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Employer's Liability
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Tort lecture notes on employer's liability
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Tort LectureWeek 6: Employer’s Liability
An employer’s liability in tort typically arises in one of three ways:
1. An employer owes a non-delegable common law duty of care to their
employees and there may be personally liable for harm caused to their employees
2. An employer may also be liable in the tort of breach of statutory duty, which
enables a claimant in certain circumstances to recover compensation for losses caused
by the defendant’s failure to comply with a statutory obligation
3. An employer may also be liable vicariously for injuries caused by an employee’s tort
committed in the course of their employment
HISTORICAL BACKGROUND
➔ Although employees are now considered to be in a privileged position in respect of claiming
compensation for workplace injuries, this was not always the case.
➔ The Unholy Trinity:
1. The doctrine of ‘common employment’
➔ Doctrine prevented employees claiming against the employer in respect of a
fellow employee’s negligence
➔ Where an employee took an action against his employer for negligent injury in
the workplace, the employee ran the risk that the employer could simply claim
that he was no liable because:
◆ (i) the injury was caused by the actions of a fellow employee
◆ (ii) employer had taken reasonable care in choosing the employee in
question
➔ Doctrine abolished by the Law Reform (Personal Injuries) Act 1948
2. The defence of contributory negligence
3. The defence of volenti non fit injuria
➔ many of the rules on employer’s liability liability were developed to mitigate the harshness of
the common law as it developed during the time of industrialisation in early 19th century
➔ was extremely difficult to recover for injuries suffered at work
➔ doctrines protected employers and prevented virtually any action by employees for workplace
injury
➔ common employment
◆ an employer would not be vicariously liable for harm inflicted on workers by fellow
employees
◆ employer was only held liable if they had failed to ensure the competence of the
employee
➔ very high level of protection
AN EMPLOYER’S PERSONAL NON-DELEGABLE DUTY OF CARE
➔ Non-delegable duties are owed by employers to employees
➔ Wilson & Clyde Coal Co Ltd v English [1938] AC 57 (HL)
◆ Lord Wright
● requires an employer to see that reasonable care is taken for their
employee’s safety
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