WS 6 - Employers' Liability

Question 1

Structure for breach of statutory duty answer?

Answer 1

STEP 1: Does the statute, if breached, allow a claim in tort?
STEP 2: Is there a duty under the statute?
STEP 3: Has there been a breach of this specific statutory duty?
STEP 4: DAMAGE
STEP 5: CAUSATION: Did D’s BoSD CAUSE D’s harm?
6: Consider relevant defences

Question 2

Does the statute, if breached, allow a claim in tort?

Answer 2

1) Check the WORDING of the statute – is this made clear there?
2) If not, check case law on this issue.
3) If none, the court will decide – consider the presumptions
(see other cards for details of last steps)

Question 3

Presumptions that statute allows claims in tort

Answer 3

a. If the statute protects a LMITED, ASCERTAINABLE CLASS, a claim in tort can be brought (Lonrho v Shell Petroleum)
b. Where the statute IMPOSES A SANCTION, it is less likely Parliament intended it to give rise to a civil claim in tort. BUT – Groves v Lord Wimbourne rebuttable where:

i. The size of the penalty is inadequate compared to C’s loss
ii. The victim is not entitled to receive all of this fine

c. Where the statutory duty coincides with/complements the COMMON LAW (see Wilson duties below), it is more likely Parliament intended a civil claim to be available
d. [Context of the statutory duty]

Question 4

What question do you ask to determine whether a duty is owed under the statute, to this particular claimant?

Answer 4

Does C fall exactly within the protected class (and do the facts fall exactly within the statutory wording – Chipchase v British Titan)? If so, there will be such a duty

Question 5

What must be checked to see if there has been a breach of the statutory duty?

Answer 5

wording of the statute. Is there mandatory wording? If so this imposes strict liability (Stark v Post Office) duty is absolute

If qualifying words (as far as possible etc) -Onus of proving that it was not reasonably practicable to comply with the requirements lies with the defendant – diff to negligence claim (Nimmo v Alexander Cowan)

Question 6

Gorris v Scott

Answer 6

The damage/harm must be of a kind the statute was trying to prevent

Question 7

STEP 5: CAUSATION: Did D’s BoSD CAUSE D’s harm?

Answer 7

1) Apply the ‘but for’ test (McWilliams v Arrol), and consider whether there were any intervening events
2) No need to consider remoteness rules (this is taken care of in STEP 4)

Question 8

Is volenti available to the employer?

Answer 8

1) Volenti (consent)
a. Wheeler v New Merton Mills: As a matter of policy, not usually available where employee sues his employer for BoSD

EXCEPT WHERE:
b. ICI v Shatwell: it is an employee who has breached the duty, and the employer is held vicariously liable

Question 9

Will the courts find contributory negligence against employee?

Answer 9

a. Caswell v Powell Duffryn: courts slower to make a finding of CN against an employee working in factory-type conditions (noisy conditions, repetitive tasks)

Question 10

Structure for answering problem scenario on common law negligence

Answer 10

STEP 1: DUTY OF CARE: Set out the duties that employers owe to their employees
Wilsons & Clyde Coal Co v English
-competent staff
-adequate plant and mach
-safe system of work and supervision
Latimer v AEC
-safe place of work

STEP 2: Has there been a BREACH OF DUTY?

STEP 3: Did the breach of duty CAUSE the harm in question?

STEP 4: Are and DEFENCES available to the employer?

Question 11

Facts of Wilson & Clyde Coal Co v English

Answer 11

Mr English employed by Wilsons and Clyde in a colliery at Glencraig. Accident at 27th March 1933, was repairing an airway on a haulage road, at a time when the haulage plan would be set in motion. He tried to escape through a manhole but was caught by a rake of hutches and crushed. HoL – Held that an employer has a non delegable duty to create a safe system of work. Lord Wright:

Question 12

What were the three duties owed by employer outlined by lord wright? What did Latimer v AEC add?

Answer 12

Lord Wright: 3 duties to take reasonable steps to provide:

• Competent staff
• Adequate material (i.e. equipment and machinery)
• A proper system of work and supervision

House of Lords in Latimer v AEC [1953] added a further duty:

• To take reasonable steps to provide a safe place of work

Question 13

a. Hudson v Ridge Manufacturing

Answer 13

duty to provide competent staff arises when an employer KNOWS/OUGHT TO KNOW of the RISK posed by an employee

Question 14

Facts of Hudson v Ridge Manufacturing

Answer 14

– For nearly four years one of the D’s employees had made a nuisance of himself to colleagues, including plaintiff, a disabled person. Had been reprimanded many times. He tripped up a staff member.

Question 15

Waters v Commissioner of Police for the Metropolis [2002]

Answer 15

Duty to provide competent staff arises where an employer knows or ought to know, about the risk a particular worker is posing to fellow workers.
- Risk being posed could be of psychological as well as physical harm

Question 16

Important areas for employer to consider when employing competent staff

Answer 16

• selection of staff
• training
• supervision
• dismissal of employees who pose risk despite adequate training

Question 17

2) A duty to provide ADEQUATE PLANT, EQUIPMENT AND MACHINERY. Relevant where?

Answer 17

i. Employer provides plant/equipment which is INADEQUATE in some way
ii. Employer does not supply ALL the plant/equipment required for the job

Question 18

When can an employee sue employer for damage caused by a defect caused by a 3rd party?

Answer 18

b. Employer’s Liability (Defective Equipment) Act 1969, s.1(1)
i. Relevant where a defect in equipment was caused by a 3rd party (manufacturer/supplier)
ii. If injured by this defect, employee may sue EMPLOYER themselves, provided he can establish:
1. Fault on the part of someone
2. This fault CAUSED employee’s injury

Question 19

What is A duty to provide A SAFE SYSTEM OF WORK AND SUPERVISION

Answer 19

i. Employer must not only devise a safe system of work, but take reasonable steps to ensure it is complied with. Covers: physical lay-out, training, warnings, notices, safety equipment etc

Question 20

ii. Walker v Northumberland CC

Answer 20

duty to provide safe system of work and supervision extends to stress-induced (psychiatric) harm

Question 21

iii. Hatton v Sutherland

Answer 21

confirmed Walker, but added the rule – employer is only liable where injury to health through stress at work is REASONABLY FORESEEABLE. In deciding this, consider:

1. Nature & extent of the work itself (heavy workload? Widespread absenteeism?)
2. Signs from employee himself (but disregarding any problems in his personal life)

Question 22

Latimer v AEC:

Answer 22

duty to provide safe place of work

Question 23

Where does the duty to provide safe place of work apply?

Answer 23

i. Applies to WHEREVER employees are at work (General Cleaning Contractors v Christmas), not just premises of employer

Question 24

Can the duty to apply a safe work place be delegated?

Answer 24

ii. Cannot be delegated to an independent contractor (as can be done under s.2(4)(b) OLA 1957)

Question 25

a. Withers v Perry Chain [1961]

Answer 25

Claimant worked for Perry Chain and in the premises where there was a substantial risk of contact with grease. She suffered a reaction to the grease and developed dermatitis. The Ds moved her to the least greasy job they could find but she still suffered another reaction. The court decided that the employers had done all that a reasonable employer should be required to do in the circumstances and that they were not in breach.

Question 26

What could the employer do to show he had taken reasonable steps not to breach duty?

Answer 26

b. Risk Assessment would show reasonable acts to help avoiding breach of duty of care. Employers have many incentives to avoid breaching their duty (Health and Safety violation consequences)

Question 27

If breach is unclear, what should be considered?

Answer 27

2) Consider factors determinative of breach (Bolton v Stone; Miller v Jackson; Paris v Stepney; Latimer v AEC; Watt v Hertfordshire CC (see WS 2 Negligence (Duty and Breach)

Question 28

Will an employer be able to rely on volenti against a Neg claim?

Answer 28

a. Smith v Baker: rarely allowed, employees not deemed to have freely consented to risk of being injured by employer’s negligence (hard to resist, livelihood depends upon it) rather, are obliged to

Question 29

Is contributory negligence available as a partial defence?

Answer 29

a. Although available under the Law Reform (CN) Act 1945, not always successful (See above – BoSD: STEP 6)

Question 30

Definition of vicarious liabiltiy

Answer 30

VL is not a tort but a principle of law. If the claimant can show that a tort has been committed by an employee in the course of employment, then can sue the employer.

Question 31

Definition of employee?

Answer 31

Ready Mixed Concrete v Minister of Pensions: Per McKenna J:

1) Provides work for remuneration
2) Agrees that he is subject to the sufficient control of another, in the performance of his service
3) Other provisions of contract are consistent with a contract of service

Question 32

Classic definition of “in the course of employment”

Answer 32

• Salmond classic definition, given common law authority in Lister v Hesley Hall: employer will be liable for:
o Wrongful ACTS it has authorised (see below – Poland)
o Wrongful and unauthorised MODES of carrying out authorised acts (see below – Century Insurance)

Question 33

Case that illustrates acts which have been impliedly authorised

Answer 33

• Poland v Parr: Employee in charge of barrow. A boy stole from barrow. Employee hit boy and knocked him into road where hit by vehicle. off duty employee protecting his employer’s property deemed to have IMPLIED PERMISSION to protect master’s property

Question 34

Case which illustrates wrongful and unauthorised modes of carrying out authorised acts?

Answer 34

• Century Insurance v NI Road Transport Board: oil tanker driver smoking while unloading tank of oil

Question 35

Example of where an act was not in the course of employment

Answer 35

• Warren v Henleys: employee’s punching customer in face after insult deemed as a PERSONAL ACT

Question 36

Extension of Salmond: When can an employer be vicariously liable for an employee’s intentional torts?

Answer 36

• Tort STEMMED from an act authorised by the employer (Lloyd v Grace Smith: Law firm was held VL for torts of fraudulent clerk because it held out the person as trustworthy)
• Tort was CLOSELY CONNECTED to the work employee employed to do (Lister v Hesley Hall

Question 37

• Majrowski v Guys and St Thomas’ Hospital NHS Trust [2006]

Answer 37

employer can be liable for violations of Protection from Harassment Act 1997 by employee. Extension of principle in Lister v Hesley Hall

Question 38

What about torts expressly prohibited by employer?

Answer 38

o Rose v Plenty: where an act is done to further employer’s business, it may be deemed as done in the course of employment [Driver of milk float expressly prohibited from picking up boys. Did so, went round corner and crushed boys foot against curb. Court decided prohibition concerned the manner in which he did his work. Purpose of picking up Francis Rose was to assist in the business. Company was VL]
o Twine v Bean’s Express: where act is something employee has no right to do, and act NOT done to further employer’s business, NOT done in course of employment [driver expressly forbidden to pick up hitchhiker. Nevertheless picked on up, crashed and HH died. Court held this was outside the scope of employment]

Question 39

when is an employee on a frolic of his own? (Joel v Morrison)

Answer 39

o Hilton v Thomas Barton: question of degree. Consider:
• EXTENT of the deviation: major departure or minor detour?
• PURPOSE of the deviation: if employee was still going about the employer’s business at time of tort, not on a frolic of his own

Question 40

Harvey v RG O’Dell:

Answer 40

Re frolic of his own: Consider whether deviation was reasonably incidental to one’s work

Question 41

Lister v Romford Ice & Cold Storage

Answer 41

Employers have the right at common law to claim an indemnity (full loss) from the employee who committed the tort.

But – gents agreement not to purse claims unless

Question 42

Where an employee commits a tort while on secondment, who is liable?

Answer 42

Mersey Docks & Harbour Board v Coggins & Griffiths [1947] – Test as to who the employer is: who is entitled to tell the employee the way in which he is to do the work upon which he is engaged?

Question 43

Viasystems v Thermal Transfer CA [2005]

Answer 43

Court of Appeal has held that 2 employers can be vicariously liable for the tort of one employee. Dual liability will arise where an employee is lent or temporarily transferred to work for another and both employers are entitled or obliged to control the employee’s actions as to prevent the negligent act

Question 44

Baker v Quantum Clothing Group [2011]

Answer 44

2) Whether or not a duty is an absolute one is, however, a decision for the court. Baker v Quantum Clothing Group [2011] – SC decided that ‘safety’ in the context of s.29 Factories Act 1961 was not an absolute obligation but had to be measured according to the general knowledge and standards of the time.

Question 45

2) Hartley v Mayoh & Co [1954]

Answer 45

widow of a fireman who was electrocuted while fighting a fire at a factory was not able to sue for breach of a statutory duty owed ‘to persons employed in the factory’

Question 46

Which House of Lords case confimed hatton v sutherland

Answer 46

barber v somerset

Question 47

X v Bedfordshire CC

Answer 47

breached duty when it did not prevent child abuse or provide adequate education services.

Question 48

• McDermid v Nash Dredging

Answer 48

the duty of care owed to employees is non-delegable

Question 49

• Bux v Slough Metal [1974]

Answer 49

Ds complied with statutory duty to provide protective goggles. However, they were in breach of common law duty as they did not make sufficient effort to ensure the goggles were worn
o Common law may impose higher duty than common law