Employers And Vicarious Liability Notes

• Employers’ (Primary) Liability

  - Definition: employee sues employer for breach of duty of care at work (c. must be employee, test: Ready Mixed Concrete).

  Duty of Care

  - Principal duty: to take reasonable care for employees’ safety (Wilsons & Clyde Coal Co v English).

  • 1 principal duty – [Ld Wright]: ‘provision of competent staff of men, adequate materials + proper system/effective supervision’.

  • 3 areas:

    • 1. duty to provide safe premises, plant, equipment + materials.

    • 2. duty to provide reasonably competent fellow employees.

    • 3. duty to provide safe system of work: inc. supervision + instruction.

  • common law duty: employer cannot rely on compliance with statutory duty as defence (Bux v Slough Metals).

  • implied term in employment contracts (Johnstone v Bloomsbury AHA).

    • cannot exclude (s2(1) UCTA 1977).

  • compulsory insurance (Employers’ Liability (Compulsory Insurance) Act 1969 / Regulations 1998).

  - Duty personal + non-delegable (McDermid v Nash Dredging) – can delegate responsibility but not liability.

  • Mullaney v CC W Midlands Police: PC on stake-out unable to call back-up, beaten up CC liable: cannot delegate.

  … 1. Duty to Provide Safe Premises, Plant, Materials, Equipment

  - Safe premises (Smith v Baker & Sons: rock from crane – [Ld Herschell]): must take reasonable care to provide proper appliances, to maintain them in proper condition, carry out operations as to not subject those employed to unnecessary risk.

  • arises from contract.

  • ‘premises’: inc. defects in premises + hazardous activities taking place.

  - Safe machinery, plant + equipment as employer ought reasonably to provide: dep. on circs.

  • safety features/equipment/protective clothing:

    • Qualcast v Haynes: employer provided protective footwear, not worn NOT liable.

    • Davie v New Merton Board Mills Ltd: defective hammer, but reputable supplier NOT liable.

      • now reversed: Employers’ Liability (Defective Equipment) Act 1969.

    • Bux v Slough Metals Ltd: protective goggle provided, not worn LIABLE: duty to insist equipment used (modifying Qualcast).

    • Yorkshire Traction Co v Walter Searby: bus drivers not provided with screens, but had objected b/c of glare + risk low NOT liable.

  • consider employees’ characteristics (Paris v Stepney BC: 1-eyed extra precautions needed).

  • but exceptional circs. may be excluded (Mulcahy v MOD: duty does not extend to soldiers in battle).

  • N.B. employees also have duty to use sensibly (O’Reilly v National Rail Appliances: hit bomb with hammer employer NOT liable).

  • equipment: s1(3) Employers’ Liability (Def. Equip.) Act 1969: ‘any plant + machinery, vehicle, aircraft, clothing’ – broad.

    • Coltman v Bibby Tankers: ship = equipment.

    • Knowles v Liverpool CC: flagstone = equipment.

  - Precautions need only be reasonable, not absolute (Latimer v AEC).

  - Injury on 3^rd party premises: still duty, but standard lower (Wilson v Tyneside Cleaning Co: external premises lower standard; Cook v Square D Ltd: abroad – even lower.)

  … 2. Duty to Provide Reasonably Competent Fellow Employees

  (N.B. vicarious claims more common: esp. for incompetent staff.

  • but primary employers’ liability too (+ employee himself liable, but often no money).

  - Employer must take reasonable precautions: e.g. checks, probationary periods, dismissal of known risky employees.

  • incompetent employee: d. liable if negligent in selection of staff (Black v Fife Coal Ltd: incompetent colliery manager employer liable).

  • practical jokers: d. liable if (ought to be) aware of risk (i.e. habitual joker, not one-off).

    • Hudson v Ridge Manufacturing Co Ltd: c. tripped up by known prankster, employer aware liable.

    • Smith v Crossley Bros: unusual practical joke (debagging + gas) not liable: unforeseeable.

  • bullying/harassment: d. liable if aware of risk.

    • Harrison v Lawrence Murphy: employee harassed by manager, partners aware 50k settlement.

    • Waters v MPC: WPC harassed for complaining of assault liable.

  … 3. Duty to Provide Safe System of Work

  - Broad: ‘physical layout of job’: inc. organisation, sequence, warnings/instructions, training, methods (Speed v Thomas Swift & Co, [Ld Greene]).

  • must be devised + implemented (McDermid v Nash Dredging Co).

  • training (General Cleaning v Christmas: window-cleaner balancing precariously d. liable: should have minimised risk through training – must take a/c of employee carelessness).

  • instruction/supervision: dep. on kind of work + risks.

    • must update + review (Speed v Thomas Swift).

    • even if unusual work (Fraser v Winchester HA: c. sent on camping expedition with gas stove.)

  • warnings: dep. on level of risk (Pape v Cumbria CC: c. using industrial cleaning chems, not warned d. liable; Fraser v Winchester HA: c. not told how to use gas stove liable).

  • economic welfare: e.g. insurance for those going abroad (Crossley v Faithfull & Gould Holdings).

  - Standard: employer must take REASONABLE CARE – not absolute.

  • Clifford v Charles Challen & Son Ltd: d. failed to keep protective substances on premises + discouraged liable for dermatitis.

  • Woods v Durable Suites: c. provided dermatitis cream + encouraged use, but c. did not use NOT ([Singleton LJ]: employer not required to ‘stand over workmen of age + experience every moment’).

  • must take account of employee’s characteristics (Paris v Stepney BC) – BUT ONLY REASONABLE STEPS (Withers v Perry Chain Co: no work w/out chemicals available not reasonably avoidable injury).

  Standard & Breach

  - Standard: reasonably competent employee (Latimer v AEC: need not be perfect).

  - Objective test: was reasonable care provided to employees IN ALL THE CIRCUMSTANCES?

  • characteristics of employee (Paris v Stepney BC).

  • reasonable precautions in circumstances (Latimer v AEC: sawdust on floor; Woods v Durable Suites: providing dermatitis cream; Yorkshire Traction Co v Walter Searby: no protective screen).

  • N.B. employee must also take reasonable steps for safety (O’Reilly v Nat. Rail Appliances: hammered bomb).

  Causation

  - Factual causation: ‘but for’ test (McWillims...

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