Tort 5: Employers' Primary Liability and Vicarious Liability

Vicarious Liability

Legal doctrine under which a party can be held liable for the wrongful actions of another party.

McDermid v Nash Dredging

Employer's duty of care is personal and non-delegable

Wilsons and Clyde Coal v English

Employers obligations are: safe and competent employees, safe and proper plant and equipment, safe place of work/ premises and safe systems of work

Hudson v Ridge Manufacturing

Employer was in breach for employing a employee who was a risk (practical joker)

Black v Fife Coal

Duty to provide competent employees and managers

Qualcast v Haynes

Employer discharged its duty by providing appropriate protective clothing to employees

Yorkshire Traction v Walter Searby

An employer can only escape liability if the employee refuses to use/wear the safety equipment

Wilson v Tyneside Cleaning

safe place of work applied to 3rd p premises, though lower standard

Cook v Square

Court will consider: place of work, nature of building, degree of control exercised by employer and employer's knowledge of premises when considering third party premises

Conditions for safe system of work

Conditions include: physical layout of job, setting in stage, sequence in which work is carried out, provision of warnings, notices, training, supervision and issues of special instruction

General Cleaning Contractors v Christmas

Employers owe a duty to plan and organise a safe system for work so as to minimise the risk of injury

Bux v Slough Metals

Employer must encourage/insist on wearing of protective gear (but can escape liability if refused)

Clifford v Charles Challen and Son

Employer failed to provide protective substances and was found in breach of duty

Woods v Durable Suites

Employer provided protective substances and provided instructions and therefore was found not negligent

Latimer v AEC

Where the cost outweighs the risk, there is no breach of duty.

Paris v Stepney Borough Council

Employer can be found liable if there is a small risk with large magnitude of harm

McWilliams v Sir William Arrol

Factual causation uses "but for" test

Bowater v Rowley Regis Corporation

Judges are sceptical of consent defence in context of employment

ICI Ltd v Shatwell

Consent defence can only be used where "there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss"

Strict Liability

liability without fault

Relationship for Vicarious Liability

Must be a relationship of employment or akin to employment

Historical test for tort in course of employment

If wrongful act was: expressly or impliedly authorised by the employer, incidental to carrying out of employee's proper duties or an unauthorised way of doing something authorised by the employer

Current approach for tort in employment

Close connection test

Lister v Hesley Hall

employer held vicariously liable for sexual abuse committed by employee

Mohamud v WM Morrison Supermarkets

Morrisons held vicariously liable for employee's assault on a customer as it was part of a "seamless episode"

Fletcher v Chancery Lane Supplies

Close connection test no satisfied after cyclist collided with employee

Century Insurance v Northern Ireland Road Transport Board

LIABLE - Lorry driver caused explosion by carelessly smoking whilst filling lorry with petrol

Harvey v RG O'Dell

LIABLE - workman driving negligently injured colleague who was his passenger

Rose v Plenty

LIABLE - Boy injured whilst assisting milkman even though he was prohibited from enlisting help

Smith v Stages

LIABLE - Two employees injured in a car crash whilst travelling for work although technically not working

Joel v Morrison

NOT LIABLE - Employees act was expressly prohibited

Beard v London General Omnibus Co

NOT LIABLE - unauthorised conductor attempted to drive bus and ran over claimant

Story v Ashton

NOT LIABLE - Driver was convinced to drive somewhere not in course of employment when he injured passenger

Twine v Bean's Express Ltd

NOT LIABLE - Driver injured hitched he picked up despite express instructions not to do so

Employer's Indemnity

Court will allow for damages to be claimed against employee where it is just and equitable

Contract of service

contract between employer and employee

Contract for services

contract between employer and independent contractor

Ready Mixed Concrete v Minister of Pensions

Multiple factors/ economic reality test

Multiple Factors/ Economic Reality Test

Three part approach: Remuneration, control and all other contractual factors consistent with an employment relationship

Barclays Bank v Various Claimants

Barclays not liable for sexual offences committed by doctor as he was not an employee despite carrying out their medical examinations

Cox v Ministry of Justice

Relationships that are akin to that between employer and employee are capable of giving rise to vicarious liability

Mersey Docks and Harbour Board v Coggins and Griffiths

Original employer still liable if they lend their employee to another employer

Viasystems Ltd v Thermal Transfer Ltd

held that in rare occasions, both the lender and the lendee might be vicariously liable for the lent employee