6. VICARIOUS & EMPLOYER'S LIABILITY Flashcards
VICARIOUS LIABILITY
DEF: The liability of an employer for losses caused by their employee(s)
Owing to the requirement for employers to have insurance cover for their employees (Employer’s Liability (Compulsory Insurance) Act 1969) and the fact that employers will generally have greater financial resources than employees, Cs SHOULD/WILL often, if not always, attempt to sue an employer VICARIOUSLY FOR THE LIABILITY OF THEIR EMPLOYEES.
Three elements are REQ. to establish the VL of an employer for their employee:
- a TORT COMMITTED BY THE EMPLOYEE
- an EMPLOYMENT RELATIONSHIP between EMP and EMPee.
- The tort must be committed IN THE COURSE OF EMPLOYMENT
VL: TORT COMMITTED BY EMPee
EMPee must have committed a tort. Will usually be negligence, but can also be Tpass to the person. All req for the relevant tort must be satisfied NEGLIGENCE - D of Care - B of Duty - Causation - Remoteness - Defences
Tpass to the person
- Battery
- Assault
- False Imprisonment
VL: EMPLOYMENT RELATIONSHIP
An employment relationship must exist between EMP and EMPee. There are two types of employment relationships:
- A contract of Service
- A contract for Services
GENERAL PRINCIPLES
- a C of Service equates to an EMP/EMPee relationship, EMP WILL be VL.
- a C for ServiceS equates to an EMP/Independent contractor relationship, EMP will NOT be VL.
- If not clear what the relationship is, the ECONOMIC REALITY TEST should be applied in order to establish the nature of the relationship.
VL: Employment Relationship - MULTIPLE/ECO REALITY TEST
Est. in (Ready Mixed Concrete v Minister of Pensions)
THREE elements considered when determining the employment status of the individual:
- REMUNERATION
- – an unpaid individual will be a VOLUNTEER
- – HOW OFTEN and the MANNER in which they are paid is also relevant.
- LEVEL OF CONTROL
- – The higher the degree of control EMP exercises over EMPee, the MORE LIKELY it is that an relationship will exist (Yewens v Noakes; Argent v Minister for Social Security)
- CONTRACTUAL TERMS
- – the nature of the contractual provisions and terms governing the relationship. EG uniforms, equipment, tax, holidays.
The following factors are used in order to help determine whether the three elements above exist (Warner Holidays v SoS for Social Services)
- LEVEL OF CONTROL: Not always useful (Cassidy v Ministry of Health)
- PROVISION OF TOOLS AND EQUIPMENT
- SALARY
- TAX/PAYE/NATIONAL INSURANCE (Airfix Footwear v Cope): PAYE makes a worker more likely to be an EMPee, self-assessment more likely a contractor.
- SICK PAY
- BEARING THE RISK OF PROFIT/LOSS: the more the EMP bears the risk, the more likely an EMP/EMPee relationship is.
- RESIDUAL CONTROL
- CONTROL OF INDIVIDUAL’S HOURS OF WORK
- ABILITY OF INDIVIDUAL TO DO OTHER WORK (Argent v Minister of Social Security): the greater the restriction on worker to do other work, more likely will be an EMPee. EG exclusivity clauses or restraint on trade clauses.
- DESCRIPTION/LABELLING OF THE RELATIONSHIP (Massey v Crown Life Insurance Co; Ferguson v John Dawson and Partners)
- – labelling of the relationship is not conclusive, it is the SUBSTANCE of the relationship that matter most. (Same cases)
- MUTUALITY OF OBLIGATIONS: the higher the level of obligation on EMP and EMPee to provide/do the work, the more likely an EMP/EMPee relationship is.
- – Casual workers are unlikely to be employees
- – EG: casual wine waiters (O’Kelly v Trusthouse Forte), Seasonal tourist workers (Carmichael v National Power)
VL: Employment Relationship - M/E Reality Test - AKIN TO EMPLOYMENT/LENDING EMPLOYEES
Courts prepared to consider relationships ‘AKIN TO EMPLOYMENT’ (where there is no strict employment but relationship is such that it is sufficiently similar) as sufficient to impose VL. Particularly on policy reason that compensation should be available to victims and employers typically have greater resources.
- only SUGGESTED (JGE v Trustees of Portsmouth RC Diocesan Trust: Various Claimants v Institute of the Brothers of the Christian Schools).
LENDING EMPees.
GR: there is a presumption that when an EMP lends an EMPee to a hirer/another EMP, the ORIGINAL EMP remains liable (Mersey Docks v Coggins & Griffiths)
- Original EMP may be able to REBUT this presumption (Hawley v Luminar)
- EXTENT OF CONTROL the original EMP exercises is often a determining factor.
- In RARE circumstances, BOTH EMPs may be jointly liable (Viasystems v Thermal Transfer)
VL: COURSE OF EMPLOYMENT
EMPee must have committed the tort in the “course of employment”, which is defined widely.
ACTIONS IN THE COURSE OF EMPLOYMENT
- EMPee’s will be in CofE if it it (Winfield):
- – expressly/impliedly authorised, OR
- – incidental to EMPee’s duties, OR
- – an action which has been authorised by EMP but performed in an unauthorised way.
- —– EGs: a bus driver racing with another driver (Limpus v London General Omnibus), a railway porter injuring a passenger by pulling him onto the train (Bayley v Manchester Railway), an explosion caused by a lorry driver smoking near petrol (Century Insurance v Northern Ireland RTB)
ACTIONS OUTSIDE THE COURSE OF EMPLOYMENT
- EMPee’s action will be outside the CofE if it constitutes a “frolic of his own” (Joel v Morison per Parke, B):
— outside the scope of actions EMPee authorised to do, OR
— expressly prohibited by EMP.
EGs: a bus conductor driving a bus (Beard v London General Omnibus), a bouncer assaulting an individual outside a nightclub (Daniels v Whetstone Entertainments), a bus conductor assaulting a passenger (Keppel Bus, Saab Bin Ahmad), the actions of an off-duty police officer (Makanjuola v Metropolitan Police Commissioner)
VL: Course of Employment - SPECIAL SITUATIONS
Certain rules govern special situations such as:
- EMP express prohibitions
- Deviations from an authorised route
- Criminal Acts
EMP EXPRESS PROHIBITIONS
- EMP may limit the SCOPE of EMPee’s work but not the mode of its performance.
- The following prohibitions were acceptable:
— prohibition on drivers picking up hitchhikers (Twine v Bean’s Express), “ giving lifts to other companies’ EMPees (Conway v George Wimpey).
NB: an EMP was VL for a boy who was injured while helping a milkman on his rounds. Allowing the boy to help was only an unauthorised mode of performance, he was still doing something he was authorised to do. (Rose v Plenty)
DERIVATIONS FROM AN AUTHORISED ROUTE
- Drivers deviating from an authorised route may be outside the CofE, depends on the extent of their deviation (Stoney v Ashton)
- A journey will AUTO be outside CofE if it is:
- – new, AND
- – independent, AND
- – unconnected with their employment, OR
- – to or from work (unless on EMP premises)
- Journey is likely to be within CofE if (Smith v Stages):
- – travel expenses are paid, AND
- – within working hours.
- Travelling to and from work outside of working hours is therefore likely to be outside CofE.
CRIMINAL ACTS
GR: criminal activities are outside CofE (Warren v Henlys; Heasmans v Clarity Cleaning)
- EX 1: where the tort is connected closely enough with the nature of the criminal’s job (Lister v Hesley Hall)
- EGs: EMPee assaulting a customer in an altercation about ticket verification (Fennelly v Connex), bouncer stabbing someone after returning to a club with a knife (Mattis v Pollock), child abuse where EMPee worked with children (Lister v Hesley Hall; MAGA v Birmingham Archdiocese), assaulting a co-worker in a factory (Wallbank v Wallbank), a rugby player punching another player during a game (Gravil v Carroll).
VL: EMP INDEMNITY/CONTRIBUTION
If EMP required to pay for an EMPee’s tort, may be able to seek indemnity from EMPee under:
- s.1(1) Civil Liability Contribution Act 1978, OR
- Common Law (The Lister Principle)
s. 1(1) CLCA 1978
- EMP claim will be permitted by the court where it is ‘just and equitable’ to allow it (s.2(1) CLCA)
- if EMP in no way responsible for EMPee tort, may recover the full amount of damages paid to C from the EMPee.
COMMON LAW (The Lister Principle) - (Lister v Romford Ice and Cold Storage) - Loss suffered by C must be a result of EMPee's breach of contract, AND EMP was in no way responsible for EMPee's tort.
NB: Stricter req. of Lister Principle mean that generally, an EMP will attempt to seek a contribution from EMPee under s.1(1) CLCA as their first port of call.
EMPLOYER’S LIABILITY
EMP Liability concerns the liability an EMP will owe for breach of Duty of Care owed to their EMPee(s).
After EMP Relationship established (same as for VL). Follow same structure for a normal tort claim, just has tweaks here and there.
EL: DUTY OF CARE
EMP owe a duty of R care and skill regarding the safety of their EMPee’s (Winter v Cardiff Rural District Council)
- the duty is NON-DELEGABLE (McDermid v Nash Dredging)
- Compliance with statutory duties alone my not be enough for EMP to comply with DofC (Bux v Slough Metals)
- EMP required by law to take out insurance to cover potential claims by their EMPees (EL(CI)A 1969; EL(CI)R 1998)
The duty encompasses a duty to provide the following (Wilson and Clyde Coal v English):
- R COMPETENT FELLOW STAFF: EMP liable if they
- – hire EMPees incapable of doing their job (Black v Fife Coal)
- – employ persons who they know or ought to know are practical jokers (Hudson v Ridge Manufacturing Co), though potentially not where the incident is a ‘one-off’ occurrence (Smith v Crossley), being a one-off will not stop the EMP being VLiable if tort is in the course of EMP.
- – permit bullying or sexual harassment to occur in the workplace (Harrison v Lawrence Murphy)
- SAFE PREMISES, PLANT EQUIPMENT, MACHINERY AND MATERIALS: covers the safe provision of
- – the structures, appliances and operations taking place on the business premises (Smith v Charles Baker and Sons)
- – 3rd party premises, although a lower standard of care will be required to be exercised over a 3rd party’s premises (Wilson v Tyneside Cleaning).
- – also includes a req. to provide safety equipment (Qualcast v Haynes) and ensure that it is used/worn (Bux v Slough Metals). EMP can only escape liability here if EMPee refuses to use/wear equipment (Yorkshire Traction v Walter Searby)
- – “equipment” is widely defined, includes ships (Coltman v Bibby Tankers) and flagstones (Knowles v Liverpool CC)
- A SAFE SYSTEM OF WORK
- – “system of work” covers the physical layout of the job, the sequence, the provision of warnings (Speed v Thomas Swift)
- – Will NOT be sufficient for EMP to merely invent a safe system of work, they must ensure that it is PUT INTO PRACTICE (McDermid v Nash Dredging). ALSO, when devising a system of work, EMP must take R steps to ensure that it protects individuals with unique characteristics (Paris v Stepney BC cf. Withers v Perry Chain)
- – the level of risk in a given situation will determine the level of supervision and instruction EMP must provide to EMPees.
- – Coming up with safe methods of performing tasks is the job of the EMP, not EMPee (General Cleaning v Christmas)
- – The importance of the precautions will be weighed up against their cost (Latimer v AEC; Clifford v Charles Challen and Son cf. Woods v Durable Suites)
EL: BREACH
Determine whether EMP have breached their duty by failing to exercise R care and skill.
STANDARD: a R competent EMP.
- Judged OBJ (Latimer v AEC)
- The harm EMPee suffers must be medically recognised.
— eg: repetitive strain injury (Pickford v ICI cf. Mughal v Reuters), although psychological damage may also be covered (Walker v Northumberland CC; Barber v Somerset CC)
EL: CAUSATION
FACTUAL CAUSATION
- Single Cause: ‘BUT FOR’ TEST (McWilliams v Arrol)
- Multiple Causes: Consider the alternative approaches
- – Material Contribution (Bailey v MoD)
- – Balance of Probabilities (Wilsher v Essex AHA)
LEGAL CAUSATION
- TEST: has a NAI occurred?
- – Act of God
- – Act of EMPee
- – Act of 3rd party
EL: REMOTENESS
TEST: the TYPE of damage occurring must be R foreseeable (Wagon Mound (No. 1)). There is no need for the way in which the damage occurs or it’s extent to be foreseeable.
EL: DEFENCES
CONTRIBUTORY NEGLIGENCE (s.1 LR(CNA) 1945)
- The most common defence for EMP in EL cases.
- – EGs: an EMPee failing to wear safety goggles which EMP had provided (Bux v Slough Metals), an INEXPERIENCED EMPee changing a gas canister near a candle on a camping trip (Fraser v Winchester Health Authority), EMPee that cut off their finger using a saw they hadn’t been trained to use (Sherlock v Chester CC)
VOLENTI NON FIT INJURIA (consent)
- ONLY available to EMP where EMPee was in a situation where “there was a genuinely full agreement” to assume the risk of loss (ICI v Shatwell)
- Therefore, generally not available in EL cases as EMPee not considered to be working FREE FROM ANY KIND OF PRESSURE (Bowater v Rowley Regis Corp: Smith v Charles Baker)
ILLEGALITY
