Employers' primary liability and vicarious liability Flashcards
(40 cards)
What is employer’s primary liability? Does it apply to other types of workers automatically?
Law of negligence applied to employee/employer relationship; DOC on employers to take reasonable care for safety of employees
Does not automatically apply to other workers like independent contractors or even those in a relationship ‘akin to employment’ (but duty might still be owed another way!)
What is vicarious liability?
Where one party is held liable for the torts of another
Not a tort but a determination of who is liable
In an employer/employee relationship there are three parties: 1) victim who suffers harm 2) employee that tortiously committed harm and 3) employer who might be vicariously liable for harm employee caused
How is employers’ primary liability and employers’ vicarious liability distinguished?
- In employers’ primary liability claim the C is always an employee of the D (employee sues employer for breaching DOC)
- In a case of employers’ vicarious liability the C is not necessarily an employee but tort is committed by one of employer’s employees
What does it mean for an employer’s duty of care to be ‘personal and non-delegable’?
Employers can delegate performance of the duty but not liability for beach; employers are directly liable if those they have entrusted with responsibility fail to exercise reasonable care re an employee’s safety
Ultimate responsibility of employee’s safety rests with employer
What 4 things is the employer under a duty to provide?
Used instead of basic formulation of reasonable care owed
Employer’s duty to take reasonable precaution to ensure safety of employee includes obligation to provide:
- Safe and competent employees;
- Safe and proper plant and equipment;
- Safe place of work/premises inc safe access and way out; and
- Safe systems of work with adequate supervision and instruction
One single duty: take reasonable precaution to ensure employee’s safety while at work
What does the obligation to provide safe and competent employees mean?
- An employer has a duty to select/employ competent staff (employer must (ought to) know about risk a worker imposes to other employees if they do)
- Breach if incompetent person employed or required to do a job not capable of doing
Hudson - employer hired a known prankster (repeatedly told off by foreman and should have been dimissed) and C succeeded in a claim against employer -
Where one employee injures a fellow employee, what can there be in addition to a possible action against employer for breach of duty to select safe and competent employees?
- Action against employee who caused harm (likely to be a waste of time financially)
- Employer being vicariously liable
What does the obligation to provide safe and proper plant and equipment mean? What is the limit?
Employer owes duty to provide and maintain safe machinery, plant and equipment (inc safety features and protective clothing)
Within reason…
Yorkshire Traction - C bus driver stabbed by bus driver and claimed D employer was negligent for not using protective screens - D argued screens could be dangerouslyt reflective and risk of assault in areas was low - court held employer not negligent
What does the obligation to provide safe place of work mean? What does it extend to?
- Employer to take reasonable care that premises employee works in are safe
- Extends to premises not owned/occupied by employer i.e. third-party premises (but is generally less e.g. window-cleaning business)
Wilson - window cleaning company owed duty to take reasonable steps to ensure all locations that window cleaners cleaned windows at were safe - but what was expected re safety was less than in terms of own premises
What does the obligation to provide a safe system of work mean? What might this require an employer to do for external sites?
- Includes physical layout of job, sequence in which work carried out, provision of warnings, notices, training and supervision, and issues of special instruction
- Employers may be under duty to go to site of work, assess risks and plan and organise safe system of work to minimise injury
Most frequently argued
General Cleaning - C employees had developed a dangerous method of climbing when cleaning windows rather than using ladder when they had not received instructions for sash windows - employers in breach
In terms of providing a safe system of work, what will not be enough?
Not enough to provide; must take reasonable steps to ensure it is complied with
Bux - C workers splashed with molten metal and lost sight in one eye - D employer complied with statutory duty to provide safety goggles but court held that duty extended to requiring employer to encourage/insist on wearing the goggles
Must instruction, persuasion or insistence be used for the wearing of protective equipment? What happens where an employee objects or refuses?
- Instruction, persuasion or insistence depends on nature and degree of risk of serious harm
- If refuse/object = employer may not be negligent for failing to enforce the use of safety equipment
Is it enough to keep protective equipment where C works and allow them to ‘fetch it if they wished’?
No, especially if they discourage its effectiveness - Clifford - barrier cream (protects against dermatitits) kept available at store and employees were able to grab it, but foreman discouraged its use - employer was negligent for failing to provide cream and for ensuring foreman encouraged use
Cf Woods - barrier cream available and foreman made known to C they should use it and provided instructions on when/how to use it - not negligent
How is the rule of breach applied in employer’s primary liability? What should especially be taken into account?
- Reasonable level of precaution taken based on the reasonable employer
- Should take into account employee’s personal characteristics e.g. Paris - employee with one good eye should be given protective goggles despite small risk of injury (significant consequences)
How is the rule of causation applied in employer’s primary liability (where will causation not be satisfied?)? What will be necessary in the case of more dangerous working environments?
Specifically in context of provision of safety equipment
- Factual causation - if employer can show that even if safety equipment had been provided the employee would not have used it = causation not satisfied
- More dangerous working environments = may be necessary to give specific instruction re safety equipment or enforce its use (novus actus arguments harder to establish)
Where is consent an acceptable defence in employers’ primary liability?
Can only be invoked in extreme circumstances where there is a genuine full agreement free ot any pressure to assume risk of loss
Where does contributory negligence succeed as a defence in employers’ primary liability cases and what is its effect?
- Where there is evidence that C employee failed to take reasonable care of own safety and this contributed to loss suffered (e.g. failing to wear safety goggles)
- Damages reduced to extent considered just and equitable re C’s share in responsibility
Why is vicarious liability described as a secondary form of liability?
D is being required to compensate the C for harm caused by another person’s actions
NB other person (employee) can also be claimed against
Does fault need to be proved on part of the D (employer)?
No - D who is vicariously liable incurs strict liability
Strict liability = liability in the absence of fault
What are the 3 elements needed to prove that B (employer) should be vicariously liable for a tort committed by A (employee)?
- A tort has been committed by A
- Party A was an employee of B (or is in a relationship akin to employment)
- Tort was committed in the course of A’s (quasi-)employment
2 considered after 1 and 3
Can an employer only be vicariously liable for negligence of their employees?
No - also intentional torts (e.g. battery)
What is the test for determining whether a tort was committed in the course of employment?
The close connection test - if there was a ‘closeness of connection’ between employee’s wrongful act and their employment
- Court considers time tort committed and all relevant circumstances
Lister - warden was eploiting children and was able to because of position; tort committed on employer’s premises during working hours whilst caring for children in performing duties - employer vicariously liable
What is the two-stage close connection test?
- What functions or fields of activities have been entrusted by the employer to the employee (what is the nature of the job)?
- Was there sufficient connection between the position in which they were employed and their wrongful conduct to make it just and fair for the employer to be held liable?
Mohamud - Petrol station employee committed battery on forecourt of petrol station - rude response of employee ‘close connected’ with duty of serving customer, escalated into physical abuse as a ‘seamless episode’ - was entrusted to deal with members of the public by Morrisons so should be responsible for his abuse of trust
Cf
Fletcher - C cyclist collided with employee of D (pedestrian crossing road without looking) - D had a shop and office on either side of road, tortfeasor was wearing company uniform, but happened 40 mins after shift and no evidence crossing road was linked to job - no close connection; impossible to know if crossing road was sufficiently connected to work
Examples of where employee found to be acting in course of employment and employer vicariously liable
- Lorry driver caused explosion by smoking cigarette whilst filling up lorry (doing something authorised [filling up] albeit in an unauthorised manner [while smoking])
- Boy injured whilst assisting milkman on his rounds - unauthorised mode of performing task he was employed to carry out; act was done ‘for employer’s business’
- Two employees injured in car crash, who were being paid for travelling within working hours, were acting in course of employmnent
