Topic 5 - Employer's primary liability and vicarious liability

Question 1

What is employers’ primary liability?

Answer 1

Employers’ primary liability refers to the direct responsibility of employers for breaching their duty of care owed to employees in the context of negligence.

Question 2

How does primary liability differ from vicarious liability?

Answer 2

Primary liability involves the employer being at fault, while vicarious liability holds the employer responsible for the actions of employees without direct fault on their part.

Question 3

What is the significance of the Employers’ Liability (Compulsory Insurance) Act 1969?

Answer 3

It mandates that employers must have insurance to cover claims related to work-related injuries and ill-health.

Question 4

What characterizes the employer’s duty of care?

Answer 4

The employer’s duty of care is personal and non-delegable, meaning they cannot delegate liability for its breach.

Question 5

What are the obligations within an employer’s duty to ensure employee safety?

Answer 5

• Safe and competent employees
• Safe and proper plant and equipment
• Safe place of work/premises
• Safe systems of work

Question 6

What must an employer provide in terms of plant and equipment?

Answer 6

Safe machinery, plant, and equipment, including necessary safety features and protective clothing.

Question 7

In Wilson v Tyneside Cleaning Co [1958], what was the employer’s duty regarding third-party premises?

Answer 7

The employer must take reasonable steps to ensure safety at locations where employees work, including third-party premises.

Question 8

What does a safe system of work involve?

Answer 8

It includes the physical layout of the job, setting the stage, sequencing work, providing warnings, training, and supervision.

Question 9

What principle was illustrated in General Cleaning Contractors Ltd v Christmas [1953]?

Answer 9

The employer had a duty to ensure proper training and safety instructions to minimize risks of injury.

Question 10

What is the standard of care expected from an employer?

Answer 10

Employers must take reasonable care, evaluated through an objective test based on what a reasonable employer would do.

Question 11

What is the ‘but for’ test in causation?

Answer 11

It is used to determine if the harm would not have occurred ‘but for’ the employer’s breach of duty.

Question 12

What is the remoteness of harm in negligence cases?

Answer 12

It refers to the principle that only harm that is foreseeable as a result of the breach can be recovered.

Question 13

What is a common defense against claims of negligence in employment?

Answer 13

Contributory negligence, where the employee’s own lack of reasonable care contributes to their injury.

Question 14

True or False: An employer can delegate their liability for breach of duty.

Answer 14

False.

Question 15

Fill in the blank: The employer’s duty includes providing a _______ and proper plant and equipment.

Answer 15

safe

Question 16

What is the importance of the case Bux v Slough Metals [1974]?

Answer 16

It highlights that employers must not only provide safety equipment but also encourage its use.

Question 17

What must an employer consider regarding an employee’s personal characteristics?

Answer 17

Employers must take into account any specific risks related to an employee’s personal characteristics when ensuring safety.

Question 18

What is the role of judges regarding consent in employment-related negligence cases?

Answer 18

Judges are skeptical of the consent defense in employment contexts and require genuine agreement free from pressure.

Question 19

What does employers’ liability cover in relation to mental harm?

Answer 19

In some cases, mental harm such as stress may be recoverable.

Question 20

What is vicarious liability?

Answer 20

Vicarious liability refers to situations where one party is held liable for the torts of another due to a specific relationship between the parties.

Question 21

What type of liability is vicarious liability considered?

Answer 21

Secondary liability.

Question 22

What is strict liability?

Answer 22

Strict liability is where a party is liable despite the absence of any fault.

Question 23

What are the three elements required to establish vicarious liability?

Answer 23

• A tort has been committed by Party A.
• Party A is an employee of Party B or in a relationship akin to employment.
• The tort was committed in the course of Party A’s employment/quasi-employment.

Question 24

What types of torts can an employer be held vicariously liable for?

Answer 24

• Negligence
• Assault
• Battery
• False imprisonment
• Defamation

Question 25

What is the 'close connection' test in vicarious liability?

Answer 25

The test assesses whether there is a close connection between the employee's wrongful act and their employment.

Question 26

True or False: An employer is always liable for the wrongful acts of their employees.

Answer 26

False.

Question 27

What was the significance of the case Mohamud v WM Morrison Supermarkets plc [2016]?

Answer 27

It provided guidance on the close connection test and held that the employer could be liable for the employee's actions if there was a sufficient connection between the employee's role and wrongful conduct.

Question 28

Fill in the blank: A ________ is a contract under which services are provided in an employer/employee relationship.

Answer 28

contract of service

Question 29

Fill in the blank: A ________ is a contract under which services are provided by an independent contractor.

Answer 29

contract for services

Question 30

What is the implication of an employer's indemnity in vicarious liability situations?

Answer 30

An employer may seek an indemnity from their employee if they are forced to pay damages for the employee's tort.

Question 31

What does the Civil Liability (Contribution) Act 1978 enable an employer to do?

Answer 31

It allows an employer to seek an indemnity from their employee for damages paid in respect of the employee's tort.

Question 32

What is the distinction between a 'contract of service' and a 'contract for services'?

Answer 32

* Contract of service: employer/employee relationship. * Contract for services: independent contractor relationship.

Question 33

What was the traditional test before 2002 for determining if a tort was in the course of employment?

Answer 33

* Expressly or impliedly authorised by the employer. * Incidental to the carrying out of the employee's proper duties. * An unauthorized way of doing something authorised by the employer.

Question 34

True or False: The courts have historically held that if an employee's act was unauthorized, they were on a 'frolic of their own'.

Answer 34

True.

Question 35

What does the term 'joint tortfeasors' refer to?

Answer 35

Two parties, such as employer and employee, who are jointly liable.

Question 36

What factors may influence whether a tortfeasor's actions are considered to be in the course of employment?

Answer 36

* The extent of deviation from work duties. * Whether the action occurred during working hours. * The actual purpose of the journey.

Question 37

What is a key consideration in determining if an employee is acting within the course of employment when traveling?

Answer 37

Whether they are going about their employer's business at the material time.

Question 38

What is a 'contract for services'?

Answer 38

A contract under which services are provided by an independent contractor, not in an employer/employee relationship.

Question 39

Why does it matter whether someone is an employee in tort law?

Answer 39

There are two main reasons: * A body of case law explains the common law duty of care owed by employers to employees. * An employer can be vicariously liable for torts committed by an employee.

Question 40

What is the 'multiple factors' or 'economic reality' test?

Answer 40

A test used to identify an employment relationship based on various factors.

Question 41

What are the three parts to consider for an employment relationship?

Answer 41

1. Remuneration in exchange for personal service and mutuality of obligations 2. Control 3. All other contractual factors consistent with an employment relationship.

Question 42

What does 'mutuality of obligations' mean?

Answer 42

The employer is required to provide work to the employee, and the employee is required to do the work.

Question 43

What does the control factor in employment relationships refer to?

Answer 43

The amount of control the employer exercises over the worker's tasks, performance, and work conditions.

Question 44

List factors that point towards an employer/employee relationship.

Answer 44

* Tools and equipment provided by the employer * Tax/PAYE treatment as an employee * Employee integrated into the organization * Parties labeling the relationship as employment * Benefits such as holiday pay and sick pay.

Question 45

What does vicarious liability entail?

Answer 45

An employer can be held liable for torts committed by an employee under certain circumstances.

Question 46

What is the test for a relationship akin to employment?

Answer 46

Whether the relationship is sufficiently analogous to employment to impose vicarious liability.

Question 47

List criteria indicating a relationship is akin to employment.

Answer 47

* Employer has means to compensate the claimant * Tort committed during an activity on employer's behalf * Tortfeasor's activity part of employer's business * Employer created risk of the tort * Tortfeasor is under employer's control.

Question 48

What happens when an employer lends an employee to another employer?

Answer 48

The general rule is that the original employer remains vicariously liable.

Question 49

Can both the original and new employer be vicariously liable?

Answer 49

Yes, but it is rare and requires both employers to have control over the employee's actions.