vicarious liability Flashcards
what are the two potential areas of liability in tort for an employer?
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
where are statutory health and safety regulations legislated?
Health and Safety at Work Act 1974
what is an employer’s common law duty?
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
what does a non delegable duty mean?
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
what is the duty of taking reasonable steps to have competent staff?
Waters v Commissioner- when an employer knows or ought to know about the risk a particular worker is posing to other fellow workers
what practical issues must be considered to fulfill duty of competent staff?
selection of staff, provision of training, provision of supervision, dismissal of employees who continue to pose a risk to fellow staff
what is the duty of providing adequate material? when is it relevant?
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
how is defective equipment legislated against?
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
to sue under defective equipment act, what must be established?
fault on the part of the third party (usually manufacturer of equipment but can also be a supplier), causation
which steps must be taken by the reasonable employer to ensure that a safe system is being implemented?
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
why is the duty of employers to employees more onerous than that in the occupiers liability Act?
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
how is stress at work relevant?
Walker v Northumberland County Council- CoA said safe system at work extends to an employee who has suffered stress as a result of work
what are the Hatton v Sutherland guidelines on stress at work?
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
when will an employer breach its duty?
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
how are a Cs special circumstances relevant to breach of duty?
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
what is the HSWA?
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
what will be considered when a court assesses breach of duty?
what risks ought the employer to have foreseen? what precautions ought the employer to have taken in response to those risks
what issues of causation must be considered?
causation, novus actus interveniens and remoteness applying usual tests
what are the defences?
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
what is vicarious liability?
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
how can employer and employee be jointly liable?
employer is liabel in addition to its employee, not instead of- a C can sue either or both
what is the right to indemnity?
Employer can claim compensatio back from employer
what are the moral justification for vicarious liability?
encourages accident prevention, since employer makes profits form employees activities it should also bear any losses when stem from those activities
what are the practical justifications for vicarious liability?
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
what are the 3 essential elements for vicarious liability to exist on the part of an employer?
worker must be an employee, employee must have committed a tort, employees tort must have been committed in the course of their employment
what is the distinction between an independent contractor and an employee?
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
what are the differences between contractor and employee?
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
what is the salmond definition of acts committed in the course of an employee’s employment?
wrongful acts which it has authorised, wrongful and unauthorised modes of carrying out an authorised act
what are acts expressly prohibited by the employer?
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
how are intentionally committed torts relevant?
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
what did Lister V Hesley Hall say about intentional torts?
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
what are frolic cases
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
does an employer have a right at common law to claim an indemnity from the employee who actually committed the tort?
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
