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Tort Law > Employers Primary Liability and vicarious liability > Flashcards

Employers Primary Liability and vicarious liability Flashcards

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1
Q

Employers primary liability

A

Law of negligence applied to the employer / employee relationship

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2
Q

Vicarious liability

A

Where one party is held liable for the torts of another
- usually employer / employees

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3
Q

Distinguish: Employers’ primary liability

A

An employee sues their employer for breaching their DoC to the employee.

Claimant is always an employee of defendant

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4
Q

Distinguish: Vicarious liability

A

Where claimant sues employer tort of their employees.

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5
Q

Primary liability of employers at common law

A

Where employer has breached their DoC to an employee.

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6
Q

Vicarious = secondary liability

A

Employer is not at fault, but is held responsible for faults of employees.

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7
Q

Independent contractor

A

Consider separate principles. Protection of employees is higher than for other workers.

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8
Q

Why give attention to Employers’ Primary Liability

A
  • Unique tortious principles
  • Important practice area.
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9
Q

Compulsory for Employers to have Unsrance

A

Employers’ Liability (Compulsory Insurance At 1969)

Employers’ Liability (Compulsory Insurance) Regulations 1998

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10
Q

Employers duty of care is …

A
  • Personal
  • Non-delegable
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11
Q

McDermid v Nash Dredging 1987

A

Employers’ duty of care is personal and non-delegable

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12
Q

Employer’s duty

A

A duty to take reasonable precaution to ensure an employee’s safety

See Wilsons’ Case for components

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13
Q

Wilsons and Clyde Coal Co Ltd v English 1938

A
  • Safe and competent employees
  • Safe and proper plant and equipment
  • Safe place of work/premises, including safe access and way out
  • Safe systems of work, adequate supervision and instructions
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14
Q

Safe and competent fellow employees

A

An employee has a duty to select and employ competent staff
Hudson v Ridge Manufacturing Company Ltd 1956

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15
Q

Hudson v Ridge Manufacturing Company Ltd 195

A
  • Employed a practical joker.
  • Told off repeatedly but not dismissed.
  • Employer must know or ought to know the worker is a risk
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16
Q

Black fife coal ltd 1912

A

If an incompetent person is employed to do a job they are not capable of doing, thn there will be a breach

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17
Q

When an employee hurts another employee

A

May be an:
* Action against the employee who caused harm
* Against the employer for vicarious liability

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18
Q

Safe/proper plant and equipment

A

Duty to provide and maintain safe machinery, plant and equipment (including any necessary safety features and protective clothing)

Qualcast v Haynes 1959
Yorkshire Traction Co Ltd v Walter Searby 2003

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19
Q

Qualcast v Haynes 1959

A

Discharged duty by providing protective boots.

May be decided differently today, statutory duty to require they wear the boots.

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20
Q

Yorkshire Traction Co Ltd v Walter Searby 2003

A

Bus driver stabbed.
Lack of protective screens.
Drivers had objected to them as reflected light and night.
Risk of assault low
Balancing factors = not negligent

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21
Q

Safe place of work

A

Employer has a duty to take reasonable care to ensure the premises are safe.
Extends to third party premises.
Wilson v Tyneside Cleaning Co 1958

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22
Q

Wilson v Tyneside Cleaning Co 1958

A

Window cleaning company, owed a duty to ensure that all were safe.
What is expected for third party premises is less than own premises.

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23
Q

Cook v Square 1992

A

Court considers what is reasonable.
ie place of work, nature of work, experience, degree of control exercised & knowledge over premises

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24
Q

Safe system of work cases

A
  • General Cleaning Contractors Ltd v Christmas, 1953
  • Bux v Slough Metals 1974
  • Clifford v Charles Challen & Son Ltd 1951
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25
Q

Safe system of work

A

Layout, warning, signage, training, supervision, instruction etc

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26
Q

General Cleaning Contractors Ltd v Christmas, 1953

A

Climbed on windows instead of ladders.
Trapped in sash windows.
No instruction, warning or training re: Sash windows.
= employer breach.
**Provision of training or wedges should have been employed.

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27
Q

Safe system of work - ensure

A

It is not enough to devise a safe system
must take reasonable steps to ensure it is complied with

eg Bux v Slough Metals 1974

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28
Q

Bux v Slough Metals 1974

A

Lost an eye; splashed with metal.
Had given safety goggles.
But was required to encourage or insist

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29
Q

Where employees object or refuse to use safety equipment

A

An employer may not be negligent for failing to enforce the use of the safety equioment

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30
Q

Barrier cream cases for dermatitis

A
  • Clifford v Charles Challen & Son Ltd 1951
  • Woods v Durable Suites Ltd 1953
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31
Q

Clifford v Charles Challen & Son Ltd 1951

A

Free in shop, but left to choice.
Foreman discouraged use.
= negligent for not having in workshop and encouraging use

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32
Q

Woods v Durable Suites Ltd 1953

A

Not available on premises.
Foreman provided encouragement and instruction
= not negligent

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33
Q

Employers liaibility and negligence

A

Usual rules of negligence apply.

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34
Q

Duty of employer

A

To take reasonable care
Latimer v AEC 1953

35
Q

Personal characteristics

A

Employer should take into account personal characteristics

Paris v Stepney Borough Council = one eye

36
Q

Breach - Employer

A
  • Usual structure
  • Reasonable care - objective test
  • Consider personal characteristics of employees
37
Q

Causation - PPE

A
  • Employer fails to provide PPE
  • But can show it wouldnt have been used if they had
  • Then “but for” test may not be satisfied.
    McWilliams v Sir William Arrol 1962
  • In more difficult scenarios may be hard to establish
38
Q

McWilliams v Sir William Arrol 1962

A

“But for” test invoked, if can show PPE would not be worn

39
Q

Employer -Remoteness

A
  • Phys Injury
  • Mental harm
  • Stress
40
Q

Employer - Defense

A
  • Consent
  • Contributory negligence
41
Q

Employer - Defense - Consent

A
  • Consent = defence
  • Judges sceptical in employment context Bowater v Rowley Regis Corp 1944
  • Only successful in extreme circumstances ** ICI Ltd v Shatwell 1965**
42
Q

Bowater v Rowley Regis Corp 1944

A

Judges sceptical of consent defence in employment context

43
Q

ICI Ltd v Shatwell 1965

A

Must have been “genuine full agreement, free from any kind of pressure, to assume the risk of the loss”

44
Q

Employer - Defense - CN

A
  • Partial defence
  • Employee failed to take reasonable care
    eg Bux - goggles - - 40%
    eg Clifford - cream - -50%
45
Q

Vicarious liability

A

One party is held liable for the torts of the other.
Due to specific relationship
= Secondary liability

46
Q

Vicarious liability = Strict liability

A

No need to prove fault.
Where one party is liable despite the absence of any fault

47
Q

Elements of vicarious liability

A
  • Tort has been committed by A
  • A is an employee , or relationship akin to employment
  • Tort committed in course of employment
48
Q

Elements of vicarious liability - Tort committed by Party A

A

eg negligence
But can be assault, battery, false imprisonment or defamation

49
Q

Elements of vicarious liability - Tort committed in course of employment

A
  • Since 2016 emphasis has been on close connection test
  • How close was wrongful act to their employment.
    Is there a close connection between tort and the role of employee
50
Q

Lister v Hesley Hall Ltd 2002

A

Defendant company running childrens home, VL for sexual abuse of a house warden.
* Close connection as because of employment was able to exploit children
* on Employer’s premises during working hours

51
Q

Two fold close connection test

A

Mohamud v WM Morrison Supermarkets PLc 2016

52
Q

Two fold close connection test - stages

A

1) Functions or fields entrusted - what is nature of their job
2) Sufficient connection between position and wrongful conduct to be fair and just

53
Q

Facts: Mohamud v WM Morrison Supermarkets PLc 2016

A

Liable for assualt and battery of employee on customer.
* Morrisons had entrusted employee to deal with members of the public - responsible for ause

54
Q

Fletcher v Chancery Lane Supplies 2016

A
  • Pedestrian not looking properly
  • 40 mins after shift
  • Still in uniform
  • no connection between work as unknown whether was crossing road for work reasons
55
Q

Pre 2002 - before Lister v Hesley Hall Ltd

A

Tort in the course of employment if wrongful act:
* Expressly or impliedly authorised by the employer
* Incidental to carrying out proper duties
* An unauthorised way of doing something authorised by the employer

56
Q

Century Insurance v Northern Ireland Road Transport 1942

A

Pre 2002
* Explosion, smoking at petrol station.
* Course as was doing something unauthorized when authorised
Would this still be the case in the close connection test?

57
Q

Harvey v RG O’Dell 1958

A

*Workman driving negligently
* Travelling to get work, during working hours
* Incidental to work, reasonably expected.
Would this still be the case in the close connection test?

58
Q

Rose v Plenty 1976

A
  • Boy was injured assisting a milkman.
  • Milkman was prohibited from enlisting help from employer
  • Liable as unauthorised mode for an authorised act
59
Q

Smith v Stages 1989

A
  • Two employees injured in a car crash
  • Had paid travel expenses - in work hours
  • Acting in course of employment.
  • Going about their business in employers time?
60
Q

Joel v Morrison 1834

A

Employee’s act was unauthorised / expressly prohibited = “frolic of their own”

61
Q

Beard v London General Omnibus Co 1900

A
  • Bus conductor ran over the claimant
  • Not part of his duties
62
Q

Storey v Ashton 1869

A
  • Delivering wine for work
  • Deviated from route
  • Not in course of employment
  • Depends on the extent of deviation - in this case to visit relatives, new route
63
Q

Twine v Bean’s Express Ltd 1946

A
  • Hitch hiker, despite prohibited
  • Trespasser
  • Distinguished from Twine as not doing employers’ business
64
Q

Employers indemnity

A

s1(1) Civil Liability (Contribution) Act 1978
* Indemnity from employee.
* Employer may claim back something from an employee
if just and equitable to do so
* Litigation against an employee usually by insurance company

65
Q

Insurance company litgation

A
  • Contribution rarely exercised by insurers
  • A “gentleman’s agreement” not to do so in the absence of willful and misconduct or collusion.
66
Q

Employee relationship

A

Contract of service

67
Q

Contract of service

A

A contract under which services are provided in an employer / employee relationships

68
Q

Contracts for services rendered

A

Services provided by an independent contractor, not in an employer / employee relationship

69
Q

Why does it matter if someone is an employee or not

A
  • Body of case law - protection for employees is higher than for workers.
  • To est VL need employer/employee relationship or akin
70
Q

How to identify an employment relationship

A
  • Multiple factors
  • Economic reality

Ready Mixed Concrete v Minister of Pensions

71
Q

Facts Ready Mixed Concrete v Minister of Pensions, 1968

A
  • X drove lorry with a concrete mixer
  • Defined as an independent contractor
  • Company exercised control over uniform and colours
72
Q

Held Ready Mixed Concrete v Minister of Pensions, 1968

A
  • X was an independent contractor
  • Driver owned the asset, bears risk.
  • Not a “servant” relationship
73
Q

Three part test to considering an employment relationship

A

Multiple factor test
* Renumeration
* Control
* All other contractual factors consistent with an employment relationship
Ready Mixed Concrete v Minister of Pensions

74
Q

Renumeration in exchange for personal service and mutuality of obligations

A
  • Employee paid to fulfill duties personally
  • If can send a subsitute = not employment.
  • Mutuality = required to provide work to the employee.
75
Q

Zero hours contract

A

Not mutuality of obligations = unlikely to be an employee

76
Q

Control

A
  • More control, more likely it is for the other party to be an employee
  • Consider who has control over tasks - how performed, when and where completed.
77
Q

All other factors consistent with employment relationship

A
  • Tools and equipment
  • Tax and PAYE
  • Integration into organization
  • Parties labelling
  • Benefits such as holiday pay and sick pay
78
Q

Relationship akin to employment

A

After 2012
* Only used in doubtful cases
* Not employee, also not own business.

79
Q

Barclays Bank Plc v Various Claimants 2020

A
  • Dr Bates assaulted women examined for barclays
  • “bank’s doctor”
  • Examinations as specified by barclays
  • Had own independent business also
    Barclays not vicariously liable
80
Q

Test for relationship akin to employment

A

When not carrying out own business and:
* Employer more likely to have means to compensate claimant.
* Activity is part of business activity of employer
* Employer created the risk of tort being committed.
* Under control of the employer

81
Q

Cox v MoJ 2016

A

Prison service Vl for torts of a prisoner working within catering section of a prison.
* No contract of employment
* Purpose of work was rehabilitation
* Integral to defendants business.
Fair, just and reasonable to hold MoJ liable

82
Q

General rule when lending employees

A
  • Original employer remains liable.
  • Much relies on level of contro
    Mersey Docks and Harbour Board v Coggins and Griffiths 1947
83
Q

Dual liabiility

A

Both X and Y are vicariously liable for.
* Rare
* Both employers are entitled and obliged to control employees actions.
* Prevent negligent act
* Have an equal measure of control
Viasystems Ltd v Thermal Transfer Ltd 2005

Tort Law (10 decks)

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