Session 2 - vicarious and primary employers liability + special types of loss in negligence

Question 1

What is employers primary liability

Answer 1

• where employee (claimant) claims against their employer (tortfeasor)
• employee is suing employer for breach of duty of care

Question 2

What are the obligations within employers’ duties?

Answer 2

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

Question 3

A cleaner contracted dermatitis (a skin irritation) on their hands and arms after working with various cleaning products provided by their employer. The employer had provided the cleaner with rubber gloves, but did not instruct the cleaner to wear them or warn the cleaner about the risk of dermatitis. The cleaner did not wear the rubber gloves as they found them uncomfortable.
Which of the following statements best explains whether the employer is in breach of their duty to the cleaner and why?

a) The employer is in breach of duty for failing to provide proper safety equipment.

b) The employer is not in breach of duty as the cleaner chose not to wear the rubber gloves which the employer had provided.

c) The employer is in breach of duty for failing to warn the cleaner about the risk of dermatitis if the rubber gloves were not worn.

d) The employer is not in breach of duty as the cleaner did not have a supervisor who could monitor whether they wore the rubber gloves.

e) The employer is in breach of duty for failing to take reasonable steps to ensure that the safety equipment (the rubber gloves) was properly used and understood by the cleaner.

Answer 3

E

Question 4

Meaning of vicarious liability

Answer 4

mechanism used by Claimant to sue an employer for a tort that has been committed by their employee

Question 5

What does the claimant need to show to prove vicarious liability?

Answer 5

• a tort has been committed by Party A
• Party A is an employee of Party B/ party A is in a relationship akin to employment with B
• the tort was committed in the course if Party A’s employment

Question 6

A singer is employed to perform at a restaurant every Monday and Tuesday night from 8pm to 10pm. One Monday night, as the singer is setting up for their regular set at the restaurant, a waiter (who is also employed by the restaurant) storms out of the kitchen in a rush and trips over some wires that the singer has negligently failed to tape down. The waiter breaks their ankle and wrist.
Which of the following best describes the claim/s the waiter can bring in the law of tort?

a) The waiter can sue the restaurant in employers’ primary liability.

b) The waiter can sue the singer in general negligence; and the restaurant vicariously and in employers’ primary liability.

c) The waiter can sue the singer in general negligence and can sue the restaurant vicariously.

d) The waiter can sue the singer in general negligence only.

e) The waiter can sue the singer vicariously and in general negligence.

Answer 6

B
Employee is the employers primary liability

Question 7

Definition of psychiatric harm in negligence

Answer 7

claimant has suffered a medically recognised form of psychiatric illness or a shock-induced physical condition

• liability will NOT arise for fear, distress or mental grief caused by negligence
• C must have suffered clinical depression, PTSD, or heart attack

Question 8

3 types of victim

Answer 8

1. primary
2. secondary
3. actual

Question 9

What is an actual victim, and test for duty of care?

Answer 9

a person who has suffered harm and possibly psychiatric harm

TEST: apple the normal principles - search for precedent and if none, apply Caparo (foreseeability, proximity and fair just and reasonable)

Question 10

What is a primary victim, and test for duty of care?

Answer 10

someone who does not suffer physical harm, but suffers psychiatric harm as a result of reasonable fear for their own safety

TEST: establish whether that physical harm was reasonably foreseeable

Question 11

What is a secondary victim, and what is the test for duty of care?

Answer 11

someone who does not suffer physical harm, but who suffers psychiatric harm due to fear for someone else’s safety they are not in the area of danger

TEST: Alcock criteria -
1. was psychiatric harm reasonably foreseeable?
2. is there proximity between C and ‘victim’?
3. is there proximity in time and space?
4. was the psychiatric harm shock induced?

Question 12

A band is playing at a gig when some lighting negligently installed by the venue falls from the ceiling on to the stage, causing a huge explosion and fire. The guitar player of the band suffers serious burns and is rushed to hospital. The guitar player’s sister was listening to the gig live on the radio. She hears the explosion and arrives at the hospital two hours after the incident. She sees her brother (the guitar player) covered in blood and grime, and screaming in pain. She develops agoraphobia (a fear of leaving a well known environment).
Which of the following statements best describes the type of victim the sister is and whether she is owed a duty of care by the venue?

a. The sister is a secondary victim and it is unlikely she will be owed a duty due to lack of proximity to the traumatic event.

b. The sister is a secondary victim and it is likely she will be owed a duty as she witnessed the immediate aftermath.

c. The sister is a primary victim and it is likely she will be owed a duty as psychiatric harm was reasonably foreseeable.

d. The sister is a secondary victim and it is unlikely she will be owed a duty due to lack of proximity of relationship between herself and her brother.

e. The sister is a primary victim and it is unlikely she will be owed a duty as she has not suffered recognisable psychiatric harm.

Answer 12

D

Question 12

Meaning of ‘assumption of responsibility’

Answer 12

D will owe C duty of care not to cause psychiatric harm where D has ‘assumed responsibility’ to ensure that the claimant avoids reasrnablyforseeable psychiatric harm.

Question 12

A social services manager had a heavy and emotionally demanding caseload. They suffered a nervous breakdown due to stress at work and were promised additional support by their employer, which was never delivered. They went on to suffer a second breakdown and could not return to work.
Which one of the following statements best describes whether the social services manager (the ‘manager’) was owed a duty of care by their employer for the second nervous breakdown?

a. A duty will be owed as the employer assumed responsibility to ensure that the manger avoided reasonably foreseeable psychiatric harm

b. A duty will be owed as the employer owed the manager a duty to ensure they did not suffer any psychiatric harm.

c. A duty will not be owed as the manager is a secondary victim and does not satisfy the Alcock criteria.

d. A duty will not be owed as the manager is a primary victim and physical injury was not foreseeable.

e. A duty will be owed as the employer failed to provide additional support after the first nervous breakdown
BPP

Answer 12

A

Question 12

Meaning of economic loss

Answer 12

loss which is NOT caused by damage to the claimant’s person or property

Question 13

Factors of pure economic loss

Answer 13

1. economic loss not flowing from damage to person or property
   - advice to make a bad investment
2. loss arising from damage to property of another
3. defective items
   - Loss you suffer when you get a defective product is not that your property has been damaged, but the property is not worth what you thought it was (cost of repairing defective item = pure economic loss)

Question 13

General rule of pure economic loss

Answer 13

• No duty of care is owed in respect of pure economic loss
• there are exceptions that are in relation to negligent statements, not negligent acts

Question 14

Exceptions to the general rule of our economic loss

Answer 14

1. Wills (solicitors owe a duty of care to beneficiaries)
2. References (the person writing the reference owed the subject of the reference a duty of care to provide an accurate reference)
3. pure economic loss caused by negligent misstatements

Question 15

Test for economic loss and which key case

Answer 15

Hedley Byrne - Reasonable reliance test:

1. C relied on D’s advice
2. reasonable for C to rely on D’s advice (eg bec of skill)
3. D knew/ought to know C was relying on the advice

Question 16

What are the 4 exceptions to the general rule that you cannot claim for a pure economic loss?

Answer 16

1. Neligent misstatements (Hedley Byrne)
2. Negligent References
3. Breach of statutory duty
4. Breach of fiduciary duty

Question 17

A Council negligently instructs its workmen to dig a hole in a public road without first checking the position of underground electricity cables. The workmen sever a cable providing electricity to a chicken farm. The heating fails at the farm. As a result many of the chickens die and the egg yield of the others is reduced for several days until the heating returns. The farmer wishes to sue the Council for (i) the value of the dead chickens (ii) the lost profit from the eggs of the dead chickens and (ili) the lost profits which would have resulted from the sale of eggs produced by the living chickens.
Which one of the following statements offers the best legal advice to the farmer in a claim for negligence against the Council?

a. Loss (i) is recoverable only.

b. Losses (i) (ii) and (ili) are recoverable.

c. Losses (i) and ii) are recoverable but loss (li) is not.

d. Loss (ii) is recoverable only.

e. Loss (iii) is recoverable only.

Answer 17

C

Question 18

For a C to establish a special relationship between themselves and the D, when claiming for pure economic loss on the grounds of negligent misstatement, what must C show? (3 things)

Answer 18

1. D communicated the statement to C
2. made the statement in relation to a particular transaction
3. knew the C was going to rely on it

Question 19

Special relationships for negligent misstatements in pure economic losses are generally in the context of businesses.
True or false

Answer 19

True

Question 20

The general rule on consequential economic loss is that it’s recoverable.
True or False

Answer 20

True - consequential economic loss = financial losses suffered as a result of physical damage

Question 21

The general rule on pure economic loss is that they are recovarable. True or false

Answer 21

False - general rule is that they are NOT recoverable
(due to policy reasons - to avoid C’s being able to claim for an indeterminate amount of money)