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Summary Employer's Liability Notes
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Employers’ LiabilityVicarious Liability:
Vicarious liability is a strict liability where one is liable for the acts of another without having any
fault of his own. Vicarious liability is a form of secondary liability, which is when someone is liable
for the acts of another, ie the employee commits a tort, but the employer is liable. This principle is not
confined to negligence but also extends to both intentional torts and statutory liability.
Waters v Commissioner of Police for the Metropolis [2000], an employer has a duty not to expose
employees to bullying by fellow employees.
Thompson v Smiths Shiprepairers [1983] Q.B, by early 1960s, the need to protect employees against
noise became generally known, and ear protectors became available. D provided P with ear protectors
in the early 1970s. P suffered hearing loss before 1963, but this became worse thereafter. The Court
held that once knowledge and protectors became available, D owed a duty of care, and was in breach
of that duty between 1963 and the time when he provided ear protection.
Hudson v Ridge Manufacturing Co [1957], it is well settled that it is the duty of employers to have a
reasonably safe system of work. As part of that general duty, it is their duty to employ reasonably
competent fellow-workmen. Thus, if an employee is incompetent and proves to be a source of danger,
it is the employer’s duty to remove that source of danger. An employee pulled a prank on a fellow
employee and injured him, and the court held that the employer was vicariously liable because he
failed to take proper steps to end the tortfeasor’s conduct.
Coxall v Goodyear Great Britain Ltd [2002] AC, a claimant with a predisposition to asthma was
employed at the defendant’s tyre factory. Even though the claimant was informed by doctors that he
ought not to work with paint, no action was taken by the employer and the claimant collapsed. The
Court of Appeal held that it was the employer’s duty to prevent the employee from dangerous work.
Therefore, the employer was liable for failing to remove the employee from work or providing him
with alternative work. He should have dismissed the employee for his own safety. Whether the
employer has a duty to remove the employee from work depends on the magnitude of the risk
involved.
Stapley v Gypsum Mines Ltd [1953] AC, two miners were working for the defendant’s company in
their gypsum mine. In approaching a roof, they found it to be dangerous, but the foreman could not fix
it, so the miners went back to work as normal. The Court of Appeal held that the deceased was
negligent in disobeying instructions that it could be regarded as an independent act unrelated to the
cause of the accident. The employers were also liable for negligence at common law. Therefore, the
deceased bore 80% reductions in his damages due to contributory negligence. The contributory
negligence test in employment is, “did the employee’s contribute to the accident or the state of things
brought about, that there was no sufficient separation in time, place, or circumstance to hold only the
employer solely liable for all the damage?”.
Justifications for vicarious liability:
Various claimants v Catholic Child Welfare Society [2012] UKSC, the policy objective is to ensure
that it is fair, just, and reasonable to impose liability on the defendant. This is for the court to
determine. Factors that help the court determine this are:
1) Deep pocket argument: the employer is more likely to have the means to compensate the
victim than the employee and can be expected to have insured against such liability.
Moreover, thanks to insurance, the risk of harm is spread through the risk-bearing community
rather than being placed entirely upon the vulnerable claimant. Vicarious liability is the most
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, convenient and effective way of ensuring that persons injured in the course of business do not
go uncompensated. If all workmen insured themselves against third party risks, this will
increase insurance costs. However, Cox v Ministry of Justice [2016] UKSC establishes that
employers insure themselves because they are liable, they are not liable because they insure
themselves.
2) The risk argument: the employer, by employing the employee to carry on the activity will
have created the risk of the tort committed by the employee. The employee’s activity is part
of the employer’s business activity. The tort will have been committed as a result of the
activity being taken by the employee on behalf of the employer.
3) The control argument: The employee will have been under a degree of control of the
employer. This test is not enough on its own. If it was, parents will be vicariously liable for
their children. Independent contractors can refuse orders, while employees cannot, as long as
they are lawful, safe, and sensible.
4) Justice arguments: The employer should take the risk of harm because he takes the benefit of
the employee’s activity. If the enterprise is able to escape liability by placing it on the
employee, then it will be tempted to take risks which are not socially efficient, because they
come at no cost.
5) Incentive and Deterrence Arguments: these are two sides of the same coin. Deterrence means
that imposing liability will deter the employer from disregarding the opportunity to increase
standards of safety for example through better procedures for selecting employees and for
their supervision. However, this does not explain why the liability is justified in cases where
all due care by the employer was taken. On the other hand, vicarious liability creates an
incentive for employers to take the opportunity to increase standards of safety beyond those
set by the standard of the reasonable person.
To establish vicarious liability, we need to prove that:
1) The tortfeasor was D’s employee, or the relationship is akin to employment. It is worth noting
that non-employees are not necessarily independent contractors.
2) That the employee committed a tort, and
3) That the tortfeasor committed a tort that is ‘incidental’ to employment or “closely connected”
to his employment.
The Health and Safety at Work Act 1974 imposes a number of general duties on the employer in
relation to the health safety and welfare of employees. But a breach of these duties gives rise to
criminal rather than civil liability.
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