Employers Primary Liability and vicarious liability Flashcards
Employers primary liability
Law of negligence applied to the employer / employee relationship
Vicarious liability
Where one party is held liable for the torts of another
- usually employer / employees
Distinguish: Employers’ primary liability
An employee sues their employer for breaching their DoC to the employee.
Claimant is always an employee of defendant
Distinguish: Vicarious liability
Where claimant sues employer tort of their employees.
Primary liability of employers at common law
Where employer has breached their DoC to an employee.
Vicarious = secondary liability
Employer is not at fault, but is held responsible for faults of employees.
Independent contractor
Consider separate principles. Protection of employees is higher than for other workers.
Why give attention to Employers’ Primary Liability
- Unique tortious principles
- Important practice area.
Compulsory for Employers to have Unsrance
Employers’ Liability (Compulsory Insurance At 1969)
Employers’ Liability (Compulsory Insurance) Regulations 1998
Employers duty of care is …
- Personal
- Non-delegable
McDermid v Nash Dredging 1987
Employers’ duty of care is personal and non-delegable
Employer’s duty
A duty to take reasonable precaution to ensure an employee’s safety
See Wilsons’ Case for components
Wilsons and Clyde Coal Co Ltd v English 1938
- 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
Safe and competent fellow employees
An employee has a duty to select and employ competent staff
Hudson v Ridge Manufacturing Company Ltd 1956
Hudson v Ridge Manufacturing Company Ltd 195
- Employed a practical joker.
- Told off repeatedly but not dismissed.
- Employer must know or ought to know the worker is a risk
Black fife coal ltd 1912
If an incompetent person is employed to do a job they are not capable of doing, thn there will be a breach
When an employee hurts another employee
May be an:
* Action against the employee who caused harm
* Against the employer for vicarious liability
Safe/proper plant and equipment
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
Qualcast v Haynes 1959
Discharged duty by providing protective boots.
May be decided differently today, statutory duty to require they wear the boots.
Yorkshire Traction Co Ltd v Walter Searby 2003
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
Safe place of work
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
Wilson v Tyneside Cleaning Co 1958
Window cleaning company, owed a duty to ensure that all were safe.
What is expected for third party premises is less than own premises.
Cook v Square 1992
Court considers what is reasonable.
ie place of work, nature of work, experience, degree of control exercised & knowledge over premises
Safe system of work cases
- General Cleaning Contractors Ltd v Christmas, 1953
- Bux v Slough Metals 1974
- Clifford v Charles Challen & Son Ltd 1951
Safe system of work
Layout, warning, signage, training, supervision, instruction etc
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.
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
Bux v Slough Metals 1974
Lost an eye; splashed with metal.
Had given safety goggles.
But was required to encourage or insist
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
Barrier cream cases for dermatitis
- Clifford v Charles Challen & Son Ltd 1951
- Woods v Durable Suites Ltd 1953
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
Woods v Durable Suites Ltd 1953
Not available on premises.
Foreman provided encouragement and instruction
= not negligent
Employers liaibility and negligence
Usual rules of negligence apply.
Duty of employer
To take reasonable care
Latimer v AEC 1953
Personal characteristics
Employer should take into account personal characteristics
Paris v Stepney Borough Council = one eye
Breach - Employer
- Usual structure
- Reasonable care - objective test
- Consider personal characteristics of employees
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
McWilliams v Sir William Arrol 1962
“But for” test invoked, if can show PPE would not be worn
Employer -Remoteness
- Phys Injury
- Mental harm
- Stress
Employer - Defense
- Consent
- Contributory negligence
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**
Bowater v Rowley Regis Corp 1944
Judges sceptical of consent defence in employment context
ICI Ltd v Shatwell 1965
Must have been “genuine full agreement, free from any kind of pressure, to assume the risk of the loss”
Employer - Defense - CN
- Partial defence
- Employee failed to take reasonable care
eg Bux - goggles - - 40%
eg Clifford - cream - -50%
Vicarious liability
One party is held liable for the torts of the other.
Due to specific relationship
= Secondary liability
Vicarious liability = Strict liability
No need to prove fault.
Where one party is liable despite the absence of any fault
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
Elements of vicarious liability - Tort committed by Party A
eg negligence
But can be assault, battery, false imprisonment or defamation
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
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
Two fold close connection test
Mohamud v WM Morrison Supermarkets PLc 2016
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
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
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
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
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?
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?
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
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?
Joel v Morrison 1834
Employee’s act was unauthorised / expressly prohibited = “frolic of their own”
Beard v London General Omnibus Co 1900
- Bus conductor ran over the claimant
- Not part of his duties
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
Twine v Bean’s Express Ltd 1946
- Hitch hiker, despite prohibited
- Trespasser
- Distinguished from Twine as not doing employers’ business
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
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.
Employee relationship
Contract of service
Contract of service
A contract under which services are provided in an employer / employee relationships
Contracts for services rendered
Services provided by an independent contractor, not in an employer / employee relationship
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
How to identify an employment relationship
- Multiple factors
- Economic reality
Ready Mixed Concrete v Minister of Pensions
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
Held Ready Mixed Concrete v Minister of Pensions, 1968
- X was an independent contractor
- Driver owned the asset, bears risk.
- Not a “servant” relationship
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
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.
Zero hours contract
Not mutuality of obligations = unlikely to be an employee
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.
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
Relationship akin to employment
After 2012
* Only used in doubtful cases
* Not employee, also not own business.
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
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
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
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
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
