Vicarious Liability & Employers Liability PDF

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EMPLOYERS LIABILITYNEGLIGENCEEmployers Common Law Duty  Wilsons & Clyde Coal Co Ltd v English – o Lord Wright saw the employer’s common law duty as comprising of 3 separate duties. The 3 duties are to take reasonable steps to provide: o Competent Staff, Adequate Material & a Proper ...

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EMPLOYERS LIABILITY NEGLIGENCE Employers Common Law Duty  Wilsons & Clyde Coal Co Ltd v English – o Lord Wright saw the employer’s common law duty as comprising of 3 separate duties. The 3 duties are to take reasonable steps to provide: o Competent Staff, Adequate Material & a Proper System of Work & Supervision.  In addition, the House of Lords added a fourth duty to the list, in Latimer v AEC Ltd – o The duty to take reasonable steps to provide a safe place to work.  Lord Wright described the duty owed by employer to employee as being ‘personal to the employer’ o An employer cannot escape liability for the negligent performance of its duty by saying that it delegated its performance to someone else, ie an independent contractor/employee, whom it reasonably believed to be competent to perform it.  It is a non-delegable duty. o The relationship between an employer & employee is a close personal relationship, based on mutual trust and confidence and it is therefore appropriate that it is non-delegable. o The employee can simply allege that a given event or given state of affairs proves that the employer has breached its personal common law duty. o If the duty was delegable, an injured employee would be faced with the potentially difficult task of identifying the actual tortfeasor and suing him. Competent Staff –  An employer owes an employee a duty to provide the employee with competent fellow workers.  Hudson v Ridge Manufacturing Co – Streatfield J made it clear that the important factor in the case was that the employer knew about the risk that Mr Chadwick was posing to fellow staff.  The duty to provide competent staff will not therefore arise merely from the fact that a worker is incompetent. It arises where an employer knows, or ought to know, about the risk a particular worker is posing to fellow workers. o Waters v Commissioner of Police for the Metropolis – Lords confirmed that the risk being posed by the worker could be of psychological as well as physical harm.  Employers must consider the selection of staff, training, supervision, and appropriate dismissal.  Employers therefore need to be aware of staff issues as there is a duty of care. Adequate Plant & Equipment –  Relevant in 2 situations – o 1. Where an employer does provide plant/equipment to his employees but it is inadequate.

o 2. Where an employer does not supply all the plant/equipment needed for the job. This crosses over with the duty to provide a safe system of work.  The duty to provide adequate plant & equipment is therefore a demanding one.  They must provide all necessary equipment and maintain it to a safe standard.  Defective Equipment – o S1 Employers Liability (Defective Equipment) Act 1969 o S1(1)(b) – the third party referred to is commonly the manufacturer of the equipment, but the supplier would also come within the statutory provision. o The purpose of the Act is to save an employee from experiencing the potential difficulty of identifying and suing the manufacturer of defective equipment supplied to his employer.  The employee can sue the employer for breach of its duty to provide adequate plant & equipment instead. o The injured employee would have to establish two things – 1. Fault on the part of someone; 2. Causation. Safe System of Work  Widest and most frequently invoked branch of the employer’s duty.  The duty to provide a safe system of work includes, amongst other things, the physical lay out of the job, the sequence in which the work is carried out, and the provision of training, warnings, notices, safety equipment and the issue of special instructions.  It also covers situations where an employee has suffered stress due to the lack of a safe system of work.  It is not enough for an employer to devise a safe system, this duty also requires an employer to take reasonable steps to ensure that it is complied with.  Requires the employer to continuously assess the risks in its particular working environment – wide ranging & potentially onerous obligation as evidenced by the number of cases. Safe Workplace  Latimer v AEC Ltd – House of Lords confirmed that, in addition to the duties set out by Wilson & Clyde Coal, an employer owed a duty to an employee to take reasonable steps to provide a safe place of work.  There is an overlap between this common law duty in Negligence and the statutory duty provided by the Occupiers’ Liability Act 1957. o Under this Act, where there are dangers due to the state of the premises, an occupier owes a duty to visitors to take reasonable care for their safety. o An employer would qualify as an occupier in respect of work premises and an employee a visitor.  Despite this overlap, an employer’s common law duty to employees is more onerous than the duty under the 1957 Act – o Under the Act, an employer can comply with its duty by delegating work to an independent contractor s2(4)(b). The employer’s common law duty is nondelegable. o The 1957 Act applies to premises of which the employer is ‘occupier’. In General Cleaning Contractors v Christmas the House of Lords confirmed that the common law duty to provide a safe system of work applies regardless of where the employees are at work. An employer has to assess premises to

which his employees are sent for dangers, and implement a system to eradicate or minimise dangers. Stress At Work  Walker v Northumberland City Council – the Court of Appeal confirmed that the duty to provide a safe system of work can extend to an employee who has suffered stress as a result of work.  Duty  Hatton v Sutherland – the Court of Appeal laid down some guidelines as to how courts should deal with such claims. These have since been approved in Barber v Somerset County Council o In this case, the COA said that the threshold question to determine whether a duty would arise was whether injury to health through stress at work was reasonably foreseeable. o They should first consider the nature and extent of the work done by the employee, and second, signs from the employee himself. o An employer was generally entitled to assume an employee was up to the normal pressures of the job and was entitled to take what an employee told it at face value.  In Hatton, the Court of Appeal confirmed that the control mechanisms which apply to other claims for psychiatric harm have no role to play in claims for stress at work.  Breach –  An employer will be in breach of its duty if it fails to meet the standard of care to be expected of a reasonable employer in its position. The court will assess the standard of care to be expected by looking at all the circumstances of the case, including the magnitude of the foreseeable risk and also the cost & practicality of precautions.  A duty is owed to each individual employee. o Paris v Stepney Borough Council  Causation –  Once an employer has established a breach of the employer’s duty of care, the issues of causation, novus actus interveniens and remoteness must be considered, applying the usual tests.  Defences –  Volenti (consent) – rare for an employer to be able to successfully to raise the defence against an employee, because of the difficulty of showing that the employee freely consented to run the risk of injury caused by the employer’s negligence. o Smith v Baker  Contributory Negligence – careless employees may find their damages reduced by CN. The courts are prepared to make allowances for employees working in noisy conditions, doing repetitive work. o Caswell v Powell Duffryn Associated Collieries Ltd Statutory Health & Safety Regulations  Until recently, any discussion of employers’ liability in tort would have included references to the tort of breach of statutory duty. The position changed in 2013, s.69 Enterprise & Regulatory Reform Act 2013.  Regulations governing health & safety in the workplace are made under the Health and Safety at Work etc Act 1974;

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o Obligations for risk assessments; o Provision of information and training; o Maintenance of work equipment; o Personal protective equipment; o Lifting & handling; o Noise at work; o Lighting in the workplace; o Maintenance of floors to protect against risks of slipping & tripping. Breach of regulations under HSWA 1974 is a criminal offence. S47 HSWA 19745 (breach actionable in a civil claim) was amended by the ERRA 2013, which provides that breach of regulations made under HSWA 1974 is NOT actionable in a civil claim. Employee’s can therefore not bring a claim of breach of statutory duty. The health and safety regulations made under HSWA 1974 still remain in force, and, as noted above, breach gives rise to criminal liability. Although such regulations can no longer be relied upon as the basis for a claim for breach of statutory duty, it is likely that their provisions will remain relevant where an injured employee brings a claim of negligence. When considering a breach of duty, they will consider the content of statutory health and safety regulations. They are likely to be regarded as a guide to the standard which a reasonable employer ought to meet.

VICARIOUS LIABILITY  Vicarious liability is the liability of one person for torts committed by another. o The most common example is where an employer is vicariously liable for certain actions of his employees.  The scope of vicarious liability was considered by the Supreme Court in Various Claimants v Catholic Child Welfare Society & Others o They set out 5 criteria that are relevant to determine whether there is a relationship of employment or ‘akin to employment’: o 1. The employer is more likely to have the means to compensate the victim than the employee & can be expected to have insured against liability. o 2. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer. o 3. The employee’s activity is likely to be part of the business activity of the employer. o 4. The employer, by employing the employee to carry out the activity, will have created the risk of the tort being committed by the employee. o 5. The employee will, to a greater or lesser degree, have been under the control of the employer.  The three essential elements for vicarious liability to exist on the part of an employer are: the worker must be an employee, have committed a tort, and the employee’s tort must have been committed in the course of its employment.  Reasons for Vicarious Liability –

o Moral Reasons – encourages accident prevention and since the employer makes a profit from the employee’s activities, it should also bear any losses. o Practical Reasons – employees may not be worth suing financially. Employers are in a better position to insure against liability Requirements Who is an Employee?  The important distinction is between an employee (employed under a contract of service) and an independent contractor (employed under a contract for services). o Reaffirmed in the case of Barclays Bank pls v Various Claimants  The principle difference is that an employee performs a service for just the employer. An independent contractor provides services for several people.  An independent contractor is self-employed and therefore is in business on his own account.  In marginal cases, it can be difficult to establish a distinction. The test used today is the ‘multiple test’ from Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance) o Contract of Service would exist where 3 conditions were satisified; o 1. Employees agree that, in consideration of wage, they will provide their own work and skill in the performance of some service for their employer o 2. Employees agree, expressly or impliedly, that in the performance of that service they will be subject to another person’s control in a sufficient degree to make that person the employer. o 3. The other provisions of the contract are consistent with its being a contract of service. Provisions which are inconsistent with a contract of service would include a requirement that workers should provide their own tools or hire helpers, or an arrangement where the employee takes the financial risk rather than the employer. Employee Must Act ‘In the Course of Employment’  An employer is vicariously liable for an employee’s torts only if they were committed ‘in the course of the employee’s employment’.  An employer will be vicariously liable for wrongful acts which it has authorised, and wrongful & unauthorised modes of carrying out an authorised act (Lister v Hesley Hall Ltd) Acts expressly prohibited by the employer  The classic explanation of ‘course of employment’ would suggest that acts done in express contravention of a prohibition from an employer would fall outside the employee’s course of employment.  Rose v Plenty – the prohibited act was done to further the employer’s business. If the claimant had not been helping with the deliveries it is likely that, in disobeying the employer’s instructions, the milkman would have been acting outside the course of his employment.  Twine v Bean’s Express – a van driver gave a hitchhiker a lift despite being prohibited from giving lifts by his employer. The passenger died in an accident due to the driver’s negligence. The prohibited act did not further the employer’s business at all. Intentional Torts  Intentionally committed torts are also often criminal acts.

The classic Salmond definition suggests it is unlikely an employer would be vicariously liable for such acts, as they would neither be authorised acts nor unauthorised ways of doing authorised acts.  There are some cases where employers have been found vicariously liable – Lloyd v Grace, Smith & Co – conveyancing clerk used his position to fraudulently transfer property into his own name. The court found the fraud stemmed from an act that his employer had authorised him to do and so it fell within his course of employment.  The issue of whether intentionally committed torts can be within an employee’s course of employment has more recently been considered by the Lords.  Lister and others v Helsey Hall Ltd o An employer can be vicariously liable for an intentional wrong act committed purely for an employee’s benefit where there is a sufficient connection between the work he had been employed to do and the acts in question. The sexual assaults had been committed at the employer’s premises while the employee was caring for the children in performing his duties.  Maga v Birmingham Archdiocese of the Roman Catholic Church – o Priest’s sexual abuse on a 12 year old boy was sufficiently connected, under Lister to his job as a priest for his employer to be vicariously liable.  Mohamud v WM Morrison Supermarkets plc – provided guidance on the Lister principle. The court must ask what function/field of activities has been entrusted by the employer to the employee. They then must decide whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it fair and just for the employer to be liable. Frolic Cases  If an employer is acting outside his course of employment when he commits a tort, he is often said to be ‘on a frolic of his own’.  The phrase was established Joel v Morison  Many of the cases concern employees whose work involves driving and who commit a tort while deviating from the route authorised by employers.  They would consider the extent to which they have deviated from the authorised route. They would also consider the purpose of the departure from the authorised route. If he was still going about his employer’s business, it will not be a ‘frolic of his own’.  Hilton v Thomas Burton (Rhodes) Ltd Employer’s Indemnity  Where an employer has paid out to compensate someone, having been vicariously liable, the case of Lister v Romford Ice & Cold Storage Co Ltd is authority for the fact that the employer has a right at common law to claim an indemnity from the employee who committed the tort.  The employer and employee are jointly liable, and because of this there is also a similar right contained within the Civil Liability (Contribution) Act 1978  The prospect of employers insurers enforcing indemnity rights against employees, with damaging consequences for labour relations caused concern following the decision in Lister.  Employers liability insurers subsequently entered into a gentlemens agreement not to persue such claims for indemnity unless there was evidence of collusion or wilfil misconduct on the part of the employee. 

BREACH OF STATUTORY DUTY Claims for Breach of Statutory Duty  Curtis v Betts & Another – o Claimant made his claim under s2 of the Animals Act 1971. o The claim was successful. The court found that the defendants were not at fault in failing to control the dog. The claimant was successful in his claim for breach of statutory duty because liability was strict.  Claims for breach of statutory duty that were not successful – o Atkinson v Newcastle Waterworks Co o Phillips v Britannia Hygienic Laundry Co Ltd o R v Deputy Governor of Parkhurst Prison, ex p Hague o O’Rouke v Camden LBC IS THE BREACH ACTIONABLE IN TORT?  Not all statutes give rise to a civil claim if breached. Therefore, the issue tom be considered is whether the relevant statute allows a claim.  The courts will read the statute to see if it expressly states whether a claim will or will not lie in tort.  If the statute contains no clear indication, they will look at case law.  If the statute is unclear and there is no case law, the court will consider Parliament’s intention when passing the statute. Whether the Statutory Duty Protects a Limited Class of Persons  Eg. factory workers rather than the public generally.  If the statute protects a limited class, it is more likely that a claim in tort will lie in breach of its provision. (Lonrho Ltd v Shell Petroleum Co) Whether the Statute Itself Provides for any Sanction  If the statute does not itself provide any sanction then this may indicate that parliament did intend to allow claims in tort.  On the other hand if the statute provides a sanction such as a criminal penalty, then it is less likely that a civil claim will stand. Effectiveness of a sanction provided by the statute  Groves v Lord Wimborne – o The Court of Appeal concluded that the fine provided for by the legislation could not have been intended as the only remedy for breach because – o The financial level of the penalty when compared with the claimants loss. o Parliament clearly did not intend this to be adequate and exclusive compensation for serious injury or death. o The Secretary of State had a discretion whether to apply all or part of the fine for the benefit of the injured person. There was, therefore, no certainty that the injured employee would receive any of it. o The amount of the fine was to be assessed by reference to the nature of the events rather than the severity of the injury.  Where the sanction provided by the statue is a criminal penalty then, according to Lonrho, there is a presumption that this is intended as the sole means of

enforcement. However, cases such as Groves show that this presumption is rebuttal where the sanction is not an effective remedy. The Relationship between the Statute & Common Law  If it complements the common law, it is more likely that the statute gives rise to A cause of action.  In contrast, if allowing a civil claim would defeat or contradict existing common law principles then the courts are less likely to find that parliament intended as civil claim to lie. The Context of Statutory Duty  Finally, the courts will consider the context of the statutory duty under consideration .  Case law shows that legislation which serves a general social welfare function is unlikely to give rise to a claim for breach of statutory duty.

ELEMENTS OF THE TORT OF BREACH OF STATUTORY DUTY  The essential elements of the tort of breach of statutory duty are duty under statute, breach, damage and causation. DUTY –  As with negligence, the claimant must prove that the defendant owed the claimant a duty of care.  Unlike negligence however, the source of that duty is statue.  The court will look at the wording of the statute in question to see if a duty is owed to the claimant. ...