Employer's and Vicarious Liability

Question 1

Which case is associated with establishing employer’s personal duty of care?

Answer 1

Wilsons & Clyde Coal Co Ltd v English [1938]

Question 1

What is the employer’s personal duty of care? in essence

Answer 1

take reasonable care to ensure employee’s health and safety at work

Question 2

What are the 4 components of ENDDC?

Answer 2

• Competent workforce
• Adequate material and equipment
• A safe system of working
• A safe workplace

Question 3

LIMB 1- COMPETENT WORKFORCE- provide case examples

Answer 3

Waters v Commissioner of Police for the Metropolis [2000]
Hudson v Ridge Manufacturing Co [1957]- joker colleague

Question 4

LIMB 2- MATERIAL AND EQUIPMENT; which statute governs this duty?

Answer 4

Employer’s Liability (Defective Equipment) Act 1969

Question 5

Why was ELDE act 1969 enacted?

Answer 5

to overcome the decision in Davie [1959]- employee was left without compensation were the manufacturer could not be found.

Question 6

How can an employer avoid liability with regards to failure to provide safety equipment? Think- causation. Give case law.- fell down and died

Answer 6

by proving that even if such equipment was provided, the employee would not have used it
McWilliam [1962]

Question 7

LIMB 3- A safe system of working. Give case law- clue dermatitis

Answer 7

Pape v Cumbria CC [1992]- provided rubber gloves, but did not warn the cleaner that she could contract dermatitis from the cleaning products going on her skin

Question 8

Ensuring a safe system is not always enough. The employer needs to ensure it actually operates.

Answer 8

Mullaney [2001]- awareness that employees can be careless as to risks
Jebson [2000]- drunk soldiers case; there was no supervisor present at the back of the truck

Question 9

duty of care extends past physical safety. Consider psychiatric/ economic- provide case law

Answer 9

stress and suicide- Cobb v IBC Vehicles [2008];Hatton [2002];
providing a reference- Spring v Guardian Assurance [1995]

Question 10

LIMB 4- A safe workplace- think of the extent

Answer 10

reasonably safe not entirely safe- Latimer v AEC Ltd [1953]- flooded factory; D put sawdust, couldn’t cover entire floor

Question 11

Provide some justifications for the imposition of vicarious liability

Answer 11

1. Employer is likely to be in a position to compensate the claimant- ‘deeper pockets’
2. The tort will have been committed as a result of an activity often directed by the employer
3. Employer takes on the risks carried with employing the employee

Question 12

The requirement for employment- VL- what is the old test for this? + case law

Answer 12

Stephenson Jordan & Harrison Ltd v McDonall and Evans [1952]- control on what is done and how it is done

Question 13

Christian Brothers case impacted VL significantly

Answer 13

shifted from control to managed/directed- much wider scope- ‘akin to employment approach’

Question 14

Prisoners fall into akin to employment category

Answer 14

Cox v Ministry of Justice [2016]

Question 15

Local authority and foster parents- akin to employment

Answer 15

Armes v Nottinghamshire CC [2017]

Question 16

the expansion of ‘akin to employment’ category was crushed- case law

Answer 16

Barclays Bank v Various Claimants [2020]- tortfeasor’s activities were not an integral part of the activities carried out by the business

Question 17

Which cases followed the more restrictive approach to ‘akin to employment’ category? post barclays

Answer 17

TVZ and others v Manchester City Football Club Ltd [2022]- not liable for sexual abuse by a former coach- he was never employed by the club
Blackpool FC v DSN [2021]- not liable for the actions of an unpaid scout
MXX v A secondary school [2022]- not liable for sexual assault by former pupil on unpaid work experience

Question 18

What could be an alternative if claimant cannot rely on VL?

Answer 18

non-delegable duty of care- remember wilsons

Question 19

the close-connection test- VL

Answer 19

Lister [2001]

Question 20

Why was the case of Mohamud [2016] critisised?

Answer 20

for making the close-connection test too easy to satisfy- policy considerations

Question 21

Recent SC decisions aim to clarify the law with regards to close connection (VL)? think to misuse of private info tort

Answer 21

WM Morrison is a return to a narrower formulation of the test found in Lister compared to broader approach in Mohamud

Question 22

claimant fell an died; never wore safety equipment at work

Answer 22

McWilliam v Arol [1962]

Question 23

employer needs to provide a proper system of working and instruct employees- dermatitis

Answer 23

Pape v Cumbria County Council [1992]

Question 24

employer took reasonable steps to provide a safe workplace- sawdust; oil; factory

Answer 24

Latimer v AEC Ltd [1953]

Question 25

provide competent workforce- bouncer at nightclub

Answer 25

Mattis v Pollock [2003]

Question 26

employee suffered eye injury due to defective tool- this led to the Employer’s Liability (Defective Equipment) Act 1969

Answer 26

Davie v Bew Merton Board Mills Ltd [1959]

Question 27

employer’s responsibility to keep their employees safe when working on 3rd Party premises- yes argument

Answer 27

McDermid v Nash Dredging & Reclamation Co Ltd [1987]

Question 28

employer’s responsibility to keep their employees safe when working on a 3rd party premises- reasonable steps argument

Answer 28

Wilson v Tyneside Window Cleaning [1958]; Cook v Square D Ltd [1992]

Question 29

fourfold test for VL- Commercial Risk Factors- case law

Answer 29

control, ownership of tools, chance of profits and risk of loss- Ready Mixed Concrete [1968]

Question 30

a person may be regarded as employee of more than one organisation- VL

Answer 30

Viasystems (Tyneside) Ltd [2006]

Question 31

uber drivers and other workers through apps are employees- case law

Answer 31

Pimlico Plumbers v Smith [2018]

Question 32

In the case of Mohamud [2016] the Lister test is narrowed. What is now to be considered when establishing close connection?

Answer 32

1) What the function or field of activities was and
2) whether there was a sufficient connection between the position in which he was employed and the wrongful conduct to make it right for the employer to be held liable.

Question 33

VL can occur in case of intentional acts- attack each other

Answer 33

Walbank [2012]

Question 34

company can be VL for acts at work organised social events

Answer 34

Bellman [2018]

Question 35

delivery cases- is the detour in the course of employment?

Answer 35

Storey v Ashton-independent journey; Hilton v Burton- frolic of his own

Question 36

merely offering counseling services does not discharge breach (psychiatric harm)

Answer 36

Daw v Intel [2007]

Question 37

the need for foreseeability in psychiatric harm

Answer 37

French v SS of Sussex [2006]

Question 38

whether or not a statutory duty creates a civil cause of action

Answer 38

access Parliament’s intentions- Hague [1991]

Question 39

statutory protection to wear safety boots may not be intended to protect against frost bites

Answer 39

Fytche [2004]