Tort - Employers' and Vicarious Liability (5) Flashcards
What is employers’ and vicarious liability?
Employers’ and Vicarious Liability: Employers may be directly liable to employees for harms suffered at work. They may also be vicariously liable for torts committed by their employees at work.
What are the elements for employers’ liabilty?
Employers Liability: Employers owe a duty of care to their employees in four ways. This is non-delegable.
(1) Competent Staff: Employers must provide competent staff (Wilsons v English).
Incompetence: Incompetent staff (including supervisors) pose a physical or psychological risk to other employees through their actions or omissions (Waters v Commissioner).
Breach: Employers are in breach for retaining employees known to be incompetent (Hudson v Ridge).
Knowledge: Employer must be aware or ought to know of the incompetence to mitigate against it.
(2) Adequate Materials: Employers must provide and maintain adequate materials necessary for the job, such as machinery, uniform, and equipment. This can be breached in two ways.
Lack: Employer did not provide adequate materials.
Defective: Employer did provide materials, but they were defective. This includes defects caused by manufacturers or installers, provided the employee can evidence this (s1 ELDEA 1969).
(3) Safe System: Employers must provide a safe system of work and appropriate supervision, including training, warning signs, adequate guidance, supervisors, and compliance with regulations.
Stress: Includes duty not to cause unreasonable stress to employees, provided the stress is reasonably foreseeable (Hatton v Sutherland). Rules of PPH do not apply to such claims.
Inherent Stress: Inherent stress is still breach, such as PTSD in morgue (Melville v HO).
Foresight: Risk must be tangible, such as following absenteeism or being informed of stress. If the employee says they are not stressed, the employer can take this at face value.
(4) Safe Premises: Employers must provide physically safe workplaces.
Occupiers: This includes (and builds on) occupiers liability to visitors.
Common Law: Employers must ensure employees are reasonably safe in all areas they are expected to work, not merely the occupied premises (General Cleaning Contractors v Christmas).
>I.e. A business that supplies cleaners to other businesses should ensure the cleaner will be reasonably safe wherever they go.
Breach
Breach: Employers are in breach for failing to meet the standard of the reasonable employer, in the context of their actual knowledge and industry.
(1) Subjective Element: Where an employer is aware of a specific risk, such as a blind employee, they must take this into account (Paris v Stepney).
(2) Reasonableness: Consider magnitude of risk, foreseeability of risk, cost of precautions.
(3) Non-Delegable: This is non-delegable, meaning breach by other employees will incur breach of employer.
Causation
Causation: The breach must cause recoverable harm to the employee.
Defences
Defences: There are limited defences.
(1) Consent: Consent is practically never granted, as employment is not deemed ‘freely’ consented to, it is an economic obligation (Smith v Baker).
(2) Contributory Negligence: Contributory negligence is possible, but courts are typically sympathetic to employees in noisy, repetitive or stressful work environments (Caswell v Powell).
Health and Safety at Work
Health and Safety at Work: Claimants may use breach of health and safety statutes to support evidence of breach, but not as a specific cause of action, as it may impose higher burdens than tort (Enterprise and Regulatory Reform Act 2013).
What is vicarious liabilty?
Vicarious Liability: Employers are vicariously liable for torts committed by their employees in the course of employment. They are ‘jointly and severally’ liable with the employee, but are often the preferred defendant.
Employee Tort
Employee: The tortfeasor must be an employee, or in a relationship ‘akin to employment’, under the employer.
(1) Employee: An individual employed under a contract for service (Barclays v Various).
Contractors: Contractors providing a service to the employer is not an employee, though if they are locum contractors, they may be in an ‘akin’ relationship.
(2) Akin to Employment: An individual is predominantly ‘akin’ to employment if they are ‘under control’ of the employer for the purposes of carrying out the employer’s business (Various v Catholic Child Welfare).
(3) Tort: The employee must have committed a tort. Duty, breach, causation and loss are required.
Course of Employment
Course of Employment: The tort must have occurred during the course of employment, meaning it was an instruction of the employer, or an unauthorised means of carrying out the employer’s business (Lister v Lesley Hall).
(1) Close Connection: Torts committed in ‘close connection’ to the course of employment are sufficient, such as an accountant committing accounting fraud at work (Lloyd v Grace).
Example: Bouncer attacked customer after his shift had ended; this was closely connected, so bar was liable (Mattis v Pollock).
(2) Intentional Torts: Employers may be vicariously liable for intentional torts committed by an employee if ‘fair and just’.
Example: Shop attendant punched a customer over a payment dispute - employer was held vicariously liable (Mohamud v Morrison).
(3) Frolic Cases: Employers are generally not liable for employees acting beyond the course of employment.
Frolic: The tortfeasor is not in the course of business, such as travelling to work (Joel v Morison).
Lunch: Stopping for lunch is not a frolic, it is connected to work (Harvey v RG O’Dell).
Effect
Effect: It is often preferable to establish vicarious liability.
(1) Insurance: Employers are generally required to take out insurance, so are more likely to be able to satisfy the claim.
(2) Indemnity: Employers or their insurers have a common law right to pursue their loss from the tortfeasor (Lister v Romford Ice), as well as under the Civil Liability (Contribution) Act 1978.
In Practice: They will usually not do so unless there is evidence of intent or collusion.
