Tort 2.3- EL/VL

Question 1

What are the main components of an employer’s liability for an employee?

Answer 1

1. Negligence for breach of personal duty (personal and non- delegable)
2. Vicarious liability for torts committed by employees in the course of their employment.
3. Contractual liability.

Question 2

What is the employer’s common law duty of care?

Answer 2

An employer has a duty to take reasonable care for the safety of employees while at work, including:

1. Providing competent staff.
2. Ensuring adequate material and equipment.
3. Implementing a reasonably safe system of work.
4. Maintaining a safe workplace.

Question 3

What is the standard of care for EL?

Answer 3

To take reasonable care, taking into account an employee’s
personal characteristics

Question 4

What defences apply for EL?

Answer 4

Normal ones (although consent is rare) - contributory negligence most common

Question 5

What must be proven regarding breach of duty in an employer’s liability claim?

Answer 5

Standard of Care: The standard expected is that of a reasonable employer, considering all circumstances.

Causation: The claimant must establish a direct link between the employer’s breach and the injury sustained (stress at work needs med evidence)

Question 6

What is vicarious liability?

Answer 6

An employer can be held vicariously liable if:

1. The worker is an employee (not an independent contractor).
2. The employee committed a tort (e.g., negligence).
3. The tort was committed in the course of employment and fair, just and reasonable
   - Employer VL for wrongful acts authorised + wrongful & unauthorised modes of carrying out authorised act (connected to employment)
   - Beyond usual rule: Employer VL for prohibited acts of employee if done for employer’s purpose + In deciding whether employee departure from authorised route put them in ‘frolic of own’, consider geographical divergence + departure from task set

Question 7

Under what circumstances can an employer be liable for prohibited acts of an employee?

Answer 7

An employer can be liable for an employee’s prohibited acts if:
- The act is done for the employer’s purpose.
- The deviation from authorised conduct is not considered a “frolic of their own.”

Question 8

What limitations exist regarding breach of statutory duty claims against employers?

Answer 8

Breach of statutory duty cannot be directly claimed against employers but can serve as evidence in a negligence claim (s.47 Health and Safety at Work Act 1974)

Breaches of health and safety regulations cannot serve as a basis for breach of statutory duty claims (s.69 of ERRA 2013)

Question 9

What does the Employers’ Liability (Defective Equipment) Act 1969 state?

Answer 9

If an employee is injured due to defective equipment provided by the employer, the employer is liable, even if the defect lies with a third party (like a manufacturer). The claimant must show fault by the third party to establish causation

Question 10

What are the employer’s duties regarding competent staff?

Answer 10

Employers must:

A. Ensure competent fellow staff.

B. Take steps to prevent injuries from bullying or inadequate performance.

C. Implement:
- Good selection of staff.
- Adequate training.
- Adequate supervision.
- Dismiss at-risk employees.

Question 11

What are the employer’s obligations regarding adequate materials?

Answer 11

Employers must:

A. Provide adequate plant and equipment.

B. Ensure all equipment is in safe condition and accompanied by proper instructions.

Question 12

What constitutes a safe system of work?

Answer 12

A safe system of work includes:

A. Reasonable steps to ensure a safe work environment.

B. Proper training for staff on safety measures.

C. Adequate monitoring and discipline for adherence to safety protocols.

Question 13

What constitutes a safe workplace?

Answer 13

Employers must ensure:

A. The premises are safe and do not cause foreseeable stress or harm to employees.

B. Considerations include the nature and extent of work and signs of stress from employees.

Question 14

What is the nature of an employers duty to their employees?

Answer 14

Non delegable

BUT duty to only take reasonable care and reasonable steps

Question 15

Under what circumstances can an employer be held vicariously liable for an intentional tort committed by an employee, particularly in cases where the act occurs outside normal working hours and not on the employer’s premises?

Answer 15

An employer can be held vicariously liable for an intentional tort committed by an employee if there is a sufficiently close connection between tortious act and employee’s employment (Lister v Hesley: court found that an employer could be liable for wrongful acts that were closely related to the employee’s duties)

Key factors to consider include:
1. Nature of Employment: The tortious act must arise from activities conducted on behalf of the employer.

2. Connection to Duties: The employee’s actions should be connected to their job responsibilities, even if the act itself is intentional or unauthorised.
3. Foreseeability: The employer should have been able to foresee the risk of such actions arising from the employment relationship.

4.When the act takes place outside of normal working hours or the usual workplace, liability may still exist if the act is done in furtherance of the employer’s interests.

Question 16

Criteria for Determining Employment Relationship

Answer 16

1. Compensation Capability: The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insurance for that liability.
2. Tort Resulting from Employer’s Activity: The tort must have been committed as a result of an activity undertaken by the employee on behalf of the employer.
3. Business Activity: The employee’s activity is likely to be part of the employer’s business operations.
4. Risk Creation by Employer: The employer, by employing the individual, creates the risk of the tort being committed by the employee.
5. Control by Employer: The employee is, to a greater or lesser degree, under the control of the employer.

Question 17

In the context of vicarious liability, how does an employer become liable for an employee’s intentional torts, particularly in scenarios where the tort occurs during or as a result of the employee’s work duties?

Answer 17

An employer can be vicariously liable for an employee’s intentional torts if the tortious act occurs during the course of employment and there is a sufficiently close connection between the employee’s duties and the act.

1. Doorman Assault: A doorman at a bar, after an altercation with a patron, follows the patron outside and physically assaults them. Here, the employer may be liable because the doorman’s actions, although intentional, stemmed from an incident related to his employment duties, creating a connection between the employment and the tort (as seen in Lister v Hesley Hall Ltd).
2. Supermarket Employee Attack: An employee at a supermarket, after causing an accident in the car park, assaults a customer who reported the incident. The employer may be held vicariously liable as the employee’s anger and subsequent attack can be seen as a reaction to events that occurred within the scope of their job, thus establishing a connection that may justify imposing liability (referencing similar principles as in Mattis v Pollock)

Question 18

What is the difference between the employee’s actions in Warren v Henleys Ltd and the doorman scenario regarding vicarious liability?

Answer 18

Context of the Incident:
1. Warren: An employee punched a customer after being insulted. This action was seen as a personal response to an insult, meaning it wasn’t connected to his work duties.
2. Doorman: A doorman punched a customer after a dispute inside the bar. His action was linked to his role of managing the bar environment and dealing with patrons.

Connection to Employment:
1. Warren: The act of retaliation was considered a personal grievance, not related to the employee’s job, which meant the employer could not be held liable.
2. Doorman: The aggressive behavior was considered part of his employment responsibilities, suggesting that the employer might be held liable for the doorman’s actions.

Nature of the Act:
1. Warren: The punch was an unauthorized personal act, not serving any work-related purpose.
2. Doorman: Although the punch was also intentional, it occurred in a work-related context, raising questions about whether it was appropriate for the employer to be liable.

VL can depend significantly on the connection between an employee’s actions and their employment. If the action is deemed personal and unrelated to work the employer is usually not liable. However, if the action occurs in a work context, the employer may face liability.