Vl, employers and product liability Flashcards
Should an employer take precautions against employee stress
unless evidence otherwise, entitled to assume employee can cope with normal stress of job
precautions required depend on nature of job
Employer’s responsibilities under Health and Safety at Work etc Act
employers must ensure as far as reasonably practical the health, safety and welfare at work of all employees
employer’s liability for defective equipment
liable for personal injury of employee in course of employment caused by defective equipment provided by employer for business purposes
what if employee personal injury due to defective equipment is the fault of a third party e.g someone who fixed or installed it
employer is still liable
What steps must an employer take to avoid liability for defective equipment
steps of an ordinary prudent employer
What are the employer’s non-delegable duties in Wilson and Clyde Coal
competent workforce
adequate plant and equipment
effective system of work
What does it mean if a duty is non-delegable
employer is always liable and cannot delegate them to another manager or employee.
Requirements for vicarious liability
tort, by employee, in course of employment.
what is an employee for vicarious liability
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
Does vicarious liability apply to independent contractors
No
Can two employer’s be jointly VL through a finding of dual employment
Rare
Who is the employer when an employee is on loan to another employer
Likely to be the original employer. Rare to find dual liabililty. Look at all the circumstances.
When is a relationship akin to employment
providing accommodation and food, pocket money, no contract but bound by vows.
When is a tort in the course of employment
Close connection test or salmond test
Salmond test
unauthorized mode of carrying out authorized activities.
close connection test
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
If tortfeasor is committing an illegal act or disobeying the instructions of the employer can VL still apply
Yes
Can a detour prevent VL
Matter of degree - was it a new independent journey. Travelling to and from work is normally outside the course of employment
If the tort is personal or an act of vengeance is in within the course of employment
No
Which statute protects against defective products
Consumer protection act 1987
How is liability under consumer protection act established
defective product, damage and causal link.
When can’t a claim regarding defective goods be brought using the consumer protection act
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
Defenses under consumer protection act
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
Can a claim be brought under the consumer protection act for quality or value of goods
No only safety. If claim relates to quality or value it must be brought under contract law
what products are included and excluded from the consumer protection act
goods and component parts but NOT buildings
Hierarchy of Ds under consumer protection act
Producer / manufacturer
importer of products into EU
own brander
supplier / retailer
What must be shown for a successful claim under consumer protection act
show there is a defect in the product so that the safety is not as personal generally entitled to expect - objective consumer expectation test
what is the consumer expectation test
objective
not what consumers expect but what they are legitimately entitled to expect regarding safety of product
common law product liability
based on negligence
common law duty of care owed by manufacturers
Safety of product only. Quality and value must be contract claims
who can owe a common law duty of care regarding product liability
manufacturers, repairers, fitters, makers of component parts, those selling products after inspections and repairs.
What main duty of care does an employer have towards an employee
To take reasonable care for employees safety while at work
What are the non delegable duties of an employer to an employee
Competent staff
Adaquate material
Proper system of work and supervision
Safe place of work
What is the difference between an employers common law duty of care to an employee and their duty under OLA 1957
OLA can be delegated and applies only to premises where employer is occupier
Common law duty cannot be delegated and applies anywhere employee works
How can the employer meet their non delegable duty
Take reasonable steps
Meet the standard of care expects of a reasonable employer in their position
How is the breach of duty of an employer assessed
The same as other negligence
Eg foreseeability of risk, cost and practicality of precautions etc
Is an employer liable for stress of employee
Was it reasonably foreseeable
Nature, extent of work, signs from employee
Does a breach of the health and safety at work etc act 1974 attract criminal or civil liability
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
3 requirements for VL
Tort
Employee
Course of employment
Is VL a tort
No it is a principle which makes someone liable for the torts of another
Does VL remove liability from the employee
No they are both jointly liable
5 criteria in VL to determine if the relationship is of employment or akin to it
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
Can an employer be liable in VL even if they expressly prohibited the act
Yes
How can you tell if an act is committed outside the course of employment
It is a question of degree
Can an employer who is VL claim an indemnity from the employee
Yes for full loss
What is the lister principle
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
What guidance did mohamud give on the lister principle
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
What is the wide rule- negligence product liability
Neighbourhood principle
What is the narrow rule - negligence product liability
What a manufacturer owes a duty to a consumer
What must you establish to show a duty of care under the narrow rule - negligence
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
Who is a manufacturer - narrow rule
anyone who works on a product before it reaches the consumer incl supplier and retailer
Is a supplier included in the definition of a manufacturer - narrow rule
Only if they ought to reasonably test / inspect product or if they know of danger
Who is a consumer - narrow rule
Ultimate user and anyone likely to be injured by Ds negligence
What is it not possible to claim under the narrow rule
If there is a reasonable possibility of intermediate examination
ClAim against intermediate examiner instead
What kind of loss can be recovered under the narrow rule
Personal injury
Damage to property
What loss cannot be recovered under the narrow rule
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
What is the manufacturers standard of care in a product liability claim
Reasonable manufacturer
Does warning the consumer of risks meet the standard expected of a manufacturer
Yes
Does res ipsa loquitur apply to produce liability cases
No
Does contributory negligence apply to product liability cases
Yes
Does the defence of consent apply to product liability cases
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
What kind of loss can be recovered under Consumer Protection Act 1987
Death or personal injury of any amount
Damage to private property exceeding £275
Is damage to business property recoverable under consumer protection act 1987
No
Is cost of repair or replacement of defective product recoverable under consumer protection act 1987
No - pure economic loss
Defences under consumer protection act 1987
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)
Can you claim under the consumer protection act and in negligence
You can select between them but cannot recover the same loss twice
What is a defect
Unsafe
Safety of product is not as persons generally entitled to expect
Does D need to be at fault to be liable under consumer protection act
No it is strict liability
What is a product according to consumer protection act
Any goods or electricity including component parts and blood
Who can be a D in a claim under consumer protection act
Manufacturer
Own brander
Importer. ( into EU only)
Supplier ( only if others cannot be identified)
Does contributory negligence apply to a claim under consumer protect act
Yes
Can D exclude, limit or restrict their liability in any way under consumer protection act
No
