#3768 - Employers' Liability - GDL Tort Law

REVISION NOTES - TORT

EMPLOYERS’ LIABILITY

BREACH OF STATUTORY DUTY

Tort claim?

PRESUMPTIONS = Lonrho - If Statute protects Ascertainable class (WILL allow claim) or Imposes a sanction (will NOT allow a claim)

- Wilson duties - If the Statutory duty coincides with/complements the Common Law

Duty

- Protected class Exactly within t Statutory wording = Titan?

Breach

1) If Mandatory language Imposes Strict liability

2) If Only qualifying words = C must prove D’s fault

Damage

- Scott - must be of Kind Intended to avoid

Causation

1) ‘But for’ test (Arrol) and Remoteness Rules = NO need to consider here

Defences

1) Volenti (consent)

2) Contributory Negligence

COMMON LAW NEGLIGENCE

Duty

- Wilsons & Clyde Coal Co v English - Employers have 4 Separate And Non-Delegable duties:

1. COMPETENT STAFF

2. ADEQUATE PLANT, EQUIPMENT & MACHINERY

3. SAFE SYSTEM OF WORK & SUPERVISION

4. SAFE WORKPLACE (Latimer v AEC)

Breach

- Standard of care

- Professional = higher standard of care

- Reasonable Person test = Blyth - this is a OBJECTIVE TEST (Glasgow)

- Inexperienced = NO ALLOWANCE FOR INEXPERIENCE (Nettleship)

- Child = Reasonable Child of Defendant’s Age (Mullin)

- Meet relevant Standard of Care? - Factors

• Cost & Practicality - Latimer v AEC

• Risk of Harm - Bolton v Stone

• Public Interest - Watt v Hertfordshire

• Sudden Incapacity - Waugh

• Res Ipsa Loquitor - liable even if absence of evidential blame - Scott v London & St Katherine Docks

• State of Knowledge at the time of the event only - Roe

Causation

- ONLY established if ALL 3 elements are satisfied:

1. FACTUAL CAUSATION

- MATERIALLY CONTRIBUTED to HARM (Bonnington), ii) MATERIALLY CONTRIBUTED to RISK of Harm (McGhee)

2) NEW INTERVENING ACT

- Unforseeable / Reckless/ Instinctive response acts will NOT break Causation (Scott v Shepherd) / Negligent Medical Treatment will NOT usually break Causation (Rahman) / Event

3) LEGAL CAUSATION =

• Wagon Mound = REMOTENESS RULE - only if a reasonable man could have foreseen damage

• Robinson v Post Office = EGG-SHELL SKULL RULE - take victim as you find them

Defences

1) Volenti (consent)

2) Contributory Negligence

3) VICARIOUS LIABILITY

EMPLOYEE > INDEPENDENT CONTRACTOR

- Employee = Supplied with equipment / Has tax & benefit provision / Integrated within the business / Regular wage / provide services for the Employer

- Independent Contractor = provides Services for lots of people/ supplies Own tools and equipment/ Lacks any tax or benefit provision/ NO Interest i employer’s business / Determines own hours of work

- Ready Mixed Concrete v Minister of Pensions = Test for Employee:

1) Control of Another

2) Remuneration

3) other Provisions of contract

COURSE OF EMPLOYMENT?

- Salmond definition - employer is liable for:

- Poland - wrongful ACTS it has authorised

- Wrongful and unauthorised MODES of carrying out authorised acts (Century Insurance)

1) FROLIC cases (e.g. where employee deviates from a driving route and thus acts outside of course of employment)

2) INTENTIONAL Torts

3) Torts EXPRESSLY PRHOBITED by employer

Employer’s INDEMNITY

- Lister - employers can claim an Indemnity (Full loss) from the Employee