Employers' Primary Liability and Vicarious Liability Flashcards
What duty of care do employers owe their employees?
Rather than relying on the basic formulation that a duty to take ‘reasonable care’ is owed, we can look at how the courts have actually specified what is encompassed in the duty owed by an
employer to their employees.
Key case: Wilsons and Clyde Coal Co Ltd v English [1938] AC 57
In this case the House of Lords held that the employer’s duty to take reasonable precaution to ensure an employee’s safety included obligations to provide:
(a) Safe and competent employees;
(b) Safe and proper plant and equipment;
(c) Safe place of work/premises, including safe access and way out; and
(d) Safe systems of work, with adequate supervision and instruction.
What is clear is that there is only one single duty, namely to take reasonable precaution to ensure an employee’s safety while at work.
What amounts to safe and competent fellow employees?
An employer has a duty to select and employ competent staff.
Key case: Hudson v Ridge Manufacturing Company Ltd [1957] 2 QB 348
In Hudson v Ridge Manufacturing Company Ltd [1957] 2 QB 348 the claimant succeeded in a claim against his employer who was in breach for employing someone known to be in the habit of playing practical jokes on fellow employees. The employee who performed the prank had been carrying out pranks for four years and had been told off repeatedly by the foreman. They should
have been dismissed or re-deployed. Note that the employer must know, or ought to know, about the risk a worker is imposing to other employees.
If an incompetent person is employed or required to do a job (including supervision) that they are not capable of doing, then there will be a breach (Black v Fife Coal Ltd [1912] AC 149).
Note that where one employee injures a fellow employee then, in addition to a possible action against the employer for breach of this duty, there may also be the possibility of:
(a) An action against the employee who caused the harm (though, financially, this would almost certainly be a waste of time); and
(b) The employer being vicariously liable.
The claim against the employee who caused the harm involves different principles of law which are not addressed in this element.
What amounts to safe and proper equipment?
An employer owes an employee a duty to provide and maintain safe machinery, plant and equipment (including any necessary safety features and protective clothing).
Key case: Qualcast v Haynes [1959] AC 743
In Qualcast v Haynes [1959] AC 743 the employer discharged its duty by providing protective boots against the danger of splashes of molten metal (although this case would probably be decided differently today given statutory provisions relating to the provision of protective equipment, and the courts might now decide that the employer should have insisted the employee wear the boots).
Key case: Yorkshire Traction Co Ltd v Walter Searby [2003] EWCA Civ 1856
In Yorkshire Traction Co Ltd v Walter Searby [2003] EWCA Civ 1856 the claimant bus driver was stabbed by a passenger and claimed that the bus company negligently failed to use protective screens between drivers and passengers. The defendant bus company argued that they had introduced the screens on some buses, but that drivers had objected to them because the screens
reflected light at night and were therefore dangerous. It was also argued that the risk of assault in the area from passengers was very low. The court held that, balancing these factors against each other, the bus company was not negligent in failing to put up the screens in all buses.
What amounts to a safe place of work?
The employer has a duty to take reasonable care to ensure that the premises the employee works in are safe. Many employees will need to do some/all of their work in premises which are not owned/occupied by the employer. The employer’s duty extends to these ‘third party’ premises too.
Key case: Wilson v Tyneside Cleaning Co [1958] 2 QB 110
In Wilson v Tyneside Cleaning Co [1958] 2 QB 110, a window cleaning company owed a duty to take reasonable steps to ensure that all the locations where the window cleaners cleaned windows were safe. However, when it comes to considering whether the employer has breached this duty, what is expected of the employer in relation to third party premises is generally less than in relation to the employer’s own premises. The court considers what is reasonable in the circumstances, including place of work, nature of building, experience of employee, nature of work, degree of control exercised by employer and employer’s knowledge of premises (Cook v Square [1992] ICR 262).
What amounts to a safe system of work?
The duty to provide a safe system of work is the widest facet of the employer’s duty, and
therefore, the most frequently argued. It includes, amongst others, the physical layout of the job, the setting of the stage, the sequence in which the work is to be carried out, the provision of warnings, notices, training, supervision and the issues of special instruction.
Key case: General Cleaning Contractors Ltd v Christmas [1953] AC 180
In General Cleaning Contractors Ltd v Christmas [1953] AC 180 window cleaners working for the defendant, had developed a method of climbing onto the windowsills and holding onto the window frames while cleaning windows, instead of using ladders. Mr Christmas (a window cleaner) trapped his fingers in a sash window, let go and fell to the ground, suffering injury. He had not received any instructions, warnings or training in relation to sash windows. The employer was in breach. Employers were under a duty to go to the site of work, assess the risks, and plan and organise a safe system for doing the work so as to minimise the risk of injury. The provision
of training, wedges or some other system to prevent the window frames from slipping should have been employed to make the job reasonably safe. It is not enough to simply devise a safe system; the employer must take reasonable steps to ensure it is complied with.
Key case: Bux v Slough Metals [1974] 1 Lloyd’s Rep 155
In Bux v Slough Metals [1974] 1 Lloyd’s Rep 155 the claimant worker was splashed with molten metal, losing sight in one eye. His employer had complied with the statutory duty to provide safety goggles (ie the duty to provide safety equipment), but the court held that the duty at common law went further than this, requiring the employer to encourage or insist on the wearing
of the goggles. This can be seen as part of providing and implementing a safe system of work.
Whether instruction, persuasion or insistence should be used in relation to protective equipment depends on the facts of the case, in particular, the nature and degree of the risk of serious harm that could result if it is not worn. Where employees object or refuse to use safety equipment, an employer may not be negligent for failing to enforce the use of that safety equipment.
The following cases concerned whether the employer took proper precautions to ensure the use of ‘barrier cream’ to prevent the contraction of dermatitis through contact with synthetic glue. The cases help to explain the principle of safe system of work.
Key case: Clifford v Charles Challen and Son Ltd [1951] 1 KB 495
The employer failed to keep protective barrier cream in the workshops where the claimant worked. Barrier cream was available at a store owned by the defendant employer and the employee’s were ‘free’ to ‘fetch it from the store if they wished’. However, the foreman also discouraged the
use of barrier cream stating “he did not have great belief” in its effectiveness. Employer was negligent for failing to provide the cream in the workshop itself and for not ensuring the foreman
encouraged its use.
Key case: Woods v Durable Suites Ltd [1953] 1 WLR 857
Barrier cream was available on the premises; foreman had made known to the claimant that he should use the cream; and claimant was provided with instructions on when/how/why to use the cream. Employer not negligent.
What is a breach under Employer’s Primary Liability?
The duty on the employer is to take reasonable care (Latimer v AEC [1953] AC 643). It is not an absolute duty. Only a reasonable level of precaution need be taken ie an objective test is used,
based on the reasonable employer.
An employer should take into account an employee’s personal characteristics. For example, in Paris v Stepney Borough Council [1951] AC 367, the employer knew that the claimant had only one good eye and therefore should have taken extra precautions in relation to his safety. Despite this, no protective goggles were provided, and he became blind when a piece of metal went into his good eye. The House of Lords held that the defendant was liable. Although the risk of injury was small, the consequences of the injury were significant. They should, therefore, have taken greater
care to ensure he wore protective goggles than they might do with other employees who had sight in both eyes.
How is causation proved under Employer’s Primary Liability?
As with other negligence actions, it is necessary to establish both factual and legal causation. A common situation where factual causation is relevant concerns the provision of safety equipment.
If the employer fails to provide safety equipment, causation may not be satisfied if they can show that, even if it had been provided, the employee would not have used it. As such the ‘but for’ test is invoked (McWilliams v Sir William Arrol [1962] 1 WLR 295). Of course, in some situations mere
provision of equipment may not be enough to satisfy the duty. In more dangerous working environments it may be necessary to give specific instruction about safety equipment or even to enforce its use. If this is the case, arguments based around novus actus interveniens are more difficult to establish.
What is remote under Employer’s Primary Liability?
As in all negligence cases, the remoteness of harm must be considered. Though most cases involve physical injury, the courts have recognised mental harm such as stress may be recoverable in some cases.
What defences are available under Employer’s Primary Liability?
The usual general defences apply.
In relation to consent, if an employee consents to the risk then his employer may have a good defence. However, judges are very sceptical of this defence in the employment context (Bowater v
Rowley Regis Corporation [1944] KB 476) 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’ (ICI Ltd v Shatwell [1965] AC 656 per Lord Pearce).
In relation to contributory negligence, this partial defence frequently succeeds in an employment context where there is evidence that the claimant employee has failed to take reasonable care of
their own safety and this failure contributes to the loss suffered. An example is Bux in which the claimant was held 40% to blame for his injuries when he failed to wear safety goggles provided by his employer. Another example is Clifford in which the claimant failed to use barrier cream that
could have helped avoid him contracting dermatitis – his damages were reduced by 50%.
What is employers’ vicarious liability?
Vicarious liability refers to situations where one party is held liable for the torts of another. It arises because of a specific relationship between the parties. It is not a tort, but merely a determination of who is potentially liable.
Vicarious liability can be described as a form of secondary liability. While a defendant who is held liable to compensate a claimant is normally being held liable for their own wrongdoing (primary liability), a defendant who is vicariously liable is being held responsible for the wrongdoing of
another person. The defendant is being required to compensate the claimant for harm caused by that other person’s tortious actions.
There is no need to prove fault on the part of the defendant. The defendant who is vicariously liable incurs what is called ‘strict liability’ – liability without fault.
What is the close connection test?
Lord Steyn stated that the correct approach when determining this issue ‘is to concentrate on the relative closeness of the connection between the nature of the employment and the particular
tort‘. In this case, the warden’s torts were closely connected with his employment as it was because of his position that he was able to exploit the children, so it was held to be fair and just to hold the employer vicariously liable. The tort was committed on the employer’s premises during
working hours whilst he was caring for the children in performing his duties.
In Mohamud v WM Morrison Supermarkets plc [2016] UKSC 1 the Supreme Court provided further guidance on the close connection test and held it was two-fold:
(a) What functions or ‘fields of activities’ have been entrusted by the employer to the employee (what was the nature of their job)?
(b) Was there 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?
Can employers seek an indemnity?
In vicarious liability situations there are often joint tortfeasors, ie two parties, such as employer and employee, who are jointly liable. In reality, often the only party sued is the one in the best position financially to meet any judgment.
Under s 1(1) Civil Liability (Contribution) Act 1978 an employer may be entitled to seek an indemnity from their employee should they be forced to pay damages in respect of the employee’s tort. So although the victim claims against the employer, the employer may be able to claim something back from the employee. The court will allow such a claim if it is ‘just and equitable’ to do so.
Generally, litigation against an employer is conducted on the employer’s part by their insurers who will be paying in the event of liability being established. The right to a contribution from an employee is rarely exercised by insurers following their compliance with a ‘gentleman’s agreement’
not to do so in the absence of wilful misconduct or collusion.
How do you identify an employment relationship?
Multiple factors test
The court indicated that there is a three-part approach to take when considering whether there is an employment relationship:
(a) Remuneration in exchange for personal service and mutuality of obligations;
(b) Control; and
(c) All other contractual factors consistent with an employment relationship.
What constitutes renumeration?
This means the employee is being paid to fulfil their duties personally. If a worker has an unfettered right to send a substitute to do the work in their place (and the employer has no role in choosing that substitute), this cannot be an employment relationship.
Mutuality of obligations means the employer is required to provide work to the employee and the employee is required to do the work. In a genuine ‘zero hours contract’ where there is no mutuality of obligations, the worker is unlikely to be deemed an employee.
What amounts to control?
The court will consider the amount of control that the employer exercises over the worker. The more control that the employer has, the more likely it will be that the other party is an employee. Consider who has control over the tasks to be done, the way in which the tasks are performed (including who provides the tools) and when and where the work is to be completed.
