vicarious liability

Question 1

what are the two potential areas of liability in tort for an employer?

Answer 1

negligence for breach of personal duty an employer owes to every employee, vicarious liability for the tort of an employee committed in the course of their employment

Question 2

where are statutory health and safety regulations legislated?

Answer 2

Health and Safety at Work Act 1974

Question 3

what is an employer’s common law duty?

Answer 3

Wilsons v Clyde Coal v English gave 3 separate duties- must tale reasonable steps to provide competent staff, adequate material, a proper system of work and supervision, Latimer v AEC added a safe place to work

Question 4

what does a non delegable duty mean?

Answer 4

employers cannot escape liability by delegating a duty to someone else e.g. external contractor who negligently services equipment- this is because employer/employee is a close relationship based on mutual tryst and confidence

Question 5

what is the duty of taking reasonable steps to have competent staff?

Answer 5

Waters v Commissioner- when an employer knows or ought to know about the risk a particular worker is posing to other fellow workers

Question 6

what practical issues must be considered to fulfill duty of competent staff?

Answer 6

selection of staff, provision of training, provision of supervision, dismissal of employees who continue to pose a risk to fellow staff

Question 7

what is the duty of providing adequate material? when is it relevant?

Answer 7

where an employer does provide equipment to employees but it is still inadequate in some way, when an employer doe snot in fcat supply all the plant and equipment needed for the job

Question 8

how is defective equipment legislated against?

Answer 8

Employers liability (Defective Equipment) Act 1969- an employee can sue if s1(1) the injury shall be deemed to be also attributable to negligence on the part of the employer

Question 9

to sue under defective equipment act, what must be established?

Answer 9

fault on the part of the third party (usually manufacturer of equipment but can also be a supplier), causation

Question 10

which steps must be taken by the reasonable employer to ensure that a safe system is being implemented?

Answer 10

adequate training for employees, ensuring supervision, monitoring operation of the system to ensure it is being complied with, taking disciplinary action against any employee who fails to comply with the system

Question 11

why is the duty of employers to employees more onerous than that in the occupiers liability Act?

Answer 11

OL- employer can comply with its duty by delegating work to an independent contractor- common law duty says it is non delegable

OL- only applies to premises of which the employer is ‘occupier’ _ general Cleaning contractors v Christmas HoL confirmed that common law duty applies regardless of where the employees are at work

Question 12

how is stress at work relevant?

Answer 12

Walker v Northumberland County Council- CoA said safe system at work extends to an employee who has suffered stress as a result of work

Question 13

what are the Hatton v Sutherland guidelines on stress at work?

Answer 13

a duty will arise if injury to health through stress at work was reasonably foreseeable, and the court should consider the nature and extent of the work done by the employee and signs form the employee themselves

Question 14

when will an employer breach its duty?

Answer 14

if it fails to meet the standard of care to be expected of a reasonable employer in its position, and teh risk must be known to teh D

Question 15

how are a Cs special circumstances relevant to breach of duty?

Answer 15

if D has been reasonably ignorant of the Cs special circumstances it would not have been liable, unless the risk was so great that extra precautions should have been taken

Question 16

what is the HSWA?

Answer 16

legislation containing regulations covering a vast range of issues arising in the workplace- breach is a criminal offence but not actionable in a civil claim so employees cannot bring a claim for breach of statutory duty based on them

Question 17

what will be considered when a court assesses breach of duty?

Answer 17

what risks ought the employer to have foreseen? what precautions ought the employer to have taken in response to those risks

Question 18

what issues of causation must be considered?

Answer 18

causation, novus actus interveniens and remoteness applying usual tests

Question 19

what are the defences?

Answer 19

voluntary assumption of risk and contributory negligence- but it is rare for an employer to successfully raise the defence of volenti because difficult to show that employee freely consent to run risk of injury

Question 20

what is vicarious liability?

Answer 20

a principle under which a person is liable for torts committed by another- not a requirement that employer has committed a tort itself, it is a form of secondary liability which derives from a tort committed by an employee

Question 21

how can employer and employee be jointly liable?

Answer 21

employer is liabel in addition to its employee, not instead of- a C can sue either or both

Question 22

what is the right to indemnity?

Answer 22

Employer can claim compensatio back from employer

Question 23

what are the moral justification for vicarious liability?

Answer 23

encourages accident prevention, since employer makes profits form employees activities it should also bear any losses when stem from those activities

Question 24

what are the practical justifications for vicarious liability?

Answer 24

employees may not be worth sueing- employers more likely to be able to stand the loss, employers in better position to insure against liability, employers can pass the cost of insuring against liability onto customers via higher prices for goods

Question 25

what are the 3 essential elements for vicarious liability to exist on the part of an employer?

Answer 25

worker must be an employee, employee must have committed a tort, employees tort must have been committed in the course of their employment

Question 26

what is the distinction between an independent contractor and an employee?

Answer 26

employee is employed under a contract of service, IC is employed under a contract for services- employers cannot be held to be vicariously liable for the acts of independent contractors- Barclays v Various Claimants

Question 27

what are the differences between contractor and employee?

Answer 27

E performs a service for just one person and receives a wage , IC provides services to several people and is self employed and is a business on their own account

Question 28

what is the salmond definition of acts committed in the course of an employee’s employment?

Answer 28

wrongful acts which it has authorised, wrongful and unauthorised modes of carrying out an authorised act

Question 29

what are acts expressly prohibited by the employer?

Answer 29

acts done in express contravention to a prohibition from an employer would fall outside the employee’s course of employment BUT this is not always true

Question 30

how are intentionally committed torts relevant?

Answer 30

usually often also criminal acts so unliekly to vicarious liaibility as they wouldnt be authroised acts or unauthorised ways of oding authorised acts BUT lloyd v Grace found it can be

Question 31

what did Lister V Hesley Hall say about intentional torts?

Answer 31

employer can be vicariously liable for an intentional wrongful act committed purely for employee’s own purposes without any benefit to the employer where there is a sufficient close connection between work he had been employed to do and the actions in question

Question 32

what are frolic cases

Answer 32

of an employee is acting outside their course of employment when they commit a tort, it is a question of degree in each case whether what they did is outside the course of their employment by considering geographical divergence and departure from task set

Question 34

does an employer have a right at common law to claim an indemnity from the employee who actually committed the tort?

Answer 34

yes- Lister v Romford Ice and Cold Storage although employer’s liability insurers have entered into an informal agreement not to pursue such claims for an indemnity unless there is evidence of collusion of wilful misconduct on the part of an employee