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Unit 5 - Employers' Liability + Vicarious Liability
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Notes for unit 5 of the University of Law's PgDL Conversion Course. This unit covers employers' liability and vicarious liability.
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Unit 4 - Remedies
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Unit 2 - Causation + Defences
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Unit 1 - Introduction + Duty + Breach
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TORT LAW5 – Employers’ Liability
Tort c6
Employers’ Liability (Compulsory Insurance) Act 1969; requires majority of employers to take out insurance
against claims by employees injured at work
Two potential areas of liability for employer:
- liability in negligence -> breach of personal duty employer owes to every employee
- vicarious liability -> tort employee committed in course of employment
Also statutory health & safety regulations under Health and Safety at Work etc Act 1974
Negligence: Employer’s Common Law Duty
These duties are owed only to employees
- not independent contractors; company, partnership or individual in business on its own account (e.g. hiring
decorator to paint house)
- Ready Mixed Concrete; ‘multiple test’ to determine whether employee? (??)
General duty: for employer to take reasonable care for employee safety while at work
Further defined by case law:
Wilsons & Clyde Coal Co Ltd v English [1937]; defines employer common law duty as three separate duties;
To take reasonable steps to provide:
(1) competent staff
(2) adequate material (i.e. plant, equipment and machinery)
(3) proper system of work and supervision
Latimer v AEC Ltd [1953]; added fourth duty;
To take reasonable steps to provide:
(4) safe place of work
Duties are ‘personal to the employer’; cannot escape liability for negligent performance of duties by saying
delegated performance to someone else (independent contractor/another employee) whom it reasonably
believed competent to perform it
- non-delegable duty; McDermid v Nash Dredging [1987]
Close personal relationship based on mutual trust & confidence -> strict liability
- employee does not have to identify who to blame for accident, just that given event proves employer
breached personal common law duty
1) Competent Staff
Employer owes employee duty to provide employee with competent fellow workers (even acting outside
course of employment)
- injured employee may also often claim against employer through vicarious liability
Authority: Hudson v Ridge Manufacturing Co Ltd [1957]; claimant injured at work via prank from fellow
workman; claimed damages for personal injuries against employers, breach of duty at common law to take care
for safety of workmen
- claimant succeeded; important factor was that employer knew risk workman was posing to fellow staff
o duty of care would not have arisen if first time played prank
, TORT LAW
5 – Employers’ Liability
Tort c6
Duty arises where employer knows/ought to know about risk particular worker is posing to fellow workers
- not merely fact that worker is incompetent
HofL confirmed: Waters v Commissioner of Police for the Metropolis [2002]
- also confirmed risk posed by worker could be psychological as well as physical harm
o relates to bulling in the workplace
Employers must consider:
- selection of staff
- provision of training to ensure staff equipped to do job
- provision of supervision as necessary
- dismissal of employees who continue to pose risk to fellow staff despite adequate training
➔ otherwise may have staff who are not competent
o would know/ought reasonably to know about incompetence
2) Adequate Material
Interpreted widely by courts – usually referred to as duty to provide adequate plant & equipment
Relevant where:
- employer does provide plant/equipment to employees but inadequate in some way
o ‘equipment’ – anything provided by employer for purposes of its business
- employer does not supply all plant/equipment needed for job
o overlaps with duty to provide safe system of work
Equipment may be inadequate due to inherent defects:
Davie v New Merton Mills [1958]; employer not negligent in purchasing tools; one tool proved defective &
employee injured
- HofL: employer not in breach & not liable
Parliament acted to reverse Davie decision:
Employer’s Liability (Defective Equipment) Act 1969; aims to save employee potential difficulty of identifying &
suing manufacturer of defective equipment supplied to employer
- can simply sue employer for breach of duty to provide adequate plant & equipment
o s.1(1): ‘the injury shall be deemed to be also attributable to negligence on the part of the employer’
- employer can now sue own supplier in contract; moved problem of chasing to employer from employee
Injured employee must establish:
(1) Fault on the part of the third party
o usually equipment manufacturer, but could be supplier
(2) Causation
o it was fault of third party that caused employee injury
3) Safe System of Work
Widest & most frequently invoked branch of duty
- includes physical layout of job, sequence in which work is carried out, provision of training, warnings,
notices, safety equipment & issue of special instructions
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