnity from employee should they be forced to pay damages re employee’s tort - can claim back something from employee even though victim claims against employer
• Court will allow claim if it is ‘just and equitable’ to do so

Employer in reality will likely be only party sued (best finances)

Rarely exercised by insurers - who carry out employer’s litigation for them

Question 30

What is the difference between a contract of service and contract for services?

Answer 30

• Contract of service: services are provided in an employee/employer relationship
• Contract for services: services are provided by an independent contractor (not in an employee/employer relationship)

Question 31

How is an employment relationship identified?

I.e. are they an employee?

Answer 31

The multiple factors/economic reality test

Comes from Ready Mixed Concrete - X drove lorry carrying concrete mixer and was responsible for hiring, insuring and running lorry, paid by company on basis of mileage - no set hours, instructions on routes, or breaks and defined in contract as independent contractor, but company exercised control over uniform and colours of only lorry he could use for business - held he was an independent contractor and business in own account

Question 32

What is the 3 factors considered in the multiple factors test?

To decide if there is an employee/employer relationship

Answer 32

1. Remuneration in exchange for personal service and mutuality of obligations;
2. Control
3. All other contractual factors consistent with an employment relationship (provision of tools/equipment, tax/PAYE, integration into organisation, parties calling it an employment relationship, benefits of holiday and sick pay)

‘Control’ = over tasks to be done, how tasks performed, when and where

Question 33

What does remuneration and mutual obligations mean?

Answer 33

• Employee is being paid to fulfil duties personally (unfettered right to substitute someone else to do work in is not an employment relationship)
• Mutuality of obligations = employer required to provide work to employee who is required to do the work (0 hours contract unlikely to be deemed employee)

Question 34

How can control help to determine an employment relationship? What does control consist of?

Answer 34

• The greater the control, the more likely it will be that other party is an employee
• Control comprises tasks to be done, way in which tasks are performed, and when and where work completed

Question 35

Where is ‘a relationship akin to employment’ used?

Answer 35

In ‘doubtful cases’ where tortfeasor not an employee nor carrying out own independent business - can be vicarious liability here

Barclays - doctor assaulted number of young women he examined as a requirement for prospective employees of bank - doctor described as the “bank’s doctor” due to how often he was used and control over him by the bank, but still carrying out independent business as a medical practicioner with portfolio of clients only one of which was the bank (found to not be akin to employment and bank not vicariously liable)

Question 36

What will not be a case of ‘akin to employment’ and therefore will not mean vicarious liability?

NB goes employee > akin to employment > independent business (only first 2 have vicarious liability)

Answer 36

Where D carries on own independent business

Question 37

What is the test for relationship akin to employment? What should be considered?

Answer 37

Where D not carrying on own independent business, question is whether relationship is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability - consider if:

• Employer more likely to have means to compensate C than tortfeasor
• Tort committed as a result of activity being undertaken by tortfeasor on employer’s behalf
• Tortfeasor’s activity is part of business activity of employer
• By allowing tortfeasor to carry on activity, employer created risk of tort being committed; and
• Tortfeasor is, to a greater or lesser degree, under control of the employer

Cox - Found to be the case for a prisoner working within catering section who dropped sack of rice on to back of catering manager - paid small amount of money but in all other ways did not satisfy requirements of an employment rship but was also not carrying on own business. D should be liable still: tortfeasor carrying on activity on behalf of D integral to D’s business (feeding prisoners) and by doing so D created risk of tort being committed - fair, just and reasonable to hold D vicariously liable

Question 38

What is the rule for when one employer lends an employee to another employer?

Answer 38

General rule = original employer remains vicariously liable - but can be rebutted depending on control over worker by other employer and provision of equipment

Mersey Docks - crane driver and crane hired to Y who could instruct him as to work to be done on daily basis, but did not tell him how to operate crane - HOL found that crane driver was still employee of X as X had authority to tell A manner in which work should be done (A using X’s crane), paid A’s wages, could dismiss A, and duration of post was temporary

Question 39

Can both original and other employer be liable?

Answer 39

Yes - dual liability might occur where employee is lent to work for another employer and both employers are entitled and obliged to control employee’s actions so as to prevent negligent act = have an equal measure of control over tortfeasor

Question 40

Vicarious liability summary

Answer 40

• Employment relationship = multiple factors test (control, remuneration, and other contractual features similar to an employment relationship)
• Akin to employment = whether relationship is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability
• Independent business will not be vicariously liable

First two can be vicariously liable