Employers' Primary Liability and Vicarious Liability Flashcards
Which of the following is not part of the employer’s duty owed to its employees according to the traditional formulation in Wilsons and Clyde Coal Ltd v English?
(a)
Safe transport to and from a place of work
(b) Safe and competent employees.
(c)
Safe and proper plant and equipment.
(d)
Safe place of work/premises, including safe access and way out.
(e)
Safe systems of work, with adequate supervision and instruction.
(a) Safe transport to and from a place of work
An employer does not generally have a duty to provide safe transport to and from work (certainly in relation to travel to the usual place of work). An employer does have a duty to provide the other things listed.
This element was about…
(a)
…how the law of negligence applies to determine when an employer is responsible for the negligence of an employee.
(b)
…the duties which an employer owes to an employee.
(c)
…how the law of negligence applies to the relationship between employer and employee.
(d)
…the duties which employees owe to others.
(c) …how the law of negligence applies to the relationship between employer and employee.
This element was not about when an employer is responsible for the negligence of an employee – that is the topic of vicarious liability, which is something different. It would be too broad to say this element was about the duties which an employer owes to an employee – this element focused only on the law of negligence, not (for example) duties imposed by statute. This element was not concerned with duties which employees owe to others.
The duty imposed on employers is ‘non-delegable’, meaning…
(a)
The employer cannot delegate performance of the duty.
(b)
The employer cannot delegate liability for breach nor performance of the duty.
(c)
The employer cannot argue that an employee has consented to the risk of negligence.
(d)
The employer can delegate performance of the duty but will still be liable if it is breached.
(d) The employer can delegate performance of the duty but will still be liable if it is breached.
The defendant who is vicariously liable incurs what is called ‘strict liability’, meaning…
(a)
…they are liable even though they are not at fault.
(b)
…they are presumed liable unless they can show they have met the required standard.
(c)
…they have been held to (and fallen below) a higher than usual standard of care.
(d)
…they have fallen below the required standard but not caused any damage.
(a) …they are liable even though they are not at fault.
Vicarious liability has nothing to do with standard of care, presumptions in relation to liability nor whether any damage has been caused.
Which one of the following is not one of the three elements that must be shown to establish that Party B is vicariously liable for a tort committed by Party A?
(a)
Party A’s actions were authorised by Party B, or were an unauthorised way of doing something authorised by Party B.
(b)
Party A is an employee of Party B, or failing that, Party A is in a relationship akin to employment with Party B.
(c)
A tort has been committed by Party A.
(d)
The tort was committed in the course of Party A’s employment / quasi-employment.
(a) Party A’s actions were authorised by Party B, or were an unauthorised way of doing something authorised by Party B.
This IS NOT one of the three elements that must be shown to establish that Party B is vicariously liable for a tort committed by Party A. This idea used to be an important part of showing that a tort was committed in the course of Party A’s employment, but a different approach is now taken, following Lister v Hesley Hall.
Lister v Hesley Hall established that a tort will be ‘in the course of employment’…
(a)
…if the tort was an ‘accidental’ tort (such as negligence) rather than an ‘intentional’ tort (such as assault or battery).
(b)
…if there is a sufficiently close connection between the employee’s tort and the role he / she is employed to do.
(c)
…if the employee’s employment gave the employee the opportunity to commit the tort.
(d)
…if the tort was committed during the employee’s working hours and/or on the employer’s premises or other agreed workplace.
(b) …if there is a sufficiently close connection between the employee’s tort and the role he / she is employed to do.
This is the ratio of Lister v Hesley Hall. Whilst the tort taking place in working hours or on the employer’s premises is highly likely to be relevant in showing a close connection between tort and employment, neither is necessary. Similarly, the employee’s employment giving the opportunity to commit the tort might suggest the tort was committed in the course of employment, but it is neither conclusive, nor necessary.
Barclays Bank Plc v Various Claimants considered which type of relationships would or would not be ‘akin to employment’ in the context of vicarious liability. How did that case describe the type of party that would definitely not be in a relationship akin to employment?
(a)
Someone who is clearly carrying on their own independent business.
(b)
Someone who is paying their own taxes and National Insurance.
(c)
Someone who has some control over their own work independent of the alleged employer.
(a) Someone who is clearly carrying on their own independent business.
The general rule when one employer ‘lends’ an employee (X) to another employer is that…
(a)
…the first employer remains vicariously liable for any torts committed by X in the course of employment.
(b)
…the second employer is vicariously liable for any torts committed by X in the course of employment.
(c)
…both employers are jointly and severally liable for any torts committed by X in the course of employment.
(a) …the first employer remains vicariously liable for any torts committed by X in the course of employment.
Tom works as a gym instructor at a gym called ‘Fighting Fit’. His contract states that he is self-employed. He wears a Fighting Fit uniform and is paid a monthly salary for working set hours each week. If Tom is unable to work due to illness, he arranges a substitute gym instructor, selected from a bank of agency workers who are pre-approved by Fighting Fit. Which one of the following correctly describes whether Tom is an employee of Fighting Fit or not?
(a)
Tom is likely to be an employee because he is paid a monthly salary and pay is the most important indicative factor to determining employment status.
(b) Tom is likely to be an employee because the arrangement satisfies the Ready Mixed Concrete v Minister of Pensions test.
(c)
Tom will not be an employee of Fighting Fit because his contract clearly states that he is self-employed.
(d)
Tom is likely to be an employee of Fighting Fit because the label given to the working arrangement in the contract is irrelevant and would be ignored by a court.
(e)
Tom will not be an employee of Fighting Fit because he is able to arrange for a substitute to work in his place.
(b) Tom is likely to be an employee because the arrangement satisfies the Ready Mixed Concrete v Minister of Pensions test.
Tom is paid a salary and there is mutuality of obligations as he is required to work set hours. Fighting Fit have a significant degree of control over Tom and provide him with a uniform. The fact that the contract states he is self-employed (the ‘label’ given to the relationship) does not necessarily mean that he is, but it is a relevant consideration. Being able to send a substitute does suggest Tom is self-employed, but much less so where Tom can only select a substitute from a pre-approved bank of workers. Pay alone is relevant but not decisive.
What is an employer’s duty in primary liability?
- Duty of care imposed on employers is personal and non-delegable
- Regardless of who employer uses to carry out tasks, ultimate responsibility for safety of employee rests with employer - they can delegate performance of duty, but not liability for breach
- Employer’s DOC to employees is to take reasonable precautions to ensure employee’s safety
- Obligations within employer’s duty:
1. Safe/competent employees
2. Safe/proper plant and equipment
3. Safe place of work/premises, including safe access and way out
4. Safe systems of work, with adequate supervision and instruction - What is clear is that there is only one single duty ie to take reasonable precaution to ensure employee’s safety at work - above obligations are particular facets of duty
True or false: it is enough for employers to devise a safe system of work, there is no need to ensure its compliance.
False: Not enough to simply devise safe system - must take reasonable steps to ensure it is complied with
Whether instruction, persuasion or insistence should be used in relation to protective equipment depends on the facts of the case, in particular, the nature and degree of the risk of serious harm that could result if its not worn. Where employees object or refuse to use safety equipment, an employer may not be negligent for failing to enforce the use of that safety equipment
True or false: an employer’s duty in primary liability is absolute.
False - Duty on employer is to take reasonable care - not absolute duty
Only reasonable level of precaution need be taken ie objective test based on reasonable employer
Employer should take into account employee’s personal characteristics
Where can causation be relevant in provision of equipment in primary liability?
Common situation where factual causation relevant: provision of safety equipment - if employer fails to provide safety equipment, causation may not be satisfied if they can show that, even if it had been provided, employee would not have used it
But for test invoked
In some situations, mere provision of equipment may not be enough - in more dangerous working environments it may be necessary to give specific instruction about safety equipment or even to enforce use (arguments around novus actus harder to establish here)
Can mental harm be recoverable in primary liability?
Yes - Though most cases involve physical injury, courts have recognised mental harm as stress may be recoverable in some cases
What defences are available for primary liability?
- Consent: Judges sceptical of consent in employment context and it can only be successfully invoked in extreme circumstances where ‘there was risk of genuine full agreement, free from any kind of pressure, to assume risk of loss’
- Contributory negligence: Partial defence frequently succeeds in employment context where there is evidence that C employee has failed to take reasonable care of own safety and this failure contributes to loss suffered
