5)Employers liability and vicarious liability

Question 1

What is employers’ primary liability?

Answer 1

The law of negligence applied to the employer/employee relationship.

It involves the duty of care owed by employers to ensure the safety of their employees.

Question 2

What is vicarious liability?

Answer 2

When one party is held liable for the torts of another, commonly in employer/employee relationships.

It involves three parties: the victim, the employee who caused harm, and the employer who may be liable.

Question 3

What elements are involved in identifying an employment relationship?

Answer 3

The definition of ‘employee’ and ‘relationships akin to employment’.

Vicarious liability can arise in relationships that are not strictly employer/employee.

Question 4

What distinguishes employers’ primary liability from vicarious liability?

Answer 4

Primary liability involves the employer being at fault and breaching their duty of care, while vicarious liability does not require the employer to be at fault.

Primary liability is directly related to negligence.

Question 5

What is the key feature of the employer’s duty of care?

Answer 5

It is personal and non-delegable.

Employers cannot delegate liability for breaches of duty regarding employee safety.

Question 6

What does the employer’s duty include according to Wilsons and Clyde Coal Co Ltd v English?

Answer 6

• Safe and competent employees
• Safe and proper plant and equipment
• Safe place of work/premises
• Safe systems of work with adequate supervision and instruction

This case established the specific obligations of an employer.

Question 7

What must an employer ensure regarding safe and competent employees?

Answer 7

Employers must select and employ competent staff.

Failure to do so can result in breach of duty.

Question 8

What is the employer’s duty regarding safe and proper plant and equipment?

Answer 8

To provide and maintain safe machinery, equipment, and necessary safety features.

Employers must ensure that equipment is safe and that protective clothing is available.

Question 9

What is the employer’s duty concerning the safe place of work?

Answer 9

To take reasonable care to ensure that the premises are safe for employees.

This duty extends to third-party premises where employees work.

Question 10

What does providing a safe system of work entail?

Answer 10

Includes physical layout, sequence of work, provision of warnings, training, and supervision.

This is the most frequently argued aspect of the employer’s duty.

Question 11

What is the standard of care expected from employers?

Answer 11

To take reasonable care, not an absolute duty.

An objective test is used based on what a reasonable employer would do.

Question 12

What is the ‘but for’ test in causation?

Answer 12

It determines if the harm would have occurred ‘but for’ the employer’s breach of duty.

This test is commonly applied in negligence cases.

Question 13

Is mental harm recoverable in negligence cases?

Answer 13

Yes, mental harm such as stress may be recoverable in some cases.

This reflects the evolving understanding of harm in negligence law.

Question 14

What defences apply to employers’ primary liability?

Answer 14

The usual general defences in negligence apply, including consent.

An employee’s consent to risk can affect liability.

Question 15

Fill in the blank: Employers’ liability for negligence is primarily concerned with the duty owed to _______.

Answer 15

[employees]

Question 16

True or False: An employer can delegate their liability for breaches of duty concerning employee safety.

Answer 16

False

Question 17

What is the primary duty of an employer in relation to employee safety?

Answer 17

An employer owes a personal and non-delegable duty to take reasonable precaution to ensure an employee’s safety.

This includes providing safe and competent employees, safe equipment, safe premises, and a safe system of work.

Question 18

What does remoteness refer to in negligence cases?

Answer 18

Remoteness refers to the consideration of whether the harm caused is sufficiently connected to the negligent act.

Courts have recognized that mental harm, such as stress, may also be recoverable in some cases.

Question 19

Under what circumstances can consent be used as a defence in employment negligence cases?

Answer 19

Consent can be used as a defence if an employee consents to the risk, but it is hard for an employer to establish this defence.

Judges are skeptical of this defence in employment contexts.

Question 20

What is contributory negligence?

Answer 20

Contributory negligence is a partial defence where the claimant’s own failure to take reasonable care contributes to the loss suffered.

For example, in Bux, the claimant was held 40% to blame for not wearing safety goggles.

Question 21

What is vicarious liability?

Answer 21

Vicarious liability is the liability of one party for a tort committed by another party due to a specific relationship between them.

It is a form of secondary liability, where the defendant is responsible for another’s wrongdoing.

Question 22

What is strict liability?

Answer 22

Strict liability is when a party is liable despite the absence of any fault.

In vicarious liability, the defendant incurs strict liability for the torts committed by another.

Question 23

What are the three elements required to establish vicarious liability?

Answer 23

• A tort has been committed by Party A
• Party A is an employee of Party B or in a relationship akin to employment
• The tort was committed in the course of Party A’s employment/quasi-employment

Question 24

What historical test was used to determine if a tort was in the course of employment?

Answer 24

Historically, a tort was considered in the course of employment if it was:
* Expressly or impliedly authorized by the employer
* Incidental to the carrying out of the employee’s proper duties
* An unauthorized way of doing something authorized by the employer.

Question 25

What is the current approach to vicarious liability following recent case law?

Answer 25

The current approach uses the 'close connection' test, focusing on the relationship between the employee's wrongful act and their employment duties. ## Footnote This emphasizes the relative closeness of the connection between the nature of the employment and the particular tort.

Question 26

In Lister v Hesley Hall Ltd, why was the employer held vicariously liable?

Answer 26

The employer was held vicariously liable because the employee's torts were closely connected to his employment, as he exploited children due to his position. ## Footnote The tort was committed on the employer's premises during working hours while he was performing his duties.

Question 27

What did the Supreme Court establish in Mohamud v WM Morrison Supermarkets plc regarding vicarious liability?

Answer 27

The Supreme Court established that there must be a sufficient connection between the employee's position and their wrongful conduct to make it fair and just for the employer to be held liable. ## Footnote The case involved an employee's assault on a customer being closely connected to his job duties.

Question 28

What is the significance of the 'close connection' test in negligence cases?

Answer 28

The 'close connection' test determines whether a negligent act is committed in the course of employment by assessing the connection between the employee's work and the act. ## Footnote This test has been applied in both intentional torts and negligence cases.

Question 29

What is the effect of the Civil Liability (Contribution) Act 1978 on employer liability?

Answer 29

Under the Act, an employer may seek an indemnity from their employee if they are forced to pay damages for the employee's tort, provided it is 'just and equitable' to do so.

Question 30

True or False: An employee's act that is expressly prohibited by the employer is always considered within the course of employment.

Answer 30

False ## Footnote Traditionally, if an employee's act is unauthorized or prohibited, it is deemed they were on a 'frolic of their own' and not in the course of employment.

Question 31

Fill in the blank: A tort must be committed by _______ before a defendant can be held vicariously liable.

Answer 31

[Party A]

Question 32

What is vicarious liability?

Answer 32

The liability of one party for a tort committed by another party.

Question 33

Under which act can an employer seek indemnity from an employee for damages paid due to the employee's tort?

Answer 33

Civil Liability (Contribution) Act 1978.

Question 34

What are the three conditions for Party B to be vicariously liable for a tort committed by Party A?

Answer 34

* A tort has been committed by Party A * Party A is an employee of Party B or in a relationship akin to employment * The tort was committed in the course of that employment/quasi-employment.

Question 35

What is the close connection test?

Answer 35

A two-fold test to determine if a tort was committed in the course of employment, focusing on: * Functions entrusted to the employee * Connection between the employee's position and the wrongful conduct.

Question 36

What distinguishes a 'contract of service' from a 'contract for services'?

Answer 36

'Contract of service' is for an employer/employee relationship, while 'contract for services' is for independent contractors.

Question 37

Why is the distinction between employee and independent contractor important in tort law?

Answer 37

* Case law on employer negligence applies primarily to employees * Employers can be vicariously liable for employees' torts.

Question 38

What is the favored approach to identify an employment relationship?

Answer 38

The 'multiple factors' or 'economic reality' test.

Question 39

What are the three parts of the approach to determine an employment relationship?

Answer 39

* Remuneration for personal service and mutuality of obligations * Control * Other contractual factors consistent with an employment relationship.

Question 40

What does mutuality of obligations entail?

Answer 40

The employer must provide work and the employee must perform it.

Question 41

What does the control factor in employment relationship evaluation consider?

Answer 41

The amount of control the employer has over the worker's tasks, performance, and work conditions.

Question 42

List factors that may indicate an employer/employee relationship.

Answer 42

* Tools and equipment provided by the employer * Tax/PAYE treatment as employee * Employee's integration into the organization * Parties labeling the relationship as employment * Receiving benefits like holiday pay and sick pay.

Question 43

What is a relationship akin to employment?

Answer 43

A situation where vicarious liability may apply even if the tortfeasor is not an employee but is not running an independent business either.

Question 44

What was the key finding in Barclays Bank Plc v Various Claimants regarding vicarious liability?

Answer 44

Barclays was not vicariously liable because Dr Bates was running his own independent business.

Question 45

What criteria make a relationship likely to be akin to employment?

Answer 45

* Employer has means to compensate the claimant * Tort committed as part of employer's business activity * Employer created the risk of the tort * Tortfeasor is under employer's control.

Question 46

What was the outcome in Cox v Ministry of Justice regarding vicarious liability?

Answer 46

The prison service was found vicariously liable for the torts of a prisoner working in the catering section.

Question 47

What is the general rule when an employer lends an employee to another employer?

Answer 47

The original employer remains vicariously liable for the employee's torts.

Question 48

What is dual liability in the context of vicarious liability?

Answer 48

A situation where both the original employer and the hirer can be vicariously liable for the employee's actions.

Question 49

What does the multiple factors test evaluate?

Answer 49

It assesses various elements to determine if an employer/employee relationship exists.

Question 50

True or False: An independent contractor can be vicariously liable for their own torts.

Answer 50

True.

Question 51

Fill in the blank: The doctrine of vicarious liability allows an employer to be liable for torts committed by an employee during the course of _______.

Answer 51

[employment]