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Tort Law MG
Employer's liability
| Question | Answer |
|---|---|
| Vicarious liability | The means by which an employer can be made to pay compensation to the victim when the negligent act was committed by the employee. |
| The court, in order to find the employer liable for the torts of his employees, must establish that | a) the person who committed the tort was, in fact, an employee, and/b) the tort was committed whilst the employee was in the course of his employment |
| Was the tortfeasor an employee? | courts will now apply the contract of services and contract for services test/as the “irreducible minimum” for the existence of an employment contract/followed by the Mutuality of Obligation Test |
| Short v J & W Henderson Ltd (1946) | The “hire and fire” test/4 indicators to be considered/(i) the employer’s power of selection as to who does the work/(ii) the payment of wages or other remuneration/ |
| (iii) the employer’s right to control the method of work/(iv) the employer’s right to suspend or dismiss | |
| Short v J & W Henderson Ltd (1946) | The "contract of service/contract for services" test/An employee is a person who/(i)agrees that for a wage s/he will provide his own work and skills to perform a service/ |
| (ii)agrees that in the performance of that service he will be subject to the other's control such as to make the other his employer/(iii)the other provisions of the contract are consistent with its being a contract of service | |
| Stevenson Jordan & Harrison v Macdonald & Evans [1952] | The business integration test/Under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business |
| /whereas, under a contract for services, his work, although done for the business, is not integrated into it, but is only accessory to it" per Lord Denning | |
| Montreal v Montreal Locomotive Works [1947] | The economic risk test/First suggested by Lord Wright/(i) control of the method of work/(ii) ownership of tools/(iii) chance of profit/(iv) risk of loss |
| O’Kelly v Trusthouse Forte plc [1983] | The mutuality of obligation test/employer is obliged to give the employee work and the employee is obliged to accept it/the waiters were not employees as they did not have to come to work if they did not wish to, hence no mutuality of obligation |
| Carmichael v National Power [1999] | held that casual staff acting as guides to the power station were not employees as work was not guaranteed and they were not obliged to work when asked. |
| Where a permanent employer lends an employee temporarily to another employer | general rule is that the permanent employer remains vicariously liable for the negligent acts of the employee even if carried out during the temporary employment period/even more likely to be the case where the employee is loaned along with machinery. |
| Mersey Dock & Harbour Board v Coggins & Griffiths [1947] | did not exclude the possibility of liability ever transferring to the temporary employer. |
| CC of Lincolnshire v Stubbs [1999] | held that police officers seconded to another force remained employees of their home force. |
| Viasystems v Thermal Transfers [2006] | Court of Appeal made BOTH employers liable/stated that the matter should be about which employer actually controls the employee’s work. |
| Liability for independent contractors | The general rule is that a person who hires an independent contractor is not liable for his negligence. |
| 2 exceptions to the rule | where the contractor is carrying out “ultra-hazardous” activities/where the activity affects the highway |
| Honeywill v Larkin [1934]/Lilley v Carter [1999] | where the contractor is carrying out “ultra-hazardous” activities – |
| Tarry v Ashton (1876)/Salsbury v Woodland [1970] | where the activity affects the highway |
| Was the tortfeasor in the course of his employment? | 3 common aspects of this question/(i) was the employee on his employer’s time and within his employer’s space?/(ii) was the employee doing an authorised act in an unauthorised mode?/(iii) was the employee on an authorised journey? |
| Ruddiman & Co. v Smith (1889) | time and space/tort must have been committed by the employee within his authorised period of work or during a timeframe which is reasonably connected to that period, for example staying behind shortly to complete a task |
| Staton v National Coal Board | a miner cycling to collect his wages within the colliery grounds killed another miner/Held the course of employment had not ceased. |
| Compton v McClure [1975] | May J held that the employer of the D, who was rushing to work to clock in on time, who injured someone within the grounds, was vicariously liable. |
| Joel v Morrison (1834) | When employees are travelling the issue that arises is whether the employee was “on a frolic of his won” |
| Smith v Stages [1989] | Lord Lowry described 5 types of situations/to/from residence to work/between places of work, in employer’s time/in receipt of wages for time travelling/ |
| travelling from residence to a different place of work/emergency in employer’s time/deviation/interruption from authorised journey | |
| to/from residence to work | not within employment |
| between places of work, in employer’s time | within employment |
| in receipt of wages for time travelling | indicates employment |
| travelling from residence to a different place of work | indicates employment |
| emergency in employer’s time | indicates employment |
| deviation/interruption from authorised journey | not within employment, unless incidental to the journey or the work – for example stopping for petrol |
| mode of doing the work | doing something not authorised by the employer/employer will not be vicariously liable/employee was doing a wrongful act, but which was authorised by the employer/employer will be vicariously liable. |
| Where the employee was doing something authorised by the employer, but was doing it in an unauthorised mode | the question of vicarious liability becomes more complex. |
| Rose v Plenty [1976] | Lord Denning MR found the employer liable even though the employee had been expressly forbidden to take children on the milk float – on the grounds that the employee was still doing an authorised act (delivering milk) but in an unauthorised mode. |
| Lord Denning referred to | Limpus v London Omnibus (1862)/the bus driver was doing what he was employed to do/i.e. driving the bus though negligently/Twine v Bean’s Express (1946)/in contrast, held as taxi driver job was to take fare-paying passengers and not give a free ride |
| Lister v Helsey Hall [2002] | test has shifted/become even broader/warden of a boarding school sexually abused the children/held the acts were “so closely connected” with the nature of the warden’s employment that it was “fair and just” to hold the employer vicariously liable. |
| Mattis v Pollock [2003] | employers were vicariously liable even thought the assault had an element of revenge and took place outside the premises/ because the act was closely connected to the nature of the man’s employment |
| Weir v CC of Merseyside Police [2003] | a policeman borrowed a police car to help his girlfriend move house – in the process assaulting a youth who was interfering with her belongings/Held CC was vicariously liable because the employee had identified himself as a police officer |
| Keppel Bus Co v Sa’ad Bin Ahmed [1974] | Assaults and other criminal acts/The general rule was that the employer will not be vicariously liable |
| vicariously liable | for acts of their employees/for torts committed against their employees/These torts are committed when employers fail in their non-delegable duties to their employees, and are “primarily liable”. |
| Non-delegable duties | those which are considered so important that the employer can never delegate the responsibility for them to another. |
| Statutory non-delegable duties | aimed at protecting the health and safety of employees at work, although they can encompass duties to other parties too. the Health and Safety at Work Act 1974 |
| Common Law non-delegable duties | usual to consider this general duty under 4 heads, which are simply 4 aspects of the same duty |
| Winter v Cardiff RDC [1950] | MacDermott LJ/“they lie within, and exemplify, the broader duty of taking reasonable care for the safety of his workmen which rests on every employer” |
| Duty to employ competent staff | Employers must take care to select and train staff properly so as to ensure all employees are competent. |
| Hudson v Ridge Manufacturing Co [1957] | the duty extends to taking into account a notorious practical joker, but not where the employee deliberately causes the accident/Horton v Taplin [2002] |
| Duty to provide a safe place of work | In addition to their duties under the OLA 1957, employers must take positive steps to ensure work places are safe for the employees/ |
| Square D Ltd v Cook [1992] | this does not extend to checking all the premises to which the employee is likely to travel/where the employee was sent to work for a client in Saudi Arabia. |
| Wilson v Tyneside Window Cleaning Co [1958] | the employer had done all that was reasonable in the circumstances. |
| General Cleaning Contractors Ltd v Christmas [1953] | the employer was not liable for the employee being injured due to the window moving, but was liable for failing to warn their employees to test windows before cleaning and failing to provide wedges to keep windows still. |
| Duty to provide proper plant and equipment | The duty thus includes providing proper tools and equipment, and educating the workers in how to use them. |
| Coltman v Bubby Tankers [1988] | This includes machinery, vehicles and clothing |
| Knowles v Liverpool CC [1994] | It also includes whatever the employee was working on/where C was injured by the flagstone on which he was working. |
| Parkinson v Lyle Shipping Co [1964] | Where C is using equipment in the wrong way (and D can prove C received proper training) D may not be liable |
| Barnett v Scottish Power [2002] | C had to use a chair to read a meter and fell off – D was liable for failing to provide a stepladder. |
| Duty to maintain a safe system of work | The content of the duty will vary according to the type of work. A number of principles have emerged from a large amount of litigation. |
| Nolan v Dental Manufacturing [1958] | where the risk is obvious and great, the employer should not leave it to the employee to take care/P sharpening a tool on a grinder blinded by a splinter/Held duty on employer to provide and enforce use of goggles/must also warn the employee of the danger |
| Cook v Bradford Community NHS Trust [2002] | the CA found employers liable for injury caused to employee who was assaulted by violent patient in a psychiatric unit. There was a known risk and the system in place was negligent. |
| Rahman v Arearose [2000] | a Burger King employee at Kings Cross was assaulted by a customer. |
| Chalk v Devizes Reclamation Co [1999] | Employees who have been properly trained are expected to use their common sense/C, a labourer in a scrap metal yard, trained in lifting routine objects, injured his back trying to life an usually heavy object. D not liable. |
| General Cleaning v Christmas | But the court must take into account the fact that workers sometimes have to “make their decisions on narrow window sills and other places of danger” |
| Standard practice in the industry | is an important factor/ the courts will rarely single out an employer if no other would have done different. |
| The Herald of Free Enterprise Litigation (1989) | However, sometimes the practice, despite being standard, is held to be dangerous/where the standard practice to keep the bow door open while leaving port was found to be negligent (it caused the death of 150 passengers and 38 crew). |
| Walker v Northumberland CC [1995] | It is up to the employer to keep abreast of new developments or new types of dangers/for example repetitive strain injury, vibration white finger, work related stress/the duty is to take care where an employee has already had a breakdown. |
| Mulcahy v MOD [1996] | armed services used to be immune from litigation/immunity lifted in 1987/however, still no duty on the MOD to provide a safe system of work in battle conditions/C was cleaning a howitzer when the order was given to fire it at Iraqi troops/Held no liabilit |
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