Tort Law - UNIT FIVE

employers liability and vicarious liability

What are the two areas of employer liability in tort?

Negligence, for breach of the personal duty an employer owes to every employee.

Vicarious liability, for a tort committed by an employee in the course of their employment.

What are the four parts of the employer’s common law duty? (Wilsons & Clyde Coal Co Ltd v English [1937])

Reasonable steps to provide:

1. competent staff

2. adequate plant and equipment (material)

3. a proper system of work and supervision

4. a safe place of work (Latimer v AEC Ltd [1953])

Can an employer escape liability by delegating performance of its duty?

No, the duty is non-delegable. The employer must see that reasonable care is taken, not just take care itself.

What standard of care does an employer owe its employees?

Reasonable care for employees’ safety, judged against a reasonable employer in its position. It is not a guarantee of safety.

Competent staff: what does the duty involve and when is the employer liable?

The employer must provide competent fellow workers. It is liable if it is aware (or reasonably should be aware) of a risk posed by an employee and does nothing.

• The employer should consider selection, training, supervision and dismissal of risky employees.

the risk that an employer must protect its employees from can be?

The risk can be physical or psychological (Waters v Commissioner of Police [2002]).

Adequate plant and equipment: what two situations does it cover, and which statute helps?

Equipment is provided but inadequate, or the employer fails to supply all the equipment needed for the job.

What does The Employer’s Liability (Defective Equipment) Act 1969 s1(1) lets an employee do? (adequate plant and equipment)

The Employer’s Liability (Defective Equipment) Act 1969 s1(1) lets an employee sue the employer where equipment is faulty.

Safe system of work: what does it include?

It is the widest duty. It includes:

• adequate training in the system

• supervision, at least at the outset

• monitoring that the system is complied with

  • disciplinary action against those who do not comply

Safe workplace: how does the common law duty differ from the Occupiers’ Liability Act 1957?

The common law duty is more onerous and applies wherever employees work. Under the 1957 Act an employer can comply by delegating to an independent contractor (s2(4)(b)). The common law duty is non-delegable.

Stress at work: what is the key case and what must be considered?

Walker v Northumberland CC [1995] held that the duty to provide a safe workplace can extend to stress-induced illness.

Under Hatton, what do the courts consider when assessing stress at work?

onsider the nature and extent of the work (was it too demanding?). The employer may take at face value what the employee says about being up to the job.

A duty is unlikely unless the employee told the employer of the toll, or the workload was so excessive that future problems were foreseeable.

What are the two questions on breach of duty?

What standard of care was expected (a reasonable employer in its position)? Did the employer fall below it?

Consider which risks the employer ought to have foreseen and which precautions it ought to have taken.

How does the Health and Safety at Work etc Act 1974 (HSWA) relate to civil claims?

Breaching a health and safety rule is a criminal matter (HSE or local authorities), not an automatic civil claim. An employee cannot simply say “you broke rule X so I win”. However, its content is heavily used by courts to judge whether the employer acted reasonably.

Causation and defences in an employer’s negligence claim?

Causation is the same as in ordinary negligence: factual and legal causation. The defences are contributory negligence and voluntary assumption of risk (which rarely succeeds). Courts are more lenient on contributory negligence for factory or repetitive work than for office work.

What is vicarious liability in nature?

It is a principle, not a tort, and a form of secondary liability. The employer is liable in addition to (not instead of) the employee. Both are jointly liable, and the claimant can sue either or both.

Why does vicarious liability exist? (moral reasons)

It encourages accident prevention by giving employers a financial interest in employees’ care. Employers profit from employees’ activities, so they should bear the losses.

Why does vicarious liability exist? (practical reasons)

Employees may not be worth suing. Employers are better placed to insure (e.g. motor insurance). Employers can pass the insurance cost on through higher prices.

What are the three essential elements of vicarious liability?

1. The worker must be an employee.

2. The employee must have committed a tort.

   1. The tort was committed in the course of their employment.

What is the modern two-stage approach?

Stage 1 (relationship): is it employment, or sufficiently akin to employment?

Stage 2 (connection): is the wrongful act sufficiently closely connected to the employment?

What is the test for a relationship “akin to employment”? (Various Claimants v Catholic Child Welfare Society [2012] UKSC 56)

1. The employer is more likely to be able to compensate the victim and is probably insured.

2. The tort was committed through activity done on the employer’s behalf.

3. The activity is part of the employer’s business.

4. The employer created the risk by employing the person to do the activity.

   1. The employee is under the employer’s control to some degree.

What is the Salmond definition of “in the course of employment”?

Wrongful acts which the employer has authorised, and wrongful and unauthorised modes of carrying out an authorised act.

Century Insurance v NI Road Transport Board [1942]: what does it show?

An authorised act done in an unauthorised way is still within the course of employment. The employer remains liable but can claim the damages back from the employee.

Acts expressly prohibited by the employer: what matters?

Look at the purpose of the act: was it to further the employer’s business or personal? In Rose v Plenty the prohibition related to the manner (mode) of doing the job, so the employer was still liable. Contrast Twine, where the prohibition limited the scope of the job.

Lister v Hesley Hall: what did the House of Lords decide and what are the two steps?

An employer can be liable for an intentional wrong committed purely for the employee’s own purposes, with no benefit to the employer, if there is a sufficiently close connection with the work.

• Step 1: what function or field of activities did the employer entrust to the employee?

  • Step 2: is the connection between the position and the wrongful conduct close enough to make it fair and just to hold the employer liable?

Frolic cases: how do courts decide if an employee is on “a frolic of their own”?

They look at geographical divergence and departure from the set task.

Can an employer recover from the employee it was vicariously liable for?

Yes. At common law the employer may claim an indemnity (its full loss) from the employee.

In practice, employers’ liability insurers have an informal agreement not to pursue this unless there is collusion or wilful misconduct.

What is the aim of tort?

To compensate victims for loss or injury and restore them as closely as possible to the position they would have been in had the tort not occurred.

are employers liable for independent contractors?

no