Employers & Vicarious Liability Flashcards
For direct claims always conclude a tort has occured; what are the 7 stages?
DUTY (CAPARO) STANDARD BREACH FACTUAL CAUSATION: CORK v KIRBY. LEGAL CAUSATION: NO NAI. REMOTENESS. DEFENCES.
Write an introduction for an employers liability question.
An employer owes a duty of care in common law negligence to their employees. Such a duty is said to be a corollary of the contractual relationship between the parties and is both non-delegable and personal (McDERMID v NASH); it obliged an employer to take reasonable precautions to ensure the safety of their employees (WINTER v CARDIFF). An action for employers liability is commonly commenced alongside one for vicarious liability. In the given scenario there are several such primary and vicarious claims as well as direct claims against individuals. The direct claims will be dealt with first.
Secondly, employers PRIMARY liability claims should be assessed. Write a short introductory paragraph to this part of the question.
As above, employers must ensure the safety of their employees (WINTER). It must first be determined if X is an employee capable of bringing a claim against Y.
The test for employee status comes from READY MIXED CONCRETE v MOP and is known more colloquially as the ‘economic reality test’. It was held by Mackenna J in this case that the courts should look at three factors when assessing is someone is an employee; remuneration, the level of control and any other contractual factors. These ‘other’ factors were later expanded upon by McNeil J in WARNER HOLIDAYS v SOS HOME AFFAIRS. He held that it encompassed issues such as tax, holiday/sick pay, work obligations, exclusivity rights, equipment provision and residual control. There have since been a number of rulings specific to each of these factors that will be applied to X’s circumstances in turn.
What case is the economic reality test from?
Mackenna J in READY MIXED CONCRETE v MOP.
What three things does the economic reality test say to look at?
Remuneration.
Level of control.
Other contractual factors (SEE WARNER HOLIDAYS v SOS HOME AFFAIRS).
What does McNeil J say are the ‘other contractual factors’ to look at in WARNER HOLIDAYS v SOS HOME AFFAIRS?
TAX HOLIDAY/SICK PAY WORK OBLIGATIONS EXCLUSIVITY RIGHTS EQUIPMENT PROVISION RESIDUAL CONTROL
REMUNERATION impacts employee status in what way?
HALL v LORIMER: look at the extent to which the individual is dependent or independent of a particular paymaster for the financial exploitation of his talents.
CONTROL impacts employee status in what way?
CASSIDY v MOH: control is not always the distinguishing factor, but the more control the more likely an employee: YEWENS v NOAKE.
TAX impacts employee status in what way?
AIRFIX v COPE: even though not paying tax was deemed an employee.
EQUIPMENT impacts employee status in what way?
READY MIX.
EXCLUSIVITY impacts employee status in what way?
ARGENT v MSS: could work wherever they wanted; not tied to one employer.
Although, concerned teacher with no syllabus?
LABELLING impacts employee status in what way?
MASSEY v CROWN: labels are not conclusive but persuasive.
MUTUALITY OF OBLIGATIONS impacts employee status in what way?
Both parties are expected to do their bit: O’KELLY v TRUSTHOUSE: less degree of obligation to turn up and employer not obliged to find them work.
To whom are agency workers said to be employed by?
General rule is that the original employer is still liable. MERSEY DOCKS v COGGINS & GRIFFITHS: the ultimate control is the power to dismiss. In mersey docks they trained the workers, their whole operation was based around lending employees and they had the ultimate power to tell them what to do.
BUT: this presumption can be rebutted: HAWLEY v LUMINAR, if control can be said to have changed hands. But this is difficult; can be distinguished; policy/serious injury.
NOTE: VIASYSTEMS v THERMAL XFERS: both found liable.
Which case holds that the ultimate control lies with he who has the power to dismiss?
MERSEY DOCKS v COGGINS & GRIFFITHS.
