Employers' Liability Summarised Notes for the Tort Law module, LLB, at City, University of London - can of course be used for other universities as well! Should be used with the full bundle of notes!
Employers’ liability 2 types of claim:
1) ‘PRIMARY’ LIABILITY of the employer himself under a non-delegable personal duty – negligence
or carelessness on part of employer or someone in position of authority for safety of employees
2) ‘VICARIOUS LIABILITY’ for tort of one employee committed against another – strict liability
employer not personally involved, tort completed in course of employment by employee
PRIMARY LIABILITY (Non-delegable duties)
Employer under non-delegable duty under common law to employees to see that reasonable
care is taken of them safe premises + equipment, safe systems of work + competent staff
Employers also liable under statute e.g. Employers Liability (Defective Equipment) Act 1969
Employer under duty to protect employees against injury at work
Cannot be passed on by entrusting performance to others, if duty breached liability attach to D
not vicariously but as tortfeasor, may be breached with or without fault on anyone’s part
Cannot escape responsibility by delegating it to a contractor or employee
Honeywill & v Larkin [1934]: stated person undertaking ‘extra hazardous activity’ subject to non-
delegable duty held act of taking photograph in a theatre with magnesium powder amounted to
such duty, person hiring photographer liable where done without care
Woodland v Swimming Teachers’ Association [2013]: SC recognised new non-delegable duty on
part of schools towards pupils with activities outside their immediate control and away from school
premises, claimant suffered severe injuries during swimming lesson, conducted on premises not
controlled by school, provided by professional instructors who were independent contractors
claim against education authority, as authority neither employed swimming teacher nor premises,
held non-delegable duty owed expands liability of public authorities
Armes v Nottinghamshire Council [2016]: local authority put child in care with foster carers who
were abusive no duty, statutory duty performed not delegated so no non-delegable duty + not fair
just and reasonable to impose
Wilsons Coal v English [1938]: Employer ran coal mine, statute required to appoint health and safety
inspector, took reasonable care in appointing if can complete job well, accident at mine, due to
carelessness of person appointed, company argued not their fault as had to appoint someone and
took reasonable care, court held it is non-delegable personal duty, can delegate in practice but
cannot delegate legal responsibility employer can appoint someone else to be in charge of health
and safety and if reasonable care not taken then employer still liable
NATURE OF PRIMARY LIABILITY
Employee always owes duty of care of reasonable care so not need Caparo test
Duty owed to individual employees means employer need to take extra care of an employee
who is particularly vulnerable because their own particular characteristics
Not get confused with when employ e.g. hire taxi driver, not employ so not owe personal duty
of care for safety of taxi driver they owe you reasonable care in driving
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,Aspects of primary liability – competent staff, safe equipment, safe system of work + safe premises
COMPETENT STAFF
Employer has obligation to employ reasonably competent fellow employees – duty owed to each
Hudson v Ridge Manufacturing [1957]: claimant injured by fellow employee, worked for bridge
manufacturing, played practical jokes at work, one joke caused injury, jumped on claimants back and
fell, court found not competentheld employer liable as knew dangerous person in workplace and
did not do anything about it, did not sack him or discipline him breach
SAFE EQUIPMENT
Employer must provide safe + appropriate equipment + ensure properly maintained
Common law duty is supplemented by Employers Liability (Defective Equipment Act)
Employers’ Liability (Defective Equipment) Act 1969, s 1 – employer liable when a third party is at
fault for a defect in equipment supplied by employer in use of work if it causes an injury
manufacturer makes ineffective equipment, but still gives route to make employer liable
Use this act if can find a third party at fault e.g. a manufacturer of equipment
Paris v Stepney Borough Council [1951]
Employee worked in a garage for council and had 1 good eye, pair of flying metal went into good eye
and completely blinded held should have been provided safety goggles all employees should be
given reasonable care the more vulnerable an employee is, the more care that should be taken
SAFE SYSTEM OF WORK
Employer has to take reasonable care not overloading anyone with work, and system of work is not
unreasonably dangerous e.g. workplace stress claims
Walker v Northumberland Council [1995]
Social worker became stressed with overload in cases in child abuse, requested assistant after having
a mental break down, assistant only occasionally provided, suffered second breakdown and had to
retire issue recover loss of earnings held yes, employer owes a duty of care to their employees
to take reasonable steps to protect from foreseeable risks to mental health
Barber v Somerset Council [2004] (leading case for workplace stress claims)
Claimant teacher in school, restructuring of staffing of school, workload went up, took 3 weeks off
work from stress + depression, explained to manager, told to prioritise workload held won as
predictable, employer did not take reasonable steps to prevent breach because no change
Thompson v Smiths Ship repairers [1984]
Noise levels in ship repair yards, over long period of time 20years, claimant partly lost hearing due to
noise, not provided ear protectionheld breach breach, D argued most not provide protective
equipment court held as ear protection available at reasonable costs
SAFE PREMISES
An employer must take reasonable steps to see that the place of work is reasonably safe
Latimer v AEC [1953]: huge flood of factory, sawdust had been put down by company but claimant
still fell over held reasonable care taken for it to be reasonable safehad to be balanced against
cost of shutting down factory was not reasonable to expect to shut down factory
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, Breach of statutory duty
Allows claimants to be compensated for losses caused by D’s failure to comply with statutory
duty usually supplemented the common law
Not all statute gives rise to a civil claim in tort some explicitly say they do
Breach of duty D was in breach of duty
Damage claimant suffered damage statute intended to protect
Causation causal link between D’s breach of duty and claimant’s loss
DEFENCES – employer can limit or avoid liability
Consent (volenti non fit injuria)
Contributory negligence
VICARIOUS LIABILITY
NATURE OF VICARIOUS LIABILITY
Strict liability liability without fault
Secondary liability employee commits tort but employer liable liable for tort of another
Justifications: ‘deep pockets’ get good compensation from employers than employees (not have
much) + employer benefits from work done by employees so should compensate for injury +
gives incentive for opportunity to increase standards of safety
Employer liable for tort of their employee if tort sufficiently connected to employment
Now even short of employment relationship relationship as ‘akin to employment’ e.g. partner
Or agent where someone is vested with ‘authority’, enter legal relations on part of principal
Common relationships for vicarious liability
Employer + employee (or akin to employment)
Principle + agent ‘Akin to employment’= like an
Business partners employee, status of worker
Vehicle owners + delegated drivers close to that of an employee
(does not need to be paid etc)
REQUIREMENTS OF VICARIOUS LIABILITY
Tortfeasor was D’s employee (or akin to employment)
Tortfeasor committed a tort
Tortfeasor committed tort in course of employment
WHO IS AN EMPLOYEE?
Only liable for torts by employees NOT an independent contractor (unless sufficient control)
If cannot show employee, show ‘akin to employment’
Stevenson v McDonald [1952]: Lord Denning general definition of who is an employee= someone is
integrated in with an organisation and an independent contractor is someone who is working for an
organisation but is not integrated in it e.g. taxi driver is contractor, hire them, do work but not
employee but tied on one off basis (not integrated) whereas a chauffeur would be integrated as
work as on regular basis the more essential they are the more likely be an employee
Ferguson v Dawson [1976]: range of factors for integration, D company and worker labelled through
a contact as an independent contractor, but court see nature of relationship it is various factors
e.g. whether company deducts national insurance + income tax (if do= employee), if hiring party
provides equipment, if company can tell exactly how to do job more control likely an employee
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