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Tort Law > Employers Primary Liability and vicarious liability > Flashcards

Employers Primary Liability and vicarious liability Flashcards

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
Safe system of work
Layout, warning, signage, training, supervision, instruction etc
26
General Cleaning Contractors Ltd v Christmas, 1953
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.
27
Safe system of work - ensure
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
28
Bux v Slough Metals 1974
Lost an eye; splashed with metal. Had given safety goggles. But was required to **encourage or insist**
29
Where employees object or refuse to use safety equipment
An employer may not be negligent for failing to enforce the use of the safety equioment
30
Barrier cream cases for dermatitis
* Clifford v Charles Challen & Son Ltd 1951 * Woods v Durable Suites Ltd 1953
31
Clifford v Charles Challen & Son Ltd 1951
Free in shop, but left to choice. Foreman discouraged use. = negligent for not having in workshop and encouraging use
32
Woods v Durable Suites Ltd 1953
Not available on premises. Foreman provided encouragement and instruction = **not negligent**
33
Employers liaibility and negligence
Usual rules of negligence apply.
34
Duty of employer
To take reasonable care **Latimer v AEC 1953**
35
Personal characteristics
Employer should take into account personal characteristics **Paris v Stepney Borough Council** = one eye
36
Breach - Employer
* Usual structure * Reasonable care - objective test * Consider personal characteristics of employees
37
Causation - PPE
* 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
McWilliams v Sir William Arrol 1962
"But for" test invoked, if can show PPE would not be worn
39
Employer -Remoteness
* Phys Injury * Mental harm * Stress
40
Employer - Defense
* Consent * Contributory negligence
41
Employer - Defense - Consent
* Consent = defence * Judges sceptical in employment context **Bowater v Rowley Regis Corp 1944** * Only successful in extreme circumstances ** ICI Ltd v Shatwell 1965**
42
**Bowater v Rowley Regis Corp 1944**
Judges sceptical of consent defence in employment context
43
ICI Ltd v Shatwell 1965
Must have been "genuine full agreement, free from any kind of pressure, to assume the risk of the loss"
44
Employer - Defense - CN
* Partial defence * Employee failed to take reasonable care eg Bux - goggles - - 40% eg Clifford - cream - -50%
45
Vicarious liability
One party is held liable for the torts of the other. Due to **specific relationship** = **Secondary liability**
46
Vicarious liability = **Strict liability**
No need to prove fault. Where one party is liable despite the absence of any fault
47
Elements of vicarious liability
* Tort has been committed by A * A is an employee , or relationship akin to employment * Tort committed in course of employment
48
Elements of vicarious liability - Tort committed by Party A
eg negligence But can be assault, battery, false imprisonment or defamation
49
Elements of vicarious liability - Tort committed in course of employment
* 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
Lister v Hesley Hall Ltd 2002
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
Two fold close connection test
Mohamud v WM Morrison Supermarkets PLc 2016
52
Two fold close connection test - stages
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
Facts: Mohamud v WM Morrison Supermarkets PLc 2016
Liable for assualt and battery of employee on customer. * Morrisons had entrusted employee to deal with members of the public - responsible for ause
54
Fletcher v Chancery Lane Supplies 2016
* 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
Pre 2002 - before Lister v Hesley Hall Ltd
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
Century Insurance v Northern Ireland Road Transport 1942
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
Harvey v RG O'Dell 1958
*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
Rose v Plenty 1976
* Boy was injured assisting a milkman. * Milkman was prohibited from enlisting help from employer * Liable as unauthorised mode for an authorised act
59
Smith v Stages 1989
* 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
Joel v Morrison 1834
Employee's act was unauthorised / expressly prohibited = "frolic of their own"
61
Beard v London General Omnibus Co 1900
* Bus conductor ran over the claimant * Not part of his duties
62
Storey v Ashton 1869
* 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
Twine v Bean's Express Ltd 1946
* Hitch hiker, despite prohibited * Trespasser * Distinguished from **Twine** as not doing employers' business
64
Employers indemnity
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
Insurance company litgation
* Contribution rarely exercised by insurers * A "gentleman's agreement" not to do so in the absence of willful and misconduct or collusion.
66
Employee relationship
Contract of service
67
Contract of service
A contract under which services are provided in an employer / employee relationships
68
Contracts for services rendered
Services provided by an independent contractor, not in an employer / employee relationship
69
Why does it matter if someone is an employee or not
* Body of case law - protection for employees is higher than for workers. * To est VL need employer/employee relationship or akin
70
How to identify an employment relationship
* Multiple factors * Economic reality **Ready Mixed Concrete v Minister of Pensions**
71
**Facts** Ready Mixed Concrete v Minister of Pensions, 1968
* X drove lorry with a concrete mixer * Defined as an independent contractor * Company exercised control over uniform and colours
72
**Held** Ready Mixed Concrete v Minister of Pensions, 1968
* X was an independent contractor * Driver owned the asset, bears risk. * Not a "servant" relationship
73
Three part test to considering an employment relationship
Multiple factor test * Renumeration * Control * All other contractual factors consistent with an employment relationship **Ready Mixed Concrete v Minister of Pensions**
74
Renumeration in exchange for personal service and mutuality of obligations
* Employee paid to fulfill duties personally * If can send a subsitute = not employment. * Mutuality = required to provide work to the employee.
75
Zero hours contract
Not mutuality of obligations = unlikely to be an employee
76
Control
* 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
All other factors consistent with employment relationship
* Tools and equipment * Tax and PAYE * Integration into organization * Parties labelling * Benefits such as holiday pay and sick pay
78
Relationship akin to employment
After 2012 * Only used in doubtful cases * Not employee, also not own business.
79
Barclays Bank Plc v Various Claimants 2020
* 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
Test for relationship akin to employment
**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
Cox v MoJ 2016
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
General rule when lending employees
* Original employer remains liable. * Much relies on level of contro **Mersey Docks and Harbour Board v Coggins and Griffiths 1947**
83
Dual liabiility
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 (11 decks)

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