employers' primary liability and vicarious liability Flashcards
(42 cards)
1
Q
In what situations might it be necessary to give specific instructions about safety equipment?
A
In more dangerous working environments, it may be necessary to give specific instruction about safety equipment or even to enforce its use.
2
Q
What is the primary liability of employers at common law?
A
The primary liability of employers at common law refers to the employer’s fault and breach of duty of care owed to an employee. It is distinct from vicarious (secondary) liability, where the employer is held responsible for the faults of their employees.
3
Q
What is the difference between employers’ primary liability and vicarious liability?
A
Employers’ primary liability refers to a situation where an employee sues their employer for breaching their duty of care. The claimant is always an employee of the defendant in this case. On the other hand, vicarious liability occurs when the claimant sues an employer (not necessarily their employer) for a tort committed by one of the employer’s employees. The claimant may or may not be an employee of the defendant employer, but what matters is that the person who committed the tort is an employee of the defendant employer.
4
Q
What factors are considered when determining if an employer is vicariously liable for the torts committed by an employee?
A
When determining if an employer is vicariously liable for the torts committed by an employee, factors such as the extent of deviation from the employment route, whether the travel was during working time, and the actual purpose of the journey are considered. The purpose and control exercised by the employer over the employee’s actions are also important factors.
5
Q
What does the duty of care owed by employers to employees entail?
A
The duty of care imposed on employers includes providing safe and competent employees, safe and proper plant and equipment, a safe place of work/premises, and safe systems of work with adequate supervision and instruction.
6
Q
How can an employer establish consent as a defence in an employment context?
A
In relation to consent, if an employee consents to the risk, then his employer may have a good defence. However, judges are very skeptical of this defence in the employment context and it can only be successfully invoked in extreme circumstances where ‘there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss’.
7
Q
Can a customer sue a supermarket in employers’ primary liability?
A
No, a customer cannot sue a supermarket in employers’ primary liability because they are not an employee of the supermarket. Employers’ primary liability claims involve employees suing their employers for breaching their duty of care.
8
Q
Why is the duty of care imposed on employers considered personal and non-delegable?
A
The duty of care imposed on employers is considered personal and non-delegable, meaning that regardless of who the employer uses to carry out tasks, the ultimate responsibility for the safety of the employee rests with the employer. While the employer can delegate the performance of the duty, they cannot delegate liability for its breach.
9
Q
What is the employer’s indemnity in vicarious liability situations?
A
In vicarious liability situations, an employer may be entitled to seek an indemnity from their employee if they are forced to pay damages in respect of the employee’s tort. This means that although the victim claims against the employer, the employer may be able to claim something back from the employee.
10
Q
What is an example of contributory negligence in an employment context?
A
An example of contributory negligence in an employment context is when a claimant employee fails to take reasonable care of their own safety, which contributes to the loss suffered. For example, if a claimant fails to wear safety goggles provided by their employer, they may be held partially to blame for their injuries.
11
Q
What is the test for determining if there is a relationship akin to employment for the purpose of establishing vicarious liability?
A
The test for determining if there is a relationship akin to employment for the purpose of establishing vicarious liability is whether the relationship is sufficiently analogous to employment to make it fair, just, and reasonable to impose vicarious liability. Factors such as the employer’s means to compensate the claimant, the activity being undertaken on the employer’s behalf, the integral nature of the activity to the employer’s business, the creation of the risk by the employer, and the degree of control over the tortfeasor are considered.
12
Q
What is the duty of care owed by employers to their employees?
A
The duty of care owed by employers to their employees is to take reasonable precautions to ensure their safety.
13
Q
What is the economic reality test used for in determining employment status?
A
The economic reality test is used to determine whether a worker is an employee for the purposes of tort law. It helps establish employment status, which is relevant in determining whether a claimant is able to bring a claim in employers’ primary liability. The test considers the economic relationship between the worker and the employer to determine if the worker should be classified as an employee.
14
Q
What is the difference between a contract of service and a contract for services?
A
A contract of service refers to an employer/employee relationship where services are provided personally by the employee. A contract for services refers to an independent contractor relationship where services are provided by an independent contractor, not in an employer/employee relationship.
15
Q
What are the elements required to establish vicarious liability?
A
To establish vicarious liability, three elements must be satisfied: a) A tort has been committed by the employee; b) The employee is in an employment relationship with the defendant or in a relationship akin to employment; c) The tort was committed in the course of the employee’s employment/quasi-employment.
16
Q
What is the close connection test in vicarious liability?
A
The close connection test is used to determine whether there is a close connection between the employee’s wrongful act (the tort) and their employment. It is important to establish this connection to prove that the tort was committed in the course of employment.
17
Q
What factors are considered when determining if someone is an employee for the purposes of tort law?
A
When determining if someone is an employee for the purposes of tort law, factors such as remuneration in exchange for personal service, mutuality of obligations, and control exercised by the employer over the worker are considered. Other factors include the provision of tools and equipment by the employer, tax/PAYE treatment, integration into the organization, and receiving benefits such as holiday pay and sick pay.
18
Q
What is the general rule regarding vicarious liability when an employer lends an employee to another employer?
A
The general rule is that the employer will remain vicariously liable when an employer lends an employee to another employer. It is difficult for the lending employer to rebut this presumption. However, in rare cases, both the lending employer and the hirer may be vicariously liable if they have an equal measure of control over the tortfeasor.
19
Q
What is an example of vicarious liability in an employment context?
A
An example of vicarious liability in an employment context is when an employer is held liable for the torts committed by their employee. For instance, if an employee sexually abuses a child while working at a children’s home, the employer may be held vicariously liable for the employee’s actions.
20
Q
What is the rebuttable presumption in determining vicarious liability?
A
The rebuttable presumption in determining vicarious liability is that the original employer will be held vicariously liable. However, this presumption can be rebutted. Dual liability, where both employers are held vicariously liable, is rare as it is uncommon for two employers to have the same level of control over an employee at the same time.
21
Q
Why is it necessary for employers to have insurance to cover claims related to their primary liability?
A
Why is it necessary for employers to have insurance to cover claims related to their primary liability?
22
Q
Which of the following is not part of the employer’s duty owed to its employees according to the traditional formulation in Wilsons and Clyde Coal Ltd v English?
Safe and proper plant and equipment.
Safe and competent employees.
Safe transport to and from a place of work.
Safe place of work/premises, including safe access and way out.
Safe systems of work, with adequate supervision and instruction.
A
Safe transport to and from a place of work.
23
Q
Which of the following is the best authority for the proposition that an employer owes a duty to provide a safe place of work even in relation to premises which are not the employer’s own premises?
Wilson v Tyneside Cleaning Co
Bux v Slough Metals
Wilsons and Clyde Coal Ltd v English
Latimer v AEC
A
Wilson v Tyneside Cleaning Co
24
Q
Lister v Hesley Hall established that a tort will be ‘in the course of employment’…
A
…if there is a sufficiently close connection between the employee’s tort and the role he / she is employed to do.
25
Tom works as a gym instructor at a gym called 'Fighting Fit'. His contract states that he is self-employed. He wears a Fighting Fit uniform and is paid a monthly salary for working set hours each week. If Tom is unable to work due to illness, he arranges a substitute gym instructor, selected from a bank of agency workers who are pre-approved by Fighting Fit. Which one of the following correctly describes whether Tom is an employee of Fighting Fit or not?
Tom is likely to be an employee because the arrangement satisfies the Ready Mixed Concrete v Minister of Pensions test.
Tom will not be an employee of Fighting Fit because his contract clearly states that he is self-employed.
Tom is likely to be an employee of Fighting Fit because the label given to the working arrangement in the contract is irrelevant and would be ignored by a court.
Tom is likely to be an employee because he is paid a monthly salary and pay is the most important indicative factor to determining employment status.
Tom will not be an employee of Fighting Fit because he is able to arrange for a substitute to work in his place.
Tom is likely to be an employee because the arrangement satisfies the Ready Mixed Concrete v Minister of Pensions test.
Tom is paid a salary and there is mutuality of obligations as he is required to work set hours. Fighting Fit have a significant degree of control over Tom and provide him with a uniform. The fact that the contract states he is self-employed (the 'label' given to the relationship) does not necessarily mean that he is, but it is a relevant consideration. Being able to send a substitute does suggest Tom is self-employed, but much less so where Tom can only select a substitute from a pre-approved bank of workers. Pay alone is relevant but not decisive.
26
A yoga instructor employed at a dance academy is asked to cover a Zumba class. The yoga instructor is not supposed to teach Zumba because of a pre-existing knee injury, which their employer knows about. Nevertheless, they agree feeling concerned they may lose their job if they refuse. Halfway through the class the yoga instructor’s knee gives way and their knee has to be operated on. When the yoga instructor returns to work, a colleague laughs at their injury. The yoga instructor gets verbally aggressive and kicks their colleagues’ leg. The yoga instructor has a history of violent mood swings.
The colleague could bring a claim against the yoga instructor in the tort of battery. What other claims arise from these set of facts?
The yoga instructor and the colleague can bring vicarious liability claims against the dance academy.
The yoga instructor and the colleague can both bring direct employers’ primary liability claims against the dance academy.
The yoga instructor can bring both a vicarious claim against the dance academy, and a direct claim in employers’ primary liability. The colleague can bring an employers’ primary liability claim against the dance academy.
The yoga instructor and the colleague can both bring vicarious liability and direct employers’ primary liability claims against the dance academy.
The yoga instructor can bring a claim in employers’ primary liability against the dance academy. The colleague can bring both a vicarious claim against the dance academy, and a direct claim in employers’ primary liability.
The yoga instructor can bring a claim in employers’ primary liability against the dance academy. The colleague can bring both a vicarious claim against the dance academy, and a direct claim in employers’ primary liability.
Correct: the yoga instructor is employed by the dance academy and can therefore bring a claim against them in employers’ primary liability for breach of duty (the duty to take reasonable precautions to ensure an employee’s safety, including safe systems of work) (Wilsons and Clyde Coal Co Ltd v English [1938] AC 57).
The colleague can bring a vicarious claim against the dance academy for the yoga instructors’ assault. A tort has been committed, by an employee and during the course of employment. In addition, the colleague can bring an employers’ primary liability claim against the dance academy. They are employed by the dance academy and can therefore bring a claim against them in employers’ primary liability for breach of duty (the duty to take reasonable precautions to ensure an employee’s safety, including the provision of safe and competent employees) (Wilsons and Clyde Coal Co Ltd v English [1938] AC 57).
While the other options might sound plausible, they are each incorrect.
The yoga instructor cannot bring a vicarious claim against the dance academy. It is the dance academy that has committed the tort and so the yoga instructor must sue them directly.
27
A crane driver negligently caused personal injury to a woman through their operating of the crane. The crane driver has a contract with the company they work for and this contract describes them as self-employed. The contract stipulates that their working hours are 9am to 6pm and that they must work for the company at least three days a week. They are paid at the end of the month for the number of hours they have worked. They use the company’s crane when working and must wear the company’s uniform. The woman wants to sue this company vicariously for the crane driver’s negligence.
Which of the following statements most accurately describes whether the woman can sue the company vicariously?
It is highly likely the crane driver is the company’s employee, meaning the woman can sue the company vicariously for the crane driver’s negligence. They are likely to be an employee because they have entered into a contract with the company.
It is unlikley that the crane driver is the company’s employee, meaning the woman cannot sue the company vicariously for the crane driver’s negligence. They are unlikely to be an employee because the contract states that the crane driver is self-employed.
It is highly likely the crane driver is the company’s employee, meaning the woman can sue the company vicariously for the crane driver’s negligence. The crane driver is likely to be an employee because the company exerts a high degree of control over the crane driver and the crane driver is paid in exchange for their service.
It is unlikely that the crane driver is the company’s employee, meaning the woman cannot sue the company vicariously for the crane driver’s negligence. They are unlikely to be an employee because the company only pays the crane driver for the number of hours worked rather than a fixed salary.
It is highly likely the crane driver is the company’s employee, meaning the woman can sue the company vicariously for the crane driver’s negligence. The crane driver is likely to be an employee because the company pays the crane driver regularly for the number of hours they work each month.
It is highly likely the crane driver is the company’s employee, meaning the woman can sue the company vicariously for the crane driver’s negligence. The crane driver is likely to be an employee because the company exerts a high degree of control over the crane driver and the crane driver is paid in exchange for their service.
Correct. Applying the multiple factors test from Ready Mixed Concrete v Minister of Pensions [1968] 2 QB it is likely that the crane driver is an employee of the company despite being described as self-employed. The crane driver receives remuneration in exchange for their personal service, and the company exert a high degree of control over them, requiring them to work for the company three days a week between 9-6 and to wear their uniform. We are not told of any contractual factors (except the label) that are inconsistent with employment, in fact, we are told that the crane driver must use the company’s tools at work. Overall, this suggests the crane driver is the company’s employee and as their employer, the company can be vicariously liable for their negligence committed during the course of employment.
While the other options might sound plausible, they are each incorrect.
It is correct that the fact the crane driver is paid regularly by the company, this is an indicator that the crane driver is their employee. However, there are additional indicators of the crane driver's employment status (as discussed above).
The label in a contract as to whether someone is employed or self-employed is taken into consideration when determining employment status, but it is not conclusive. All relevant contractual terms are considered to determine the true nature of someone’s employment status.
The first stage of the test from Ready Mixed focuses on remuneration in exchange for personal service – regular remuneration (not just a fixed salary) is evidence of being an employee. The crane driver must work for the company at least three days a week, so will be receiving regular pay in exchange for their personal service.
Just because the crane driver has a contract with the company, this does not mean that they are an employee. It will be the terms of the contract that determine this, subject to the test from Ready Mixed.
28
A construction employee is told by their employer that they must wear a safety hat at all times whilst on the construction site. One day they arrive for their shift but have forgotten to bring their safety hat. The site foreman gives the employee a safety hat, but the employee refuses to wear it. The site foreman allows the employee to work anyway. During the employee's shift they suffer a serious head injury which would have been avoided had they been wearing a safety hat.
Which of the following best explains whether or not the employer has breached its duty of care to the construction employee?
The employer is in breach of duty as it has failed to provide safety equipment and safe and competent employees.
The employer is not in breach of its duty as it employed a foreman to try and ensure that a safe system of work was operated.
The employer is not in breach of its duty as it told the construction employee to wear a safety hat at all times.
The employer is in breach of duty as it has failed to operate a safe system of work and to provide safe and competent employees.
The employer is not in breach of its duty as the construction employee refused to wear the safety hat provided.
The employer is in breach of duty as it has failed to operate a safe system of work and to provide safe and competent employees.
Correct. An employer owes a non-delegable duty of care to its employees both to provide a safe system of work and to operate that system. The foreman is acting on behalf of the company when they fail to operate the safe system in place. The employer can therefore be directly liable for the foreman’s failure to operate the safe system.The question of whether insistence on using safety equipment provided should be resorted to depends on the nature and risk of harm liable to occur if the equipment is not worn. Here the nature and risk of harm is serious and it is probable that insistence on wearing the safety hat was appropriate (Bux v Slough Metals [1974] 1 Lloyd’s Rep 155). In addition, given the foreman allowed the employee to work without a safety hat, the employer has arguably failed to provide safe and competent employees (Black v Fife Coal Ltd [1912] AC 149).
While the other options might sound plausible, they are each incorrect.
The employer has provided safety equipment. The issue is whether the foreman should have insisted on the construction employee wearing the safety hat.
There are circumstances in which it may be appropriate for an employer to insist that an employee wear/use safety equipment. It is often not enough to just provide and tell employees to use safety equipment. Not only must a safe system of work be provided, it must also be operated.
29
Company A lends their employee bus driver to Company B for the duration of one week. Company A trained the bus driver how to drive their buses. During this week Company A continues to pay the bus driver’s wages and retains the power of dismissal. However, the bus driver drives Company B’s bus which is a similar model to the buses used by Company A. The bus driver negligently opens the door too fast hititng a passenger waiting to get on the bus.
Which of the following statements is most accurate in relation to vicarious liability?
The injured passenger should sue both Company A and Company B vicariously for the bus driver’s negligence.
The injured passenger should sue the bus driver vicariously for his/her negligence.
The injured passenger cannot sue the bus driver, Company A or Company B vicariously for the bus driver’s negligence.
The injured passenger should sue Company B vicariously for the bus driver’s negligence.
The injured passenger should sue Company A vicariously for the bus driver’s negligence.
The injured passenger should sue both Company A and Company B vicariously for the bus driver’s negligence.
Correct. This seems to be a rare occasion where there is dual liability. In Mersey Docks and Harbour Board v Coggins and Griffiths [1947] AC 1 the House of Lords stated that, as a general rule, there was a rebuttable presumption that the original employer would remain vicariously liable. However, in Viasystems Ltd v Thermal Transfer Ltd and Others [2005] EWCA Civ 1151 the court found that, in certain circumstances, it is possible for two parties to be vicariously liable for the actions of the same, negligent employee. Dual liability might occur where an employee is lent to another employer and both employers are entitled, and obliged, to control the employee’s actions so as to prevent the negligent act. This seems to be the case here – the duration of the lending was relatively short, Company A trained the bus driver to drive, they continued to pay the bus driver’s wages and retained the power of dismissal. However, the bus driver was driving Company B’s bus at time of the negligence and Company B had a responsibility to make sure the bus driver was a competent driver before allowing the bus driver to drive one of their buses.
While the other options might sound plausible, they are each incorrect.
The explanation above should explain why the other options are incorrect. The injured passenger would not be suing the bus driver vicariously. The bus driver committed the negligence so the injured passenger can sue him/her directly in the tort of negligence.
30
A supply music teacher (‘the Teacher’) is sent by their agency, to work at a private school for one week. The Teacher is paid by their agency. The school stipulates that the Teacher must arrive at the school before 9am every weekday. They are free to work elsewhere at the weekends. While the Teacher is setting up the school stage for a music concert, they accidentally drop a music stand on the foot of one of the pupils. The pupil suffers swelling and bruising to their foot.
Which of the following statements is most accurate?
The pupil can bring a claim against the Teacher in negligence and the school in employers’ primary liability as they have failed to provide the pupil with competent staff.
The pupil can bring a claim against the Teacher in negligence and against the agency vicariously.
The pupil can bring a claim against the Teacher directly in negligence and vicariously against the school.
The pupil can bring a claim against the Teacher directly in negligence and vicariously.
The pupil can only bring a vicarious claim against the school if they can establish that the Teacher is an employee of the school.
The pupil can bring a claim against the Teacher directly in negligence and vicariously against the school.
Correct: The pupil can bring a claim vicariously against the school because even though the Teacher is unlikely to be deemed an employee of the school as they will not satisfy the test from Ready Mixed Concrete v Ministry of Pensions, they may be deemed to be in a relationship akin to employment with the school (Barclays Bank v Various Claimants). They committed the tort as a result of an activity (setting up the music stage) which they performed on behalf of the school and the school exercised a significant degree of control over what the Teacher did.
While the other answer options might sound plausible, they are each incorrect.
The pupil would not be able to bring a claim against the school in employers’ primary liability as they are not an employee of the school.
The pupil can bring a vicarious claim against the school if the Teacher is in a relationship akin to employment with the school (not just if the Teacher is an employee of the school).
The pupil cannot sue the agency vicariously. The Teacher is not the agency’s employee nor are they in a relationship akin to employment with the agency. Applying the economic reality test from Ready Mixed Concrete v Minister of Pensions, it is unlikely that the Teacher will be deemed to be the agency’s employee. The agency is unlikely to exercise the requisite day to day control over the Teacher to render them an employer. In addition, it is unlikely that the Teacher is in a relationship akin to employment with the agency given the five-stage test approved in Barclays Bank.
The pupil would not be bringing a claim against the Teacher vicariously. Vicarious liability is relevant when the claimant sues the defendant for a tort committed by someone else. Here, the Teacher has committed the tort so any claim against the Teacher will be direct.
31
Dual liability?
Where to employers have the same standard of control of D so both are vicariously liable.
32
Qs to ask for whether there is a safe system for work?
The Court went on to say that in deciding this threshold question the court should consider:
*
the nature and extent of the work done by the employee (eg was the workload obviously
too demanding in terms of type or amount; was there a high degree of absenteeism or
sickness in the relevant department, etc); and
*
signs from the employee themselves. The Court stated that an employer is 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.
33
Main defences for employer?
The main defences raised by an employer are likely to be consent (voluntary assumption of
risk) and contributory negligence.
34
Question 1
A solicitor’s client is an employee of a plastics company and works in its factory as an
operator of a machine that makes plastic cups. The plastics company has contracted with a
maintenance company for the maintenance of its plant and equipment.
The maintenance company had installed a fence to guard the dangerous moving parts on
the plastic cup machine. When the client first began to use the machine, they discovered
that, although there was a safety guard over the dangerous moving parts on the plastic
cup machine, the safety guard could easily be moved to one side. The client found that this
made their work on the machine much quicker. Due to this, the client developed the habit of
moving the safety guard to one side when they were working on the machine.
One day the client caught their hand in the machine and suffered severe injury,
necessitating the amputation of their hand.
Which of the following statements best explains whether the plastics company has
breached the duty of care that it owes to your client?
A No, because the plastics company has supplied safe plant and equipment as there
was a safety guard around the dangerous parts of the machine.
B No, because the plastics company took all reasonable care in selecting the
maintenance company to carry out the maintenance of its plant and equipment.
C No, because the client was at fault in moving the safety guard to one side.
D Yes, because the duty to provide a safe system of work is relevant as the client should
not have been able to move the safety guard and continue working on the machine.
E Yes, because the plastics company will automatically be found to be liable in
negligence as there is a regulation under the Health and Safety at Work etc Act 1974
that covers safety guards.
Answer
Option D is correct because the duty to provide a safe system of work is relevant and the
client should not have been able to move the safety guard and continue working on the
machine (the usual safeguard is that such machines should automatically switch off if a safety
guard is moved).
Option A is wrong because, the fact that the plastics company may (arguably) have supplied
safe plant and equipment will not, in itself, mean that it will not be found to have breached
other elements of the duty of care that it owes its employees.
Option B is wrong because the duty of care the plastics company owes its employees is
personal and non- delegable. While the task of maintaining the plant and equipment has
been contracted out to the maintenance company, this is irrelevant as it cannot contract out of
the duty of care it owes its employees.
Option C is wrong because while this may be relevant to the issue of the defence of
contributory negligence (see Chapter 7), it is not relevant to whether the employer has
breached its duty of care. Defences are only considered after the liability under the elements
of the relevant tort (here duty, breach and causation) has been established.
Option E is wrong because a breach of any regulation under the Health and Safety at Work
etc Act 1974 does not automatically lead to a finding that there has been a breach of a duty
of care in negligence. The breach of the regulation is, however, relevant to the breach of duty
question in negligence
35
Question 2
A solicitor is instructed by a supermarket in relation to a claim that a female employee is
bringing against it in negligence.
A male employee was employed to collect up shopping trolleys from the supermarket car
park. This man often decided to gather all the available shopping trolleys at once so as to
make his job quicker. This was in direct contravention of an instruction from the supermarket
that he should only gather and move five trolleys at a time. As the man was pushing a long
row of trolleys he lost control of them. They crashed into the female employee, causing a
nasty injury to her ankle.
The team leader in charge of the man’s work had previously noticed his practice of
collecting more than five trolleys at a time. The team leader told the man on three
occasions that he must collect only five trolleys at a time. However, the man ignored these
instructions. The team leader eventually gave up ordering the man not to collect more than
five trolleys at a time and did nothing more about it.
Which of the following statements best explains whether the supermarket would be
found to have breached the duty of care that it owes to the female employee?
A Yes, because the male employee is clearly incompetent.
B Yes, because the team leader is clearly incompetent.
C Yes if the female employee can show that the supermarket either knew that the team
leader was not properly supervising the male employee, or that it ought to have known.
D No, because the supermarket had put in place a safe system of work which was
implemented by employing a team leader to supervise its employees.
E No, because the team leader was responsible for the relevant aspect of the safe
system of work.
Answer
Option C is correct – the supermarket will have breached its duty to provide competent staff if
it either knew that the team leader was not properly supervising the male employee, or that it
ought to have known (as per Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348).
Options A and B are incorrect as, while the male employee and team leader are clearly
incompetent, their employer must either know or ought to know this fact before it will be found
to be in breach of its duty of care.
Option D is wrong because, while it may not have breached the duty to provide a safe system
of work, it may still be found to have breached the duty to provide competent staff.
Option E is incorrect because, while the task of implementing a safe system of work may have
been allocated to a supervisor, the responsibility for the duty of care is the employer’s and
cannot be delegated to their employees.
36
Question 3
A company has been notified of a claim for damages for occupational stress by a former
employee. The former employee was the company’s human resources (HR) manager. Prior
to their resignation, the former employee dealt with redundancy dismissals of several
staff. The former employee has been diagnosed with depression and alleges that this was
caused by the actions of the company.
The company has instructed its solicitor to defend the claim. The company’s instructions
are that they were aware that dealing with the redundancies was a very stressful task and
that a director therefore offered to help the former employee on a number of occasions.
However, the former employee told the director that they were happy to deal with
redundancies on their own.
Which of the following statements best explains whether the company would be
successful in arguing that it did not owe a duty of care to the former employee for
occupational stress?
A Yes, because there is an established duty of care between employers and their
employees.
B Yes, because there is an established duty of care between employers and their
employees. The relevant aspect of the duty is a safe system of work.
C Yes, injury to health through stress at work was reasonably foreseeable because the
former employee was carrying out a particularly stressful task.
D No, because the former employee was neither at risk of foreseeable physical injury nor
the witness to a shocking event involving someone they were in a close tie of love and
affection with.
E No, because injury to health through stress at work was not reasonably foreseeable
because the former employee was a HR manager and the former employee told the
director that they were happy to deal with redundancies on their own.
Answer
Option E is correct. Employers are (under the Hatton Guidelines) entitled to take what an
employee tells them at face value. The facts indicate that there was nothing to suggest that
injury to health through stress at work was reasonably foreseeable.
Option A is wrong because the established duty of care between employers and
their employees only covers physical injuries and not occupational stress, ie pure
psychological harm.
Option B is wrong for the same reason as A. (It is correct, however, that the duty to provide
a safe system of work can extend to an employee who has suffered stress as a result of
their work.)
Option C correctly states the ‘threshold question’ from Hatton determines whether an
employee would be owed a duty of care for occupational stress. However, option C is
incorrect because (under the Hatton Guidelines) an employer is generally entitled to assume
an employee was up to the normal pressures of the job. Dealing with redundancies is
(unfortunately) a normal part of a HR manager’s job.
Option D is wrong because it seeks to apply the primary and secondary victim tests for the
duty of care in cases of pure psychological harm (considered in Chapter 5). These tests do
not apply to claims for occupational stress.
37
Requirements for vicarious liability?
*
The worker must be an employee (or in a relationship akin to employment).
*
The employee must have committed a tort.
*
The employee’s tort must have been committed in the course of his employment.
38
How can an employer be vicariously liable for an intentional tort (e.g. fraud)?
The Supreme Court in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 provided
guidance on the Lister principle. First, the court must ask what function or field of activities
has been entrusted by the employer to the employee (ie what was the nature of their job).
Secondly, the court must decide whether there was a sufficient connection between the
position in which they were employed and their wrongful conduct to make it fair and just for
the employer to be held liable.
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Question 1
A solicitor’s client is an employee of a plastics company and worked in its factory as an
operator of a machine that makes plastic cups. The plastics company has contracted with a
maintenance company for the maintenance of its plant and equipment.
The maintenance company had installed a fence to guard the dangerous moving parts on
the plastic cup machine. When the client first began to use the machine, they discovered
that the safety guard could easily be moved to one side. The client developed the habit of
moving the safety guard to one side when they were working on the machine because they
could work more quickly.
Another employee, the supervisor in charge of the client’s work, had noticed this practice.
At first the supervisor told the client that they must only use the machine with the fence
in place. However, the client ignored this instruction and continued to move the fence.
Eventually, the supervisor gave up ordering the client to replace the fence when using the
machine.
One day the client caught their hand in the machine and suffered severe injury,
necessitating the amputation of their hand.
Which of the following statements best explains why the plastics company may be held
to be vicariously liable for the client’s injuries?
A Because the maintenance company was negligent in carrying out the task of
maintaining the equipment.
B Because the plastics company was negligent by breaching its duty to provide a safe
system of work.
C Because the supervisor breached the duty of care they owed the client. This breach
caused a loss to the client that was not too remote. This employee was therefore
negligent during the course of their employment.
D Because, while the supervisor breached the duty of care they owed the client, the
supervisor is unlikely to have the funds to compensate the client.
E Because the plastics company is insured to cover the client’s loss.
Answer
Option C is correct as it sets out all three requirements for vicarious liability, ie an employee
must commit a tort in the course of their employment.
Option A is wrong because the maintenance company is an independent contractor.
Employers can only be held vicariously liable for the acts of their employees.
Option B is wrong because it sets out one of the reasons why the plastics company may be
personally liable to the client in negligence. It does not explain why it may also be held to be
vicariously liable.
Option D is wrong because, while it does partially explain one element of the requirement
for vicarious liability (a tort must have been committed), it does not deal with all three of the
requirements. The fact that the supervisor may not have the funds to compensate the client is
irrelevant to the legal issue.
Option E is wrong for similar reasons to option D – while the availability of insurance may be
one of the general justifications for the principle of vicarious liability, it does not explain why
the plastics company may be held to be vicariously liable to this particular claimant.
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Question 2
A solicitor is instructed by an employee of a company which wishes to commence a claim
for damages for a personal injury they suffered while at work. The company supplies and
erects scaffolding for the construction of buildings.
The company’s Operations Manager carried out a training session with all employees
to remind them of the safe methods to be used when dismantling and lowering the
scaffolding to the ground.
However, after this training some employees still often dropped pieces of scaffolding down
to other employees while dismantling the scaffolding. They usually made sure the other
employees were looking up at them at the time. Another employee who was the client’s
supervisor was aware of this practice but ignored it even though it was contrary to the
Manager’s training. They did this because the practice saved time and, therefore, money.
The client’s injuries occurred when a fellow employee was dismantling scaffolding and
dropped a large pole from above and it struck the client heavily.
Which of the following statements best explains whether the scaffolding company will
be vicariously liable for the injury to the client?
A No, because the company trained their employees in the safe method of dismantling
and lowering the scaffolding and was not, therefore, at fault in any way.
B No, because the supervisor and the fellow employee were acting outside of the course
of their employment by acting contrary to their express instructions.
C Yes, because the actions of the supervisor and the fellow employee benefitted the
company’s business.
D Yes, because the negligent actions of the supervisor and the fellow employee
benefitted the company’s business.
E Yes, because the actions of the supervisor and the fellow employee were clearly
negligent.
Answer
Option D is correct as it sets out the full reason why the company would be vicariously liable
for the client’s injury. The supervisor and the fellow employee have both been negligent and,
while they were acting contrary to their express instructions, they were still acting in the course
of their employment because their negligent actions furthered their employer’s business (‘they
did this because the practice saved time and, therefore, money’).
Option A is wrong because the imposition of vicarious liability does not depend upon the
employer having been at fault in any way. It is irrelevant for vicarious liability whether the
company may or may not have breached their personal duty of care to the client by ensuring
training took place.
Option B is wrong because employees can still be held to be acting within the course of their
employment even if they act in a way that is contrary to their express instructions.
Options C and E are wrong because they only correctly state some elements of the
requirements for vicarious liability (option C, that an employee who acts contrary to their
express instructions will nevertheless be acting in the course of their employment if their
actions further the employer’s business, and option E, that the employee must have committed
a tort).
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Question 3
A solicitor is instructed by a supermarket in relation to a claim for damages for personal
injury that one of its customers is bringing against it.
One of the supermarket’s employees was employed to collect up shopping trolleys from the
supermarket car park. As the employee was pushing a long row of trolleys they lost control
of them. They crashed into a car owned by the customer’s daughter.
The customer of the supermarket witnessed these events. They went to the store supervisor
and reported what they had seen, making it clear that the accident was the employee’s
fault. The employee overheard this conversation and became very angry. As the customer
left the store the employee followed them out and attacked them in the car park. The
employee pushed the customer violently causing them to fall to the floor and then kicked
him, breaking the customer’s wrist.
Which of the following statements best explains whether the supermarket will be
vicariously liable for the injury to the customer?
A Yes, because the employee committed a tort during the course of their employment;
there was a sufficiently close connection between the employee’s job and the tort they
committed.
B Yes, because the employee committed a tort during the course of their employment;
there was a sufficiently close connection between the employee’s job and the tort they
committed to make it fair and just for the employer to be held liable for the employee’s
actions.
C No, because, while the employee committed the tort during the course of their
employment, the employee’s actions were intentional and employers can only be held
vicariously liable for the negligent acts of their employees.
D No, because the employee committed an intentional tort which did not benefit the
employer’s business and it would not be fair or just to impose liability on the employer.
E No, because, while the employee committed the tort during the course of their
employment, it would not be fair or just to hold the employer vicariously liable for an
act which did not benefit the employer’s business.
Answer
Option B is the correct answer as it sets out all the elements that are required before an
employer will be held vicariously liable for the intentional acts of their employees.
Option A is wrong as it omits the element of the ‘course of employment’ requirement that it
must be fair and just to impose liability on the employer.
Option C is wrong because an employer will be held liable for any torts committed by their
employees during the course of their employment. This includes intentional torts (in this case,
the tort of trespass to the person).
Option D is wrong because it is not a requirement that the tort must benefit the employer’s
business. Employers can be vicariously liable for employees’ intentional torts that only benefit
the employees as long as the tort is carried out during the course of their employment.
Option E is wrong for the same reason as option D. In addition, if the employee did act in the
course of their employment, then it will have been decided that it was fair and just to impose
liability on the employer as this is an element of the course of employment requirement.
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Question 28
A junior employee at a summer camp for young people has been convicted of an assault on a participant in the camp. The victim is suing the camp organisers for damages for psychological trauma on the basis that they are vicariously liable for the actions of the employee.
Which of the following best describes whether vicarious liability will apply?
A. Vicarious liability will exist if the employee’s act is sufficiently closely connected to his employment.
B. Vicarious liability cannot apply to criminal behaviour.
C. Vicarious liability will apply only if the assault occurred in working hours.
D. Vicarious liability can only apply to senior employees.
E. Vicarious liability will not apply because the employer obtained no benefit.
A - Vicarious liability will exist if the employee’s act is sufficiently closely connected to his employment.
