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Exam (elaborations)

Tort Law - Employers’ Liability (Exam Plan)

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I scored 75% in Tort Law and received a Distinction (74%) overall in the GDL at the University of Law using these notes. These notes are written in the form of step-by-step exam plans. Compared to standard notes, this will save you lots of time. Most people will make notes during workshops, and ...

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Document information

  • July 20, 2023
  • 18
  • 2021/2022
  • Exam (elaborations)
  • Questions & answers

Subjects

  • tort law
  • tort
  • law
  • gdl
  • pgdl
  • negligence
  • vicarious liability
  • employers liability

Written for

  • GDL
  • GDL
  • GDL
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Tort Law - Employers’ Liability

N.B. for employee-employee cases, it doesn’t fall under the employer-employee
established duty (Wilsons), but say it may be novel and apply Caparo. Will likely
satisfy the Caparo criteria.

N.B. only mention statutory health and safety regulations if specifically asked to
do so in the question, or mentioned on the facts

[IGNORE UNLESS SPECIFIED] Statutory health and safety regulations

Since 1 October 2013, s.69 of the Enterprise and Regulatory Reform Act (ERRA) 2013
has made employers criminally liable for breaches of regulations relating to health and
safety under the Health and Safety at Work etc. Act (HSWA) 1974.

This means that breaches of regulations under the HSWA are not actionable in a civil
claim for breach of statutory duty (s.47 HSWA 1974, as amended by the ERRA 2013).
However, employees who have suffered damage due to their employer’s non-
compliance can still bring claims against their employers in negligence.

Identify possible breaches of HSWA on the facts, look for health and safety breaches.
These will be criminal breaches under the above statutory provisions, not actionable in
civil claims in negligence.

[EMPLOYER - EMPLOYEE. If anything else, e.g. employer - customer, use
Negligence plan] Common law negligence

N.B. USE THIS FOR ESTABLISHING IF TORT COMMITTED BY EMPLOYEE FOR
VICARIOUS LIABILITY, OR IF EMPLOYER MAY HAVE DIRECTLY COMMITTED
NEGLIGENCE THEMSELVES BY BREACHING EMPLOYER-EMPLOYEE
ESTABLISHED DUTY

[STEP 1] C v D - Common law negligence

[INSERT C] can consider suing [INSERT D] in the tort of negligence for [INSERT C’s
HARM CAUSED BY D’S ACT].

Negligence is defined as a breach by the defendant (D) of a legal duty of care owed to
the claimant (C) that results in actionable damage to C which is unintended by D.

[STEP 2] Duty of care?

,An employer owes a duty to an employee to take reasonable care of their safety while
at work via four non-delegable duties. Here, the relevant duty [INSERT EMPLOYER D]
owes to [INSERT EMPLOYEE C] is a duty to take reasonable steps to provide [INSERT
DUTY FROM BELOW + AUTHORITY] in relation to [INSERT SCENARIO].

The three established in Lord Wright’s judgement in Wilsons & Clyde Coal Co. v English
are duties to take reasonable steps to provide:

- Competent staff
- Adequate plant, equipment, and machinery
- A safe system of work and supervision

The fourth, added in Latimer v AEC, is a duty to take reasonable steps to provide:

- A safe place of work

Competent staff

This duty arises when an employer knows or ought to know of the risk posed by an
employee to other staff (Hudson v Ridge Manufacturing Co Ltd, confirmed by the House
of Lords in Waters v Commissioner of Police for the Metropolis).

- The risk posed by the worker may be one of psychological, as well as physical,
harm (Waters v Commissioner of Police for the Metropolis). This is relevant in
claims involving workplace bullying.

Adequate plant, equipment, and machinery

This duty is relevant in two situations:
- Where the employer provides plant/equipment which is inadequate in some way;
- Where the employer does not supply all the plant/equipment needed for the job.

- The Employer’s Liability (Defective Equipment) Act 1969 (s.1(1)) makes the
employer liable where a defect in its equipment is caused by a third party
(manufacturer/supplier).
- The employee can then sue the employer for breach of its duty to provide
adequate plant and equipment - ‘the injury shall be deemed to be also
attributable to negligence on the part of the employer’ (s.1(1)).
- If injured by this defect, the employee may sue their employer themselves,
provided they can establish:

, - Fault on the part of someone; and
- This fault caused the employee’s injury.

Safe system of work and supervision

An employer must devise a safe system of work, and take reasonable steps to ensure it
is complied with. It covers: the physical lay-out of the job, training, warnings, notices,
safety equipment, and special instructions.

- This duty extends to stress-induced harm at work (Walker v Northumberland
County Council, confirmed in Hatton v Sutherland).
- A duty arises if injury to health through stress at work is reasonably foreseeable
(Hatton, approved by the House of Lords in Barber v Somerset County Council).
The court will consider:
- The nature and extent of the work (e.g. heavy workload, high absenteeism
or sickness etc.); and
- Signs from the employee themselves (disregarding problems in their
personal life).

- In Melville v Home Office, even though a prison worker’s stress resulted from
witnessing traumatic episodes rather than from day-today work, psychiatric injury
was deemed foreseeable and gave rise to a duty of care under the Hatton
approach.
- In contrast, where stress-induced harm was not deemed to have occurred during
the course of work, Hatton was not applied and police officers who witnessed
traumatic episodes at work were not able to claim (White v Chief Constable of
South Yorkshire Police).

Safe place of work

This is a duty to provide a safe workplace. There is overlap with the statutory duty under
the Occupiers’ Act 1957, but the common law duty is more onerous as:
- It applies wherever employees are at work, not just at the premises of the
employer (General Cleaning Contractors v Christmas); and
- It cannot be delegated to a third party, (e.g. an independent contractor).




[STEP 3] Breach of duty of care

Is there a breach of duty?

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