#3074 - Employers And Vicarious Liability - GDL Tort Law

Employers’ (Primary) Liability

- Definition: employee sues employer for breach of duty of care at work (c. must be employee, test: Ready Mixed Concrete).

Duty of Care

- Principal duty: to take reasonable care for employees’ safety (Wilsons & Clyde Coal Co v English).

• 1 principal duty – [Ld Wright]: ‘provision of competent staff of men, adequate materials + proper system/effective supervision’.

• 3 areas:

  • 1. duty to provide safe premises, plant, equipment + materials.

  • 2. duty to provide reasonably competent fellow employees.

  • 3. duty to provide safe system of work: inc. supervision + instruction.

• common law duty: employer cannot rely on compliance with statutory duty as defence (Bux v Slough Metals).

• implied term in employment contracts (Johnstone v Bloomsbury AHA).

  • cannot exclude (s2(1) UCTA 1977).

• compulsory insurance (Employers’ Liability (Compulsory Insurance) Act 1969 / Regulations 1998).

- Duty personal + non-delegable (McDermid v Nash Dredging) – can delegate responsibility but not liability.

• Mullaney v CC W Midlands Police: PC on stake-out unable to call back-up, beaten up CC liable: cannot delegate.

… 1. Duty to Provide Safe Premises, Plant, Materials, Equipment

- Safe premises (Smith v Baker & Sons: rock from crane – [Ld Herschell]): must take reasonable care to provide proper appliances, to maintain them in proper condition, carry out operations as to not subject those employed to unnecessary risk.

• arises from contract.

• ‘premises’: inc. defects in premises + hazardous activities taking place.

- Safe machinery, plant + equipment as employer ought reasonably to provide: dep. on circs.

• safety features/equipment/protective clothing:

  • Qualcast v Haynes: employer provided protective footwear, not worn NOT liable.

  • Davie v New Merton Board Mills Ltd: defective hammer, but reputable supplier NOT liable.

    • now reversed: Employers’ Liability (Defective Equipment) Act 1969.

  • Bux v Slough Metals Ltd: protective goggle provided, not worn LIABLE: duty to insist equipment used (modifying Qualcast).

  • Yorkshire Traction Co v Walter Searby: bus drivers not provided with screens, but had objected b/c of glare + risk low NOT liable.

• consider employees’ characteristics (Paris v Stepney BC: 1-eyed extra precautions needed).

• but exceptional circs. may be excluded (Mulcahy v MOD: duty does not extend to soldiers in battle).

• N.B. employees also have duty to use sensibly (O’Reilly v National Rail Appliances: hit bomb with hammer employer NOT liable).

• equipment: s1(3) Employers’ Liability (Def. Equip.) Act 1969: ‘any plant + machinery, vehicle, aircraft, clothing’ – broad.

  • Coltman v Bibby Tankers: ship = equipment.

  • Knowles v Liverpool CC: flagstone = equipment.

- Precautions need only be reasonable, not absolute (Latimer v AEC).

- Injury on 3^rd party premises: still duty, but standard lower (Wilson v Tyneside Cleaning Co: external premises lower standard; Cook v Square D Ltd: abroad – even lower.)

… 2. Duty to Provide Reasonably Competent Fellow Employees

(N.B. vicarious claims more common: esp. for incompetent staff.

• but primary employers’ liability too (+ employee himself liable, but often no money).

- Employer must take reasonable precautions: e.g. checks, probationary periods, dismissal of known risky employees.

• incompetent employee: d. liable if negligent in selection of staff (Black v Fife Coal Ltd: incompetent colliery manager employer liable).

• practical jokers: d. liable if (ought to be) aware of risk (i.e. habitual joker, not one-off).

  • Hudson v Ridge Manufacturing Co Ltd: c. tripped up by known prankster, employer aware liable.

  • Smith v Crossley Bros: unusual practical joke (debagging + gas) not liable: unforeseeable.

• bullying/harassment: d. liable if aware of risk.

  • Harrison v Lawrence Murphy: employee harassed by manager, partners aware 50k settlement.

  • Waters v MPC: WPC harassed for complaining of assault liable.

… 3. Duty to Provide Safe System of Work

- Broad: ‘physical layout of job’: inc. organisation, sequence, warnings/instructions, training, methods (Speed v Thomas Swift & Co, [Ld Greene]).

• must be devised + implemented (McDermid v Nash Dredging Co).

• training (General Cleaning v Christmas: window-cleaner balancing precariously d. liable: should have minimised risk through training – must take a/c of employee carelessness).

• instruction/supervision: dep. on kind of work + risks.

  • must update + review (Speed v Thomas Swift).

  • even if unusual work (Fraser v Winchester HA: c. sent on camping expedition with gas stove.)

• warnings: dep. on level of risk (Pape v Cumbria CC: c. using industrial cleaning chems, not warned d. liable; Fraser v Winchester HA: c. not told how to use gas stove liable).

• economic welfare: e.g. insurance for those going abroad (Crossley v Faithfull & Gould Holdings).

- Standard: employer must take REASONABLE CARE – not absolute.

• Clifford v Charles Challen & Son Ltd: d. failed to keep protective substances on premises + discouraged liable for dermatitis.

• Woods v Durable Suites: c. provided dermatitis cream + encouraged use, but c. did not use NOT ([Singleton LJ]: employer not required to ‘stand over workmen of age + experience every moment’).

• must take account of employee’s characteristics (Paris v Stepney BC) – BUT ONLY REASONABLE STEPS (Withers v Perry Chain Co: no work w/out chemicals available not reasonably avoidable injury).

Standard & Breach

- Standard: reasonably competent employee (Latimer v AEC: need not be perfect).

- Objective test: was reasonable care provided to employees IN ALL THE CIRCUMSTANCES?

• characteristics of employee (Paris v Stepney BC).

• reasonable precautions in circumstances (Latimer v AEC: sawdust on floor; Woods v Durable Suites: providing dermatitis cream; Yorkshire Traction Co v Walter Searby: no protective screen).

• N.B. employee must also take reasonable steps for safety (O’Reilly v Nat. Rail Appliances: hammered bomb).

Causation

- Factual causation: ‘but for’ test (McWillims v Sir William Arrol: c. would not have used equipment if provided not liable.)

• but: dangerous circs – must also give instructions (Bux v Slough Metals).

• multiple causes: material contribution/increase in risk? (McGhee v NCB).

- Legal causation: any NAI (only if unforeseeable).

• c. can be NAI if refuses to use safety equipment (Woods v Durable Suites) – but harder to prove if dangerous.

Defences

- Volenti:

• judges sceptical (Bowater v Rowley Regis Corp: ‘free from any constraint’; Smith v Charles Baker: rock from crane – consent not assumed from knowledge).

• only extreme circs. (ICI v Shatwell, [Ld Pearce]: ‘agreement to assume risk, free from any kind of pressure’).

- Contributory negligence (s1(1) Law Reform (Contributory Negligence) Act 1945).

• Bux v Slough Metals: c. did not use safety equipment 40% CN.

• Fraser v Winchester HA: c. negligent in lighting stove 33% CN.

• Sherlock v Chester CC: c. did not put guard on sawmill 40% CN.

Vicarious Liability

- Definition: mechanism by which 1 party held liable for tort of another.

• reasons:

  • 1. deep pockets: c. can sue someone with money (Employers’ Liability (Compulsory Insurance) Act 1969)/ Regulations 1998).

  • 2. control/supervision/responsibility.

  • 3. encourages higher standards.

• joint tortfeasors: often both employee + employer sued.

1. Tort Committed: establish direct claim first.

2. Relationship of vicarious liability: i.e. tort committed by an employee (not independent contractor).

- Multiple/Economic Reality Test (Ready Mixed Concrete v Minister of Pensions, [MacKenna J]).

• 1. remuneration

• 2. control.

• 3. other contractual factors: consistent with contract of service (as opposed to contract for services).

- Contractual factors + working conditions (Warner Holidays Ltd v SoS Social Services, [McNeil J]).

• 1. control (Yewens v Noakes: servant = subject to command as to manner in which works; Cassidy v MoH)

• 2. provision of equipment (Ready Mixed: driver hired + ran own lorry contractor).

• 3. salary/benefits.

• 4. tax/benefits status: but not conclusive (Airfix Footwear v Cope: homeworker, worked 5 days a week for 7 yrs, self-employed for tax purposes employee; Ferguson v John Dawson: c. agreed to contractor status for tax benefit, still had to obey employee).

• 5. sick pay.

• 6. bearing risk of profit/loss (Young & Woods Ltd v West: metal worker ‘contractor’ but no risk employee).

• 7. residual control.

• 8. control over working hours.

• 9. exclusivity (Argent v Minister of Social Security: teacher had flexible contract contractor).

• 10. labelling: BUT NOT CONCLUSIVE (Ferguson v John Dawson Ltd; cf. Massey v Crown Life Assurance: c. labelled self as contractor for tax benefit contractor – reflects genuine agreement).

• 11. mutuality of obligations (O’Kelly v Trusthouse Forte: casual waiter contractor; Carmichael v National Power plc: seasonal workers contractors).

• overall view: is c. in ‘business of his own’ (Hall v Lorimer: freelance vision mixer, reg. contracts sf-employed)

- Lending employees: which employer is vicariously liable?

• rebuttable presumption: original employer liable (Mersey Docks v Coggins & Griffiths).

  • factors: level of control, provision of equipment, specialism.

• rarely: dual liability possible (Viasystems Ltd v Thermal Transfer Ltd) – where both employers obliged to control.

- Independent contractors

• general rule: Personal Duty Theory: contractors responsible for selves (inc. insurance – Rowe v Herman).

• exceptions: where d. has PRIMARY liability to c.

  • 1. d. authorises/ratifies tort (Ellis v Sheffield Gas Consumers Co: E. engaged contractor to dig up street...