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Summary Employer Liability / Vicarious Liability
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Summary notes on employer liability / vicarious liability for the torts of employees, within the area of tort law / the law of obligations
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Employer’s LiabilityDuties of employer to employee:
Common law duties – negligence; but also stricter – non-delegable duties
Statutory duties – vary from negligence-like duty of care duties to strict, to absolute duties
Vicarious liability for the torts of one employee to another employee
Duty to insure (to cover liability for personal injury and disease of employees, arising out of
employment) covered under Employers’ Liability (Compulsory Insurance) Act 1969 which
aims to insure that liabilities are met
Overview of trends:
General trend of last 2 centuries – greater strictness
Cooperation of courts with Parliament: tort of breach of statutory duty
Sudden reversal in 2013 – s69 Enterprise and Regulatory Reform Act: no longer a civil
remedy for breach of most strict statutory health and safety duties
History: Common employment (the low point and cause of innovation):
Doctrine of common employment – Priestly v Fowler
Exception to vicarious liability where a tort is committed by one servant towards another
No liability to employee where would have been liability to ‘a stranger’ – employees had less
protection than others
Not reversed until 1948 but many principles of law developed to ‘work around’ the doctrine
Courts active in avoiding the court-created barrier to tort actions by employees
Legislatures were content with these evasions
Workmen’s Compensation was seen as second best despite not needing a fault element, and
was abolished in 1948 as a move to an expanded welfare state
History: Other 19th Century limitations:
Ready application of volenti defence – ordinary risks of employment
Woodley v Metropolitan and District Railway; Thomas v Quatermain
Change in courts’ attitude soon came: Real consent rather than just knowledge of risk,
specific consent to thing that created danger needed for volenti defence (Smith v Charles
Baker)
The Rise of Liability:
Torts of employees with managerial/supervisory role not covered by doctrine
Employers’ Liability Insurance created around same time as Act
Discovery of non-delegable duties, personal to employees: these are personal, strict duties
not vicarious negligence liabilities
Smith v Baker
Williams & Clyde Coal v English
An example of non-delegable duties: Smith v Farmers’ Union Mutual Insurance
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