Employers' Liability Notes

Tort Law : Employers’ Liability

Recap of vicarious liability [a form of secondary liability, the tortfaesor is not the defendant, the employer is]

• Vicarious liability is a mechanism for suing an employer for the torts of their employees

• Is a form of strict liability.

• 3 elements for vicarious liability:

  • Vicarious liability will only succeed if the employee has committed a tort. Employee has committed a tort (have to fulfil the required elements for that tort, eg negligence).

  • An employer will only be vicariously liable for the torts committed by their employees not those of their independent contractors

  • An employer will only be vicariously liable if the torts were committed in the course of employment

Employers’ liability, basic principles

• Employers’ liability is a specific claim in negligence where an employee is suing their employer.

• So this is primary liability of employers (cf secondary/vicarious liability): this is where the employer is at fault himself; cf vicarious liability, where the fault is by the employees.

• With employers’ liability the employer is being sued directly for their own negligence [CF vicarious liability, where the employee is negligent].

• It is only necessary to consider common law breaches for the syllabus not breaches of statutory duties.

• The structure and rules for employers’ liability are the same as for a general negligence claim.

• The negligence by the employer must have taken place in an employment context.

• The claimant can only bring a claim against the defendant if they are an employee and the defendant is their employer.

• Why employer’s liability merits separate attention from basic negligence principles:

  • The development of unique tortious principles which only cover this area;

  • The massive growth of litigation in this field

Employers’ liability—structure for claim

• (1) Is C an employee of D (Ready Mix Concrete v Minister of Pensions; Warner Holidays v SoS Social Services)—same rules as last week for vicarious liability, look at all conditions, see what picture emerges.

• (2) Once proved above, we have familiar Negligence structure:

  • Loss

  • Duty

  • Breach

  • Causation

  • Remoteness

  • Defences

• You can use general negligence cases, but better to use cases from employment context, because of particular policy concerns re employment]

What losses can be claimed?

• Traditionally, the duty owed by employee to employee was for personal injury.

• More recently, courts have extended the duty to:

  • Psychiatric illness (eg work related stress)

  • Sexual harassment

  • Bullying

  • (see remoteness, below)

Duty of care between employer and employee

• Well established duty, Wilsons and Clyde Coal v English (1938), they broke down the employer’s duty into different elements:

  • Employer has a duty to provide:

  • (1) a Safe place of work (including materials and plant).

  • (2) A safe system of work (including supervision and instruction).

  • (3) Competent fellow employees

  • [[these are not totally distinct duties, simply different components of the same overall duty—Winter v Cardiff (1950)—all within the ‘broader duty of taking reasonable care’]].

• The duty of care is (1) personal and (2) non-delegable: so regardless of whom the employer uses to carry out tasks, the ultimate responsibility for the safety of the employee rests with the employer—he can delegate performance of the duty, but not liability for its breach (McDermid v Nash Dredging).

• The duty is non-delegable

  • Before 1948---The doctrine of common employment: protects employer when negligence was carried out by the employee, not the employer themselves. So was harder to find the employer directly liable.

  • Doctrine of common employment abolished by s1(1) Law Reform (Personal Injuries) Act 1948: and now the courts have said it doesn’t matter who was responsible for the failure in the workplace, whether employer’s fault, or whether an individual employee was at fault. Because non-delegable—the ultimate legal responsibility stays with the employer.

• Winter v Cardiff Rural District (1950);

  • Based on older system. Injury from equipment not properly secured to truck. Question: was it a casual act of negligence by employee in carrying out the system, or was the system itself, as designed by the employer, at fault? The question was crucial then, because was before doctrine of common employment was abolished.

• Non-delegable: McDermid v Nash Dredging (1987):

  • Under new law. Makes no difference whose fault it was, as long there isn’t a safe system at work, it’s non-delegable, employer ultimately responsible.

  • Lord Brandon: ‘ ... it is no defence for the employer to show that he delegated its performance to a person ... despite such delegation the employer is liable for the non-performance of the duty’.

• So since 1948, much easier to find direct liability against the employer.

• Burden of proof rests on claimant:

• NB, the duty is based on common law, acts independently of any statutory duty: no defence for an employer to say they have complied with the relevant statutory duty and that therefore their common law duties have been met (Bux v Slough Metals (1973)).

  • Note that at common law a term is also implied into all contracts of employment that reasonable care will be taken by employer to ensure health & safety of employee (Johnstone v Bloomsbury AHA (1991)).

  • This cannot be excluded by reference to express contract terms ( s2(1) Unfair Contract Terms Act 1977)).

• Compulsory for employers to have insurance to cover such claims: Employers’ Liability (Compulsory Insurance) Act 1969 and Regulations 1998.

BREACH

Breach (1)—Standard of Care

• Standard = reasonably competent employer.

• Objective standard.

• Winter v Cardiff (1950): not an absolute standard, but high standard expected.

• Latimer v AEC (1953)—the duty is to take REASONABLE CARE—not an absolute duty.

  • A factory was flooded.

  • Employers did everything they could, used all available sawdust to put on floor to stop it being slippery. And employed 40 men to clean the factory.

  • But part of...

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