Unit 5 Flashcards
What do employers face liability through?
Direct negligence: breach of their personal duty of care
Vicarious liability: responsibility for their employees tortious acts.
What is an employers general duty of care?
Employers owe a duty to take reasonable care for their employees safety. This duty is personal and non-delegable. Employers cannot absolve themselves of responsibility by outsourcing safety. They remain liable for negligence of contractors of fellow employees.
Wilson & Clyde coal co ltd: have a duty to provide competent staff, adequate materials and a proper system of work/ supervision.
Also via Latimer: a duty to take reasonable steps to provide a safe place of work.
What does a duty of care to provide competent staff mean?
Hudson v Rodge Manufacturing: employers duty to address known risks posed by employees including knowledge of a workers dangerous tendencies.
ONLY ARISES WHEN THEY KNOW OR OUGHT TO KNOW.
Waters v Commissioner: bullying and harassment fall within this duty. Employers must take steps to prevent workplace harassment.
REQUIRES CAREFUL RECRUITMENT TRAINING AND SUPERVISION
A duty to provide adequate plant and equipment:
All tools, machinery and protective gear.
Employers liability (defective equipment) act1969: simplifies claims by holding employers liable for defective equipment. Shifts the burden of proving fault to employer.
Must show that they have taken reasonable steps to ensure it has been implemented: like ensuring supervision, monitoring and discipline.
Safe system of work:
Broadest and most litigated duty. Includes: workplace layout, training, supervision, stress management. Requires constant risk assessment and adaption.
Safe place of work:
There is an overlap with the statutory duty under the occupiers liability act 1957. The occupiers are duty to visitors which could include employees to take reasonable care for their safety regarding dangers due to the state of the premises.
The common law duty is more honour and is nondelegable. Also it applies regardless of where the employees are working.
Stress at work
The duty to provide a safe system of work extends to psychological well-being.
Walker: recognised stress induced psychiatric harm as a valid claim. Employers have a duty to prevent foreseeable stress
Guidelines for assessing stress claims
Hatton v Sutherland: whether injury to health through stress at work was reasonably foreseeable.
In deciding the threshold question the court should consider the the nature and extent of the work done by the employee and signs from the employee themselves.
Breach of duty
Breach occurs when they failed to meet the standard of care expected of a reasonable employer. It is consistent with general negligence.
An employers duty as a personal one arriving from the close relationship of mutual trust
Paris v Stepney: employers must take extra precautions for employees with known vulnerabilities. Knowledge of the risk is crucial for liability.
Causation?
The usual causation tests apply
What defences can be used by the employer?
Voluntary assumption of risk: rarely successful for employers as it is difficult to prove an employee freely consented to the risk.
Contributory negligence : damages may be reduced if the employee contributed to their injuries. Courts are more lenient towards employees in noisy conditions and repetitive work.
When assessing breach of duty, what act will be taken into account??
The health and safety at work act 1974. The court assessing breach of duty and negligence will ask two basic questions.
- What risks ought the employer to have four seen?
- What precautions ought the employer to have taken in response to those risks?
Precautions in the health and safety regulations are likely to be regarded as a guide to the standard which a reasonable employer ought to meet
What is vicarious liability?
It is secondary liability and holds an employer liable for the Tor commit committed by their employees. The employer and employee are jointly liable. The injured party can sue either or both.
This is beneficial because employers are better able to pay and ensure against losses
What are the essential elements of vicarious liability?
An employer employee relationship
That the employee commit committed a tort.
The tort was committed in the course of employment
Who is an employee?
Employers are vicariously liable for employees but generally not for independent contractors. This is because contractors provide services to multiple clients and are self-employed.
There must be a relationship again to employment. Five criteria are employers means to compensate., accident committed as a result of activity on behalf of the employer, employees activity being part of the business activity, employer creating the risk by employing them, employers degree of control over them.
Course of employment?
These include wrongful act authorised by the employer and wrongful and unauthorised modes of carrying out an authorised act.
How have the courts expanded the concept of course of employment in relation to prohibited act?
Rose v Plenty: milk man prohibited from using child helpers did so and the child was injured. The employers were held vicariously liable because the prohibited act furthered the employer’s business.
LISTER PRINCIPLE?
They are unlikely to be authorised or unauthorised modes of authorised acts. For example in the list of case the House of Lords established that liability can exist for intentional wrongful act done purely for the employees own purposes if there is a sufficiently close connection between the work the employee was employed to do and the tortious act. THIS IS THE LISTER PRINCIPLE
Guidance on the lister principle
Mohamoud case:
What functional field of activities was trusted to the employee?
Was there a sufficient connection between the employees position and their wrongful conduct to make it fair and adjustable to hold the employer accountable?
The employees motives are also an important factor
What are frolic cases?
An employee act outside the scope of their employment for purely personal reasons. This is most commonly in driving cases. The extent of the deviation and the purpose of it will be considered.
What is employers indemnity?
Lister v Romford ice and cold storage co:
The common law right for an employer who is vicariously liable for an employees tour and has paid out has the right to claim an indemnity from the employee who actually committed it
They could also seek joint liability
However, employers liability insurers have generally entered into an informal agreement not to pursue claims for indemnity against employees
