Please enable JavaScript.
Coggle requires JavaScript to display documents.
Employers' Primary Liability & Employers' Vicarious Liability …
Employers' Primary Liability & Employers' Vicarious Liability
Employers' Primary Liability
Duty of care
McDermid v Nash Dredging- Employers' duty to an employee is personal and non-delegable. They can delegate performance of the duty, but the ultimate responsibility/liability lies with them.
Standard of Care
Wilsons & Clyde Coal Co Ltd v English- employers' should take reasonable precaution to ensure employee's safety, including a) safe and competent employees b) safe and proper plant equipment c) safe place of work/premises including safe access and way out d) safe systems of work with adequate supervision and instruction
Hudson v Ridge Manufacturing Company Ltd- 'select and employ competent staff' staff known to be in the habit of playing practical jokes- staff must know or ought to know about the risk a worker is imposing on fellow employees
Black v Fife Coal Ltd- incompetent person hired to do a job/supervision they are not capable of doing will be a breach
Qualcast v Haynes- 'safe and proper equipment' employer provided protective boots (nowadays they would also be forced to wear them)
Yorkshire Traction Co Ltd v Walter Searby- not liable for not providing screens to keep bus drivers safe from passengers as they had installed them on some buses but not all as they reflected light and the area was low risk
Wilson v Tyneside Cleaning- 'safe premises' less is expected when working on third party premises
Cook v Square- consider place, employer knowledge of premises, employee experience, control
General Cleaning Contractors v Christmas- employer should go to the site of work, plan and organise a safe system of doing the work to minimise risk (should be trained before)
Bux v Slough Metals- employer must also take reasonable steps to ensure safe systems are complied with
Clifford v Charles Challen & Son- failed to keep barier cream on site or to ensure use vs Woods v Durable Suites- cream on premises, shown when, why, how to use
Breach
Same as usual negligence (likelihood of harm, seriousness of harm , practicability of precaution etc)
Paris v Stepney Borough Coouncil- take into account employee's personal characteristics
Causation
Factual & Legal causation must be satisfied
McWilliams v Sir Williiam Arrol- but for test may not be satisfied if they can prove, even if safety equipment was provided, it would not be used (this is more difficult to establish in very dangerous work environments)
Remoteness
Remoteness of harm must be considered- most are physical harm but in some circum, mental and stress can be considered
Defences (General defences apply)
Consent is harder to prove (ICI v Shatwell- only in extreme circum, where there is full agreement, free from any pressure to assume risk of loss)
Contributory negligence is common where employees fail to take steps for their own safety (not using barrier cream, not using goggles provided)
Vicarious Liability
Liability of one party for a tort committed by another. D does not have to be at fault (strict liability)
Tort committed by A (this must first be established), Party A is an employee for party B (or relationship akin to employment) and tort was committed in course of party A's employment
Tort committed in course of employment
Must be 'closeness of connection' between tortious act and employment
Test: Lister v Hesley Hall- tort committed on employer's premises during work hours, whilst caring for the children and performing his duties.
Test further explored: Mohamud v WM Morrison Supermarkets- a) what functions/fields of activities were they entrusted with b) was there sufficient connection to make it fair, just and reasonable for employer to be held accountable. Where an act of events starts with being on the premises (answering questions of customer) and this is a seamless continue of events to off the premises the employer will be held responsible for all of it
Fletcher v Chancery Lane Supplies- cyclist collided with an employee crossing the road. They had an office and shop either sides of the road. They were crossing 40 minutes after shift ended and there was no evidence the claimant was still carrying out any activity to do with employment (employer not liable)
Pre closeness test case law to consider: Previous test a) expressly or impliedly authorised by the employer b) incidental to carrying our proper duties c) an unauthorised way of doing something authorised by the employer
Century Insurance v Northern Ireland Road Transport- smoking while filling up lorry with petrol. Employer held liable as filling up petrol part of employment
Harvey v RG O'Dell- driving five miles in lunch break was in course of employment, can expect employees to take lunch break
Rose v Plenty- employer liable for injury of boy milkman had help him deliver milk although they prohibited milkman doing so. Milkman was still in course of employment, just doing an authorised activity in unauthorised way
Smith v Stages- employer liable for car crash as travel expenses are paid and travel was in working hours
Joel v Morrison- if act expressly unauthorised, they will be on a 'frolic of their own' employer not liable
Beard v London General Omnibus- bus conductor ran over someone but he was not authorised to drive the bus and employer not liable
Storey v Ashton- detour from the delivery route to visit relatives- employer not liable
Twine v Bean Express Limited- driver took hitch hiker (prohibited) and injured them. Employer not liable. Different to Rose as Rose took the boy for help completing the job. This was unrelated to the job
S1(1) Civil Liability (Contribution) Act 1978employer can seek an indemnity from employee if 'just and equitable to do so' (rarely done)
Identify Employment Relationship
Employer/employee: contract of service Employer/independent contractor: contract for services (higher duty of care to employees)
Ready Mixed Concrete v Minister of Pensions- X drove a lorry which he hired and insured himself, no set hours, instructions etc, paid only on mileage and defined in contract as an independent contractor, however company had control over uniform and lorry colour. ' he who owns the assets and bears the risk is unlikely to be a servant' he was an independent contractor.
Employment relationship: a) remuneration in exchange for personal service and mutuality of obligations b) control c) all other contractual factors consistent with an employment relationship
a) payment for duties, worker must have no right to send someone else in their place, required to offer and receive work (zero hours contract therefore not employment)
c) tools/equipment, employee tax, is employee integrated in organisation, labels given to each party, holiday/sick pay
Relationship akin to employment (vicarious liability)
Barclays Bank plc v Various- where not carrying out their own independent business, is relationship analogous to make liability fair, just and reasonable to impose liability
Consider: if employer is more likely to have means for damages, if tort is committed as a result of someone doing duties on employer's behalf, if the tortfeasor activity is part of the business activity of the employer, if the employer allowed the tortfeasor to carry on the activity creating a risk, tortfeasor is under employer's control
Cox v Ministry of Justice- prison held liable for prisoner working for them- carrying out activity incidental to the job, paid for it and in doing so created the risk of the tort
Lending Employees
Where X lends an employee to Y, X will usually stay vicariously liable, hard to rebut this (Mersey Docks & Harbour Board v Coggins & Griffiths)
Look at: who is paying, who has control over employee, who provides equipment
X and Y can both be liable: Viasystems Ltd v thermal Transfer- both employers are entitled to and obliged to control the employee equally (rare)