Tort Law - Vicarious liability & EPL in negligence

Question 1

What is vicarious liability? (2)

Answer 1

Where one party is held liable for torts of another and is most commonly exercised in employer / employee relationships. There are three parties involved - the victim who suffered harm, the employee that cause harm by committing a tort and the employer who might be vicariously liable for the harm caused by its employees.

Question 2

What is EPL? (1)

Answer 2

Law of negligence applied to the employer / employee relationship.

Question 3

What duty does an employer owe and the key case? (3)

Answer 3

A personal and non-delegable duty to take reasonable precaution to ensure an employee’s safety and the employer will need to provide safe / competent employees, safe / proper plant and equipment, safe premises and safe system of work - Wilsons V Clyde and Coal Co Ltd V English

Question 4

What defence is hard for an employer to establish as a defence and the key case? (2)

Answer 4

Consent - Bowater V Rowley Regis Corporation.

Question 5

What does personal and non-delegable duty mean and the key case? (2)

Answer 5

No matter who the employer uses to carry out tasks, the ultimate responsibility for the safety of the employee rests with the employer - Mcdermid V Nash Dredgings.

Question 6

What do we mean by safe / competent employees and the key case? (2)

Answer 6

An employer has a duty of care to select and employ competent staff - Hudson V Ridge Manufacturing Company Ltd

Question 7

What doe we mean by safe / proper plant and equipment and the key case? (2)

Answer 7

An employer owes an employee a duty to provide and maintain safe machinery, plant and equipment - Qualcast V Haynes.

Question 8

What do we mean by safe place of work and the key case? (2)

Answer 8

The employer has a duty to take reasonable care to ensure that the premises the employee works in are safe - Wilson V Tyneside Cleaning Co.

Question 9

What do we mean by safe systems of work and the key case? (4)

Answer 9

It includes the physical layout of the job, the setting of the stage, the sequence in which the work is to be carried out, the provision of warnings, notices, training, supervision and the issues of special instruction - General Cleaning Contractors Ltd V Christmas.

Question 10

Key case that proves if a employer fails to provide safety equipment causation may not be provided if they can prove even if it had been provided the employee would not have used it? (1)

Answer 10

Mcwilliams V Sir Williams Arrol.

Question 11

How does contributory negligence fit in to the employment context? (1)

Answer 11

Often succeeds where there is evidence the claimant employee had failed to take reasonable care of their own safety.

Question 12

When is party B vicariously liable for a tort committed by party A? (3)

Answer 12

1. A tort has been committed by party A.
2. Party A is an employee of party B or in a relationship akin to employment.
3. The tort was committed in the course of that employment / quasi employment.

Question 13

When will a tort be committed in the course of employment? (1)

Answer 13

If there is a sufficiently close connection between the wrongful act and the employment.

Question 14

Explain the close connection test and key case? (4)

Answer 14

It is a two fold test
(a) what functions has the employer entrusted to the employee?
(b) is there a sufficient connection between the position in which the employee was employed and the wrongful conduct to make it just for the employer to be held liable.
Mohamud V WM Morrison Supermarkets PLC

Question 15

What is the key case for the current approach to the close connection test? (1)

Answer 15

Lister V Hesley Hall.

Question 16

What does S1(1) Civil Liability (Contribution) Act 1978 state? (1)

Answer 16

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.

Question 17

What should we do to decide whether there is an employer / employee relationship? (1)

Answer 17

Apply the multiple factors test.

Question 18

In terms of vicarious liability, when is a party not in a relationship akin to employment? (1)

Answer 18

If the party is carrying on their own independent business.

Question 19

When is there a rebuttable presumption that X will be vicariously liable for any torts committed by A? (1)

Answer 19

Where X (employer) lends an employee (A) to another employer / hirer Y.

Question 20

What is the key case for identifying an employment relationship? (1)

Answer 20

Mixed Concrete V Minister of Pensions.

Question 21

What is the three part approach to take when considering if there is an employment relationship? (3)

Answer 21

(a) remuneration in exchange for personal service and mutuality of obligations.
(b) control
(c) all other contractual factors consistent with an employment relationship.

Question 22

What is the key case for relationship akin to employment? (1)

Answer 22

Barclays Bank PLC V Various Claimants.

Question 23

What did the Supreme court hold that is a relationship is more likely to be akin to an employment relationship (4)

Answer 23

1. Employer is more likely to have the means to compensate the claimant than the tortfeasor.
2. The tort has been committed as a result of an activity being undertaken by the tortfeasor on the employer’s behalf.
3. The tortfeasor’s activity is part of the business activity of the employer.
4. By allowing the tortfeasor to carry on the activity, the employer created the risk of the tort being committed and the tortfeasor is to a greater or lesser degree under the control of the employer.