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Torts > Vl, employers and product liability > Flashcards

Vl, employers and product liability Flashcards

1
Q

Should an employer take precautions against employee stress

A

unless evidence otherwise, entitled to assume employee can cope with normal stress of job
precautions required depend on nature of job

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2
Q

Employer’s responsibilities under Health and Safety at Work etc Act

A

employers must ensure as far as reasonably practical the health, safety and welfare at work of all employees

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3
Q

employer’s liability for defective equipment

A

liable for personal injury of employee in course of employment caused by defective equipment provided by employer for business purposes

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4
Q

what if employee personal injury due to defective equipment is the fault of a third party e.g someone who fixed or installed it

A

employer is still liable

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5
Q

What steps must an employer take to avoid liability for defective equipment

A

steps of an ordinary prudent employer

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6
Q

What are the employer’s non-delegable duties in Wilson and Clyde Coal

A

competent workforce
adequate plant and equipment
effective system of work

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7
Q

What does it mean if a duty is non-delegable

A

employer is always liable and cannot delegate them to another manager or employee.

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8
Q

Requirements for vicarious liability

A

tort, by employee, in course of employment.

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9
Q

what is an employee for vicarious liability

A

control, wages, step time and place, uniform, instructions, hire and fire, integrated into business, tax and benefits, tools
Reality of relationship, not belief of parties or contracts

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10
Q

Does vicarious liability apply to independent contractors

A

No

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11
Q

Can two employer’s be jointly VL through a finding of dual employment

A

Rare

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12
Q

Who is the employer when an employee is on loan to another employer

A

Likely to be the original employer. Rare to find dual liabililty. Look at all the circumstances.

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13
Q

When is a relationship akin to employment

A

providing accommodation and food, pocket money, no contract but bound by vows.

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14
Q

When is a tort in the course of employment

A

Close connection test or salmond test

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15
Q

Salmond test

A

unauthorized mode of carrying out authorized activities.

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16
Q

close connection test

A

Cox:
tort was the result of an activity by tortfeasor on behalf of D
the activity was part of the business activities of D
employment created the risk of the tort

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17
Q

If tortfeasor is committing an illegal act or disobeying the instructions of the employer can VL still apply

A

Yes

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18
Q

Can a detour prevent VL

A

Matter of degree - was it a new independent journey. Travelling to and from work is normally outside the course of employment

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19
Q

If the tort is personal or an act of vengeance is in within the course of employment

A

No

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20
Q

Which statute protects against defective products

A

Consumer protection act 1987

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21
Q

How is liability under consumer protection act established

A

defective product, damage and causal link.

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22
Q

When can’t a claim regarding defective goods be brought using the consumer protection act

A

pure economic loss
loss or damage to product less than £275
loss or damage to property not intended for private use but intended by C for that purpose

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23
Q

Defenses under consumer protection act

A

defective due to compliance with EU obligations
D didn’t supply product to C
supply was not in the course of business and for profit
was not defective at time of supply
defect is due to subsequent inclusion in another product
scientific info is not such that D could have discovered the defect

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24
Q

Can a claim be brought under the consumer protection act for quality or value of goods

A

No only safety. If claim relates to quality or value it must be brought under contract law

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25
Q

what products are included and excluded from the consumer protection act

A

goods and component parts but NOT buildings

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26
Q

Hierarchy of Ds under consumer protection act

A

Producer / manufacturer
importer of products into EU
own brander
supplier / retailer

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27
Q

What must be shown for a successful claim under consumer protection act

A

show there is a defect in the product so that the safety is not as personal generally entitled to expect - objective consumer expectation test

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28
Q

what is the consumer expectation test

A

objective

not what consumers expect but what they are legitimately entitled to expect regarding safety of product

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29
Q

common law product liability

A

based on negligence
common law duty of care owed by manufacturers
Safety of product only. Quality and value must be contract claims

30
Q

who can owe a common law duty of care regarding product liability

A

manufacturers, repairers, fitters, makers of component parts, those selling products after inspections and repairs.

31
Q

What main duty of care does an employer have towards an employee

A

To take reasonable care for employees safety while at work

32
Q

What are the non delegable duties of an employer to an employee

A

Competent staff
Adaquate material
Proper system of work and supervision
Safe place of work

33
Q

What is the difference between an employers common law duty of care to an employee and their duty under OLA 1957

A

OLA can be delegated and applies only to premises where employer is occupier

Common law duty cannot be delegated and applies anywhere employee works

34
Q

How can the employer meet their non delegable duty

A

Take reasonable steps

Meet the standard of care expects of a reasonable employer in their position

35
Q

How is the breach of duty of an employer assessed

A

The same as other negligence

Eg foreseeability of risk, cost and practicality of precautions etc

36
Q

Is an employer liable for stress of employee

A

Was it reasonably foreseeable

Nature, extent of work, signs from employee

37
Q

Does a breach of the health and safety at work etc act 1974 attract criminal or civil liability

A

Criminal liability not civil. But it can act as a guide for precautions employer is expected to take when assessing breach of common law duty

38
Q

3 requirements for VL

A

Tort
Employee
Course of employment

39
Q

Is VL a tort

A

No it is a principle which makes someone liable for the torts of another

40
Q

Does VL remove liability from the employee

A

No they are both jointly liable

41
Q

5 criteria in VL to determine if the relationship is of employment or akin to it

A

Some degree of control
Tort committed as a result of activity taken by employee on behalf of employer
Employees activity is part of business activity of employer
Employer created risk of tort by employing employee to carry out the activity
Employer more likely to have means to compensate

42
Q

Can an employer be liable in VL even if they expressly prohibited the act

A

Yes

43
Q

How can you tell if an act is committed outside the course of employment

A

It is a question of degree

44
Q

Can an employer who is VL claim an indemnity from the employee

A

Yes for full loss

45
Q

What is the lister principle

A

Employer can be liable for an intentionally wrongful act committed purely for an employees benefit where there is a sufficiently close connection between work he was employed to do and the act in question

46
Q

What guidance did mohamud give on the lister principle

A

First ask what function or field of activities has been entrusted by employer to employee (ie nature of their job)
Second is there a sufficient connection between position in which they were employed and their wrongful conduct to make it fair and just to hold employer liable

47
Q

What is the wide rule- negligence product liability

A

Neighbourhood principle

48
Q

What is the narrow rule - negligence product liability

A

What a manufacturer owes a duty to a consumer

49
Q

What must you establish to show a duty of care under the narrow rule - negligence

A 
D is a manufacturer 
Item causing damage is a product 
C is a consumer 
And 
Product reached consumer in form it left manufacturer with no reasonable possibility of immediate examination
50
Q

Who is a manufacturer - narrow rule

A

anyone who works on a product before it reaches the consumer incl supplier and retailer

51
Q

Is a supplier included in the definition of a manufacturer - narrow rule

A

Only if they ought to reasonably test / inspect product or if they know of danger

52
Q

Who is a consumer - narrow rule

A

Ultimate user and anyone likely to be injured by Ds negligence

53
Q

What is it not possible to claim under the narrow rule

A

If there is a reasonable possibility of intermediate examination
ClAim against intermediate examiner instead

54
Q

What kind of loss can be recovered under the narrow rule

A

Personal injury

Damage to property

55
Q

What loss cannot be recovered under the narrow rule

A

If only loss is defect in product then loss of value of product / repair / or replacement of products is not recoverable as that would be pure economic loss

56
Q

What is the manufacturers standard of care in a product liability claim

A

Reasonable manufacturer

57
Q

Does warning the consumer of risks meet the standard expected of a manufacturer

A

Yes

58
Q

Does res ipsa loquitur apply to produce liability cases

A

No

59
Q

Does contributory negligence apply to product liability cases

A

Yes

60
Q

Does the defence of consent apply to product liability cases

A

Yes
If consumer was aware of defect in product and decided to continue using it
Knowledge of defect isn’t enough, conduct must show willingness to accept it

61
Q

What kind of loss can be recovered under Consumer Protection Act 1987

A

Death or personal injury of any amount

Damage to private property exceeding £275

62
Q

Is damage to business property recoverable under consumer protection act 1987

A

No

63
Q

Is cost of repair or replacement of defective product recoverable under consumer protection act 1987

A

No - pure economic loss

64
Q

Defences under consumer protection act 1987

A

Defect due to compliance with legal requirements
D didn’t supply product (stolen goods)
D supplied it outside course of business (friend to friend)
Defect didn’t exist when supplied / subsequent use caused defect
Developmental risk/ state of knowledge at time couldn’t identify defect (no knowledge in any of the world)

65
Q

Can you claim under the consumer protection act and in negligence

A

You can select between them but cannot recover the same loss twice

66
Q

What is a defect

A

Unsafe

Safety of product is not as persons generally entitled to expect

67
Q

Does D need to be at fault to be liable under consumer protection act

A

No it is strict liability

68
Q

What is a product according to consumer protection act

A

Any goods or electricity including component parts and blood

69
Q

Who can be a D in a claim under consumer protection act

A

Manufacturer
Own brander
Importer. ( into EU only)
Supplier ( only if others cannot be identified)

70
Q

Does contributory negligence apply to a claim under consumer protect act

A

Yes

71
Q

Can D exclude, limit or restrict their liability in any way under consumer protection act

A

No

Torts (8 decks)

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