Employers' primary liability & vicarious liability

Question 1

What is the nature of the duty of care imposed on employers?

Answer 1

It is personal and non-delegable, meaning regardless of who the employer uses to carry out tasks, ultimate responsibility for safety of their employee rests with them.

They can delegate performance of the duty, but not liability.

Question 2

Outline the obligations an employer is under with reference to Wilsons and Clyde Coal Co Ltd v English (1938).

Answer 2

Held that the employer’s duty to take reasonable precaution to ensure an employee’s safety included obligations to provide:

-safe and competent employees
-safe and proper plant and equipment
-safe place of work/premises
-safe systems of work

Question 3

Providing safe and competent fellow employees: describe the outcomes of Hudson v Ridge Manufacturing Co (1957) & Black v Fife Coal Ltd (1912).

Answer 3

Hudson v Ridge Manufacturing Company (1957): D was found liable for employing someone known to be in the habit of playing practical jokes on fellow employees-he should have been dismissed/re-deployed.

Black v Fife Coal Ltd (1912): if an incompetent person is employed or required to do a job they are not capable of, there will be a breach of duty.

Question 4

Providing safe and proper plant and equipment: describe the outcomes of Qualcast v Haynes (1959) & Yorkshire Traction Co Ltd v Walter Searby (2003).

Answer 4

Qualcast v Haynes (1959): employer discharged its duty by providing protective boots against the danger of splashes of molten metal.

Yorkshire Traction Co Ltd v Walter Searby (2003): C bus driver was stabbed by a passenger and claimed that the D failed to use protective screens-D successfully argued they had introduced the screens but the risk of assault was low and drivers had objected to them.

Question 5

Providing safe place of work: describe the outcome of Wilson v Tyneside Cleaning Co (1958).

Answer 5

The D owed a duty to take reasonable steps to ensure that all locations the employees cleaned windows were safe, including third party premises, however the standard of care expected is less in relation to the employer’s own premises.

Question 6

What factors do the Court consider when assessing whether an employer provided a safe place of work for employees that work on third party premises?

Answer 6

The Court considers:

-what is reasonable in the circumstances
-place of work
-nature of building
-experience of employee
-nature of work
-degree of control by employer
-employer’s knowledge

Question 7

Providing safe system of work: describe the outcomes of General Cleaning Contractors Ltd v Christmas (1953) & Bux v Slough Metals (1974).

Answer 7

General Cleaning Contractors Ltd v Christmas (1953): employers are under a duty to go to the site of work, assess the risks, and plan and organise a safe system for doing the work so as to minimise the risk of injury.

Bux v Slough Metals (1974): it is not enough to simply devise a safe system-the employer must take reasonable steps to ensure compliance. The D provided safety goggles to the C but failed to encourage or insist on the wearing of goggles and was found liable.

Question 8

In relation to breach, what is the extent of the duty of care on employers and what must they take into account?

Answer 8

Duty on the employer is to take reasonable care: Latimer v AEC (1953).

An employer should also take into account an employee’s personal characteristics, for example in Paris v Stepney Borough Council (1951) the employer knew that the C had only one good eye and therefore should have taken extra precautions in relation to his safety.

Question 9

Can the ‘but for’ test be invoked in employers’ primary liability claims?

Answer 9

Yes-if an employer fails to provide safety equipment, causation may not be satisfied if they can show that, even if it had been provided, the employee would not have used it-McWilliams v Sir William Arrol (1962).

Question 10

Is the defence of consent available in employers’ primary liability claims?

Answer 10

Yes, but judges are sceptical of this defence in the employment context and it can only be successfully invoked in extreme circumstances where there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss: ICI v Shatwell (1965).

Question 11

Is the defence of contributory negligence available in employers’ primary liability claims?

Answer 11

Yes, and it frequently succeeds in an employment context.

Bux v Slough Metals (1974): the C was held 40% to blame for his injuries when he failed to wear safety goggles provided by his employer.

Question 12

What is vicarious liability?

Answer 12

This is when one party is held liable for the torts of another party-it is a form of secondary liability and it is also a strict liability. There is no need to prove fault on part of the Defendant.

Question 13

What are the three elements of vicarious liability?

Answer 13

-A tort has been committed by Party A

-Party A is an employee of Party B (or in a relationship akin to employment)

-The tort committed was in the course of Party A’s employment/quasi-employment

Question 14

What is the close connection test-refer to Lister v Hesley Hall Ltd (2002).

Answer 14

An employer will be held vicariously liable if there is a closeness of connection between the employee’s wrongful act and their employment.

Lister v Hesley Hall Ltd (2002): the D company was held vicariously liable for sexual abuse committed by one of its employees at a children’s home for boys. The tort was committed on the employer’s premises during working hours whilst he was performing work duties.

Question 15

Describe the outcome of Mohamud v WM Morrison Supermarkets plc (2016), in relation to the close connection test.

Answer 15

The D was vicariously liable for the assault and battery committed by one of its employees on the C on the forecourt of Morrisons petrol station. The subsequent abuse that ensued from C’s initial enquiry to the employee was held to be a ‘seamless episode’ that started with an act closely connected to his employment duties (responding to enquiries).

Close connection test deemed to be two-fold:

-What functions or field of activities have been entrusted by the employer to the employee (nature of their job)?

-Was there sufficient connection between the position in which they were employed and their wrongful conduct to make it fair and just for the employer to be held liable?

Question 16

What is the employer’s indemnity under s1(1) Civil Liability Contribution Act 1978?

Answer 16

Under s1(1) Civil Liability Contribution Act 1978, an employer may be entitled to seek an indemnity from their employee should they be forced to pay damages in respect of the employee’s tort.

The Court will allow a claim if it is ‘just and equitable’ to do so.

Question 17

What is the multiple factors/economic reality test as established in Ready Mixed Concrete v Minister of Pensions (1968)?

Answer 17

Court had to consider the status of X who drove a lorry carrying a concrete mixer. He was held to be an independent contractor as he was a driver in business on his own account. The Court indicated there is a three part approach to take when considering whether there is an employment relationship:

1. Remuneration
   There must be mutuality of obligations-personally paid and personally work. If a worker has an unfettered right to send a substitute their place, this will not be an employment relationship. A zero hours contract is unlikely to be deemed an employee
2. Control
   The Court will consider the amount of control that the employer exercises over the worker. The more control, the more likely it is they are an employee.
3. All other contractual factors consistent with an employment relationship such as:
   -tools and equipment provided by the employer
   -tax/PAYE treatment
   -integration
   -labelling of the relationship
   -receipt of benefits such as sick pay/holiday pay

Question 18

Describe the outcome of Barclays Bank Plc v Various Claimants (2020) with regards to an example of a relationship not akin to employment.

Answer 18

Barclays required prospective employees to undergo a medical examination at a time and place specified by Barclays, otherwise they would not be offered employment. It transpired that the doctor, Dr Bates, had assaulted a number of the young women he examined.

Despite elements of control, Dr Bates was carrying on his own independent business as a medical practitioner with a portfolio of patients and clients, of whom only one was Barclays. His relationship with Barclays was not akin to employment and Barclays were not vicariously liable. It was held that a relationship is more likely to be akin to employment if:

-The employer is more likely to have the means to compensate the C than the tortfeasor

-The tort has been committed as a result of an activity being undertaken by the tortfeasor on the employer’s behalf

-The tortfeasor’s activity is part of the business activity of the employer

-By allowing the tortfeasor to carry on the activity, the employer created the risk of the tort being committed

-The tortfeasor is, to a greater or lesser degree, under the control of the employer

Question 19

Describe the outcome of Cox v Ministry of Justice (2016) with regards to an example of a relationship akin to employment.

Answer 19

The C was injured when a prisoner negligently dropped a sack of rice onto her back. Supreme Court found the prison service vicariously liable for the torts of a prisoner working within the catering section of a prison on the grounds that it was fair, just and reasonable.

Question 20

With regards to lending employees, what is the general rule on who will be vicariously liable?

Answer 20

The general rule is that the employer will remain vicariously liable, and it will be difficult for them to rebut this presumption (Mersey Docks and Harbour Board v Coggins and Griffiths (1947).

Much emphasis is placed on the level of control the hirer has over the work and the provision of equipment.

Question 21

Is it possible for both the employer and hirer to be held vicariously liable when lending employees-refer to Viasystems Ltd v Thermal Transfer Ltd & Others (2005)?

Answer 21

Yes, dual liability might occur where an employee is lent to work for another employer and both employers have an equal measure of control over the tortfeasor as seen in Viasystems Ltd v Thermal Transfer Ltd & Others (2005).