Employers' Liability PDF

6 Employers’ Liability LEARNING OUTCOMES When you have completed this chapter, you should be able to: explain all the elements which a claimant needs to prove to establish a claim in negligence against their employer; explain the scope of the em...

6 Employers’ Liability LEARNING OUTCOMES When you have completed this chapter, you should be able to: explain all the elements which a claimant needs to prove to establish a claim in negligence against their employer; explain the scope of the employer’s duty in negligence in so far as it relates to stress at work; explain the principle of vicarious liability; appreciate the overlaps and differences between negligence and vicarious liability in this area; apply the law accurately in analysing a set of facts. 6.1 Introduction Claims by employees injured at work are some of those most commonly brought before the courts. The majority of employers are required by statute (Employers’ Liability (Compulsory Insurance) Act 1969) to take out insurance against such claims. An employee will know, therefore, that embarking on litigation will not be a worthless exercise. The employer should have the means to pay any damages it is ordered to pay. There are two potential areas of liability in tort for the employer. We will be studying these in this chapter: liability in negligence for breach of the personal duty an employer owes to every employee; vicarious liability for the tort of an employee committed in the course of their employment. You may perhaps have encountered statutory health and safety regulations made under the Health and Safety at Work etc Act 1974. The current relevance of such regulations to a claim in tort will be examined at the end of our review of negligence. In addition to liability in tort, the employer has a contractual relationship with its employees; however, the extent of an employer’s contractual liability is outside the scope of this book. We will start by looking at the duties owed by an employer at common law in negligence to every employee. 137 Tort 6.2 Negligence: employer’s common law duty The duties we will be looking at are owed only to employees. (You will also sometimes see the term ‘servant’ used to describe employees when reading some of the older cases.) Not all persons who do paid work are employees. Some are independent contractors. An independent contractor is a company, partnership or individual in business on its own account (for example, a decorator whom you engage to repaint your house). The general nature of the duty owed by the employer to their employees is a duty to take reasonable care for its employees’ safety while at work. Case law has further defined the employer’s duty in more specific terms. The House of Lords in Wilsons & Clyde Coal Co Ltd v English 3 All ER 628 defined the employer’s common law duty as comprising three separate duties. The duties are to take reasonable steps to provide: competent staff; adequate material (ie plant, equipment and machinery); and a proper system of work and supervision. In Latimer v AEC Ltd 2 All ER 449, the House of Lords added a fourth duty to the list, ie the duty to take reasonable steps to provide: a safe place of work. A feature that is common to all four duties is that the duty owed by employer to employee is ‘personal to the employer’. This means that an employer cannot escape liability for the negligent performance of its duty by saying that it delegated its performance to someone else (eg an independent contractor or one of its own employees) whom it reasonably believed to be competent to perform it. It is a non-​delegable duty. The practical implications of this are considered in the examples below. Examples Fiona, a factory worker, is badly injured when a machine she was operating exploded. The machine was recently serviced by a local contractor who negligently failed to spot an obvious electrical fault. The factory will be liable to Fiona. It owes Fiona a duty to provide adequate plant and equipment. Although it has delegated the servicing of the machine to a local contractor, its duty is non-​delegable and so the negligent failure of the contractor to rectify the wiring problem will place the factory in breach of this duty. (Although the factory will be liable to Fiona, it will have a claim in contract against the contractor whereby it could recoup any compensation it has to pay out.) This can be compared with the example of Robert, who is also employed by the factory, and who is knocked over outside the factory by a lorry being driven negligently by Simon, who is delivering goods from a supplier. The factory has not delegated the performance of any of its duties to Simon. As Robert is injured outside the factory by someone not employed by the factory, this incident falls outside the scope of the factory’s duties as Robert’s employer. Robert’s claim would therefore lie in negligence against Simon (or, if Simon is an employee of the supplier for whom he was delivering, against the supplier under the principle of vicarious liability which is considered later in this chapter). 138  Employers’ Liability The reason why the duty of care owed by an employer to their employees is non-​delegable is because the relationship is a close personal relationship, based on mutual trust and confidence. The employee does not have to identify exactly who was to blame for an accident. The employee can simply allege that a given event or given state of affairs proves that the employer has breached its personal common law duty. Each of the duties are considered below. 6.2.1 Competent staff An employer owes an employee a duty to provide the employee with competent fellow workers. In Hudson v Ridge Manufacturing Co Ltd 2 QB 348, the claimant was injured while at work through a prank practised on him by a fellow workman. The claimant claimed damages for personal injuries against his employers, the defendants. The claim was based on a breach by the defendants of their duty at common law to take care for the safety of their workmen. Over a space of four years, the fellow workman in question had been in the habit of tripping people up, or otherwise engaging in horseplay. During this period, he had been reprimanded over and over again by his foreman and told that if he did not stop his horseplay somebody would be likely to be hurt. The claimant succeeded. The judge made it clear that the important factor in the case was that the employer knew about the risk that the workman was posing to fellow staff. Had this been the first occasion that the workman had played a prank then the duty of care would not have arisen. The duty to provide competent staff will not therefore arise merely from the fact that a worker is incompetent. Rather, it arises where an employer knows, or ought to know, about the risk a particular worker is posing to fellow workers. This was confirmed by the House of Lords in Waters v Commissioner of Police for the Metropolis 1 WLR 1607. The House of Lords also confirmed, in this case, that the risk being posed by the worker could be of psychological as well as physical harm. This duty is therefore important in respect of bullying in the workplace. (In the circumstances covered by this duty, an injured employee may often also be able to bring a claim against their employer through vicarious liability, which is considered below.) The duty to provide competent staff means that an employer will need to carefully consider many practical issues, including: selection of staff; provision of training to ensure staff are equipped to do their job; provision of supervision as necessary; dismissal of employees who, despite adequate training, etc, continue to pose a risk to fellow staff. If an employer does not, for example, adequately train or supervise its workers then it may well have on its staff workers who are not competent. The employer would either know about this incompetence, or ought reasonably to know about it. Such knowledge gives rise to the duty of care to other employees. The second duty from Wilsons & Clyde Coal was a duty to provide adequate material. This has been interpreted widely by the courts and is usually now referred to as the duty to provide adequate plant and equipment. This is considered below. 139 Tort 6.2.2 Adequate plant and equipment An employer owes an employee a duty to provide the employee with adequate plant and equipment. This duty is relevant in two situations: Where an employer does provide plant and/​or equipment to its employees but it is inadequate in some way. For these purposes ‘equipment’ covers anything provided by an employer for the purposes of its business. Where an employer does not in fact supply all the plant and equipment needed for the job. This aspect of the duty overlaps with the duty to provide a safe system of work, and this is considered at 6.2.3 below. Example Lucas owns a factory in which there are several machines, some of which are inherently dangerous. The various ways in which the machinery could be or become inadequate for an employee to use include: problems caused by wear and tear or the age of the machines; problems caused by lack of servicing and inspection; lack of safety devices (such as hand guards) on the machines; inherent defects in the machines themselves (such as a design fault or manufacturing defect). The employer’s duty to provide adequate plant and equipment is therefore a demanding one. An employer must provide all necessary equipment and maintain it to a safe standard. However, one reason equipment may be inadequate is because of inherent defects. This is considered below. Employer’s Liability (Defective Equipment) Act 1969 The purpose of the above Act is to save an employee from experiencing the potential difficulty of identifying and suing the manufacturer of defective equipment supplied to their employer. The employee can simply sue the employer for breach of its duty to provide adequate plant and equipment instead as, under s 1(1), ‘the injury shall be deemed to be also attributable to negligence on the part of the employer’. The injured employee needs to establish two things: fault on the part of the third party (most commonly the manufacturer of the equipment, but a supplier would also come within the statutory provision); causation (ie that the fault of the third party caused the employee’s injury). The third duty from Wilsons & Clyde Coal Co Ltd involves the provision of a safe system of work. This is considered below. 6.2.3 Safe system of work An employer owes an employee a duty to provide the employee with a safe system of work. This is the widest and therefore most frequently invoked branch of the employer’s duty. The duty to provide a safe system of work includes, amongst other things, the physical lay-​out of the job, the sequence in which the work is carried out, and, where necessary, the provision 140  Employers’ Liability of training, warnings, notices, safety equipment and the issue of special instructions. It also covers cases where, through lack of a safe system of work, an employee has suffered stress (as opposed to some physical injury). The courts have, however, devised some special rules to apply in this context, which are considered at 6.2.5 below. It is not enough for an employer simply to devise a safe system; this duty also requires an employer to take reasonable steps to ensure that it is complied with. The steps which a reasonable employer would take to ensure the safe system is being implemented include: providing adequate training to employees in the operation of the new system; ensuring the employees are supervised, at least at the outset; monitoring the operation of the system to ensure it is being fully complied with; and taking disciplinary action against any employee who fails to comply with the system. Complying with the duty to provide a safe system of work therefore requires an employer to continuously assess the risks inherent in its particular working environment. It is a wide-​ ranging and potentially onerous obligation as evidenced by the number of cases in which the ‘safe system of work’ duty has been in issue. 6.2.4 Safe workplace An employer owes an employee a duty to provide the employee with a safe place of work. In Latimer v AEC Ltd 2 All ER 449, the House of Lords confirmed that, in addition to the duties set out in Wilsons & Clyde Coal, an employer owes a duty to an employee to take reasonable steps to provide a safe place of work. There is an overlap between this common law duty in negligence and the statutory duty provided by the Occupiers’ Liability Act 1957 (which is considered in detail in Chapter 7). Under this Act, where there are dangers due to the state of the premises, an occupier owes a duty to visitors to take reasonable care for their safety. An employer would qualify as an occupier in respect of work premises and an employee as a visitor. Although there is an overlap, the employer’s common law duty to employees is more onerous than the duty under the 1957 Act in two respects: Under the 1957 Act, an employer can comply with its duty by delegating work to an independent contractor (s 2(4)(b)). The employer’s common law duty is, in contrast, non-​delegable. The 1957 Act duty only applies to premises of which the employer is ‘occupier’. In General Cleaning Contractors v Christmas AC 180 the House of Lords confirmed that the common law duty to provide a safe system of work (considered at 6.2.3 above) applies regardless of where the employees are at work. This means an employer has to assess premises to which its employees are sent for dangers and then, if such dangers are found, devise and implement a system of work so as to eradicate or minimise those dangers. 6.2.5 Stress at work In the case of Walker v Northumberland County Council 1 All ER 737, the Court of Appeal confirmed that the duty to provide a safe system of work can extend to an employee who has suffered stress as a result of their work. Although this stems from the ‘safe system of work’ duty, later cases have refined the law applicable in this context. In Hatton v Sutherland 2 All ER 1, the Court of Appeal laid down guidelines (the Hatton Guidelines) as to how courts should deal with such claims. These have since been approved by the House of Lords in Barber v Somerset County Council 2 All ER 385. 141 Tort The Court of Appeal in Hatton said that the ‘threshold question’ to determine whether a duty would arise was whether injury to health through stress at work was reasonably foreseeable. The Court went on to say that, in deciding this threshold question, the court should consider: the nature and extent of the work done by the employee (eg was the workload obviously too demanding in terms of type or amount; was there a high degree of absenteeism or sickness in the relevant department, etc); and signs from the employee themselves. The Court stated that an employer is generally entitled to assume an employee was up to the normal pressures of the job and was entitled to take what an employee told it at face value. Examples Alison is a teacher who has been taking on extra work in the hope of securing a promotion. She has recently seen her GP and is complaining that her workload is causing her to be depressed. She does not want to jeopardise her job prospects so has not told anyone at school of her problems. Alison’s employer is unlikely to know of the problems that Alison is facing. A duty of care is therefore not likely to arise unless the amount of Alison’s extra work is so excessive that it alone makes future problems foreseeable. Clement works in the prison service. He is going through a difficult divorce, which is making him depressed. He discusses matters with his employer and asks to take two weeks’ immediate holiday. His employer is sympathetic but is unable to grant his request. Clement is then signed off work with a stress-​related illness. Clement’s stress problems are not caused by his work but by personal problems and therefore fall outside the ambit of a duty. Bilal is a social worker. He suffers a nervous breakdown as he is not able to cope with his workload. He is absent from work recovering for two months. On his return, his employer promises to give him some extra assistance, but nothing further happens. Bilal has now suffered a second nervous breakdown. The fact that Bilal was previously off work for stress caused by his work makes it foreseeable that this could occur again unless steps are taken by the employer. This foreseeability gives rise to the duty to take such steps. (Note that this example is based on the facts of the Walker case referred to above.) In Hatton, the Court of Appeal confirmed that the control mechanisms which apply to other claims for psychiatric harm (considered above in Chapter 3) have no role to play in claims for stress at work. The four duties considered above together make up the employer’s duty in negligence to take reasonable care for an employee’s safety. The issue of breach of the employer’s duty is considered below. 6.2.6 Breach of duty Each of the duties owed by an employer requires the employer to take such steps as are reasonable. An employer will be in breach of its duty if it fails to meet the standard of care to be expected of a reasonable employer in its position. 142  Employers’ Liability The approach to breach of duty is the same in this area of negligence as in relation to general negligence. The court will assess the standard of care to be expected by looking at all the circumstances of the case, including the magnitude of the foreseeable risk and also the cost and practicality of precautions. An employer’s duty is a personal one deriving from the close relationship of mutual trust between employer and employee. As well as making the employer’s duty non-​ delegable, this also means that the duty is owed to each individual employee. This is considered below. In the case of Paris v Stepney Borough Council 1 All ER 42 (considered in Chapter 2), the defendant was required to take extra precautions for the claimant’s safety because it knew he had only one sound eye and, therefore, risked total blindness if that eye was damaged. His colleagues, on the other hand, risked blindness in only one eye. To be in breach of duty, the risk must be known to the defendant. Accordingly, if the defendant had (reasonably) been ignorant of the claimant’s special circumstances, it would not have been liable, unless the risk of injury was so great that fully sighted garage hands should have been provided with goggles. Health and Safety at Work etc Act 1974 (HSWA 1974) It should be noted that regulations governing health and safety in the workplace are made under the HSWA 1974. These regulations cover a vast range of issues arising in the workplace, such as the obligations to carry out risk assessments and the provision of information and training for employees. Breach of regulations made under the HSWA 1974 is a criminal offence. Section 47 of the HSWA 1974 provides that breach of regulations made under the HSWA 1974 is not actionable in a civil claim (unless the particular regulations in question provide otherwise). This means that an employee injured at work will not be able to bring a claim for breach of statutory duty based on regulations made under the HSWA 1974. Although such regulations cannot be relied upon as the basis for a claim for breach of statutory duty, the provisions remain relevant where an injured employee brings a claim in the tort of negligence. The employers’ duty is to take reasonable care for the safety of employees. The content of statutory health and safety regulations will be relevant in assessing breach of duty. A court assessing breach of duty in negligence will ask two basic questions: What risks ought the employer to have foreseen? What precautions ought the employer to have taken in response to those risks? Where a particular risk is covered by statutory health and safety regulations, the content of those regulations will be highly relevant in answering both of the above questions. In other words, precautions which are required by statutory health and safety regulations are likely to be regarded as a guide to the standard which a reasonable employer ought to meet. Therefore, it will continue to be important for practitioners to have a good understanding of statutory health and safety regulations. 6.2.7 Causation Once an employee has established a breach of the employer’s duty of care, the issues of causation, novus actus interveniens and remoteness must be considered, applying the usual tests (see Chapter 3). Many of the leading cases on causation arise from claims against employers. 6.2.8 Defences The main defences raised by an employer are likely to be voluntary assumption of risk and contributory negligence. These are considered in Chapter 3. 143 Tort It is rare for an employer to be able successfully to raise the defence of voluntary assumption of risk against an employee, because of the difficulty of showing that the employee freely consented to run the risk of injury caused by the employer’s negligence. Careless employees may find their damages reduced for contributory negligence. However, the courts are prepared to make allowances for employees working in noisy conditions, doing repetitive work. Courts will therefore be slower to make a finding of contributory negligence against such an employee than against other employees (eg office workers). If there is a finding of contributory negligence against an employee, damages will be reduced according to the usual principles (see Chapter 3). 6.3 Vicarious liability Vicarious liability is not a tort; it is a principle under which a person is liable for the torts committed by another. While other, less common, situations of vicarious liability exist, this chapter concentrates on the most common situation of an employer’s liability for the action of its employees. Under the principle of vicarious liability, it is not a requirement that the employer has committed a tort itself. Its liability is a form of secondary liability in that it derives from a tort committed by its employee. The employer is liable in addition to (not instead of) its employee. They are jointly liable. This means that a claimant can sue either the employer (as vicariously liable) or the employee (as primarily liable) or both of them (as jointly liable). This is demonstrated by Figure 6.1. Figure 6.1 Vicarious liability illustration Watt & Co (Employer) Ashraf (Injured party) James (Employee) Example James is employed by Watt & Co in its factory. One day he negligently loses control of the drill he is using to carry out his work, and Ashraf, a fellow employee, is injured. Ashraf can sue either Watt & Co, or James, or he can sue both of them. If Watt & Co pay compensation to Ashraf, it may, in certain circumstances, claim this back from James. This is known as a right of indemnity and is considered below. There are a number of justifications of why vicarious liability exists. They include: Moral reasons: ∘ It encourages accident prevention, ie it gives an employer a financial interest in encouraging its employees to take care for the safety of others. ∘ Since an employer makes a profit from its employees’ activities, it should also bear any losses which stem from those activities. 144  Employers’ Liability Practical reasons: ∘ Employees may not be worth suing financially. Employers are likely to be better able to stand the loss. ∘ Employers are in a better position to insure against liability (eg motor insurance should cover the situation described above). ∘ Employers can pass the cost of insuring against liability on to customers through higher prices for goods or services. The three essential elements for vicarious liability to exist on the part of an employer are: The worker must be an employee (or in a relationship akin to employment). The employee must have committed a tort. The employee’s tort must have been committed in the course of their employment. Before vicarious liability can exist, the employee must have committed a tort. This is often negligence, but the employee could have committed any other tort. It is logical to start by considering whether the facts of a case do suggest an underlying tort by the employee. If they do not then there is nothing for the employer to be vicariously liable for. Other chapters consider this second requirement, eg the claimant’s claim against the employee in negligence. This chapter concentrates on the other two requirements that are needed for vicarious liability. 6.3.1 Who is an employee? For vicarious liability to exist, there must be a relationship of employer and employee (or a relationship akin to employment). The important distinction is between an employee (employed under a contract of service) and an independent contractor (employed under a contract for services). This distinction is important because employers cannot be held to be vicariously liable for the acts of independent contractors. This distinction was reaffirmed by the Supreme Court in the case of Barclays Bank plc v Various Claimants UKSC 13. The principal differences between an employee and an independent contractor are, first, that an employee performs a service for just one person (the employer). An independent contractor, on the other hand, provides services to several people. Secondly, an independent contractor is self-​employed and therefore is in business on their own account. An employee, on the other hand, receives a wage, but it is the employer who has the business interest. Factory workers, airline pilots and shop assistants are all examples of employees. Self-​ employed plumbers, builders and electricians are examples of independent contractors. In many cases, it will be easy to decide whether a worker is an employee or an independent contractor. However, in marginal cases, it can be a difficult distinction to draw. Over the years, the law has developed a number of tests to try to distinguish employees from independent contractors. The scope of vicarious liability was considered by the Supreme Court in Various Claimants v Catholic Child Welfare Society and Others UKSC 56, which dealt with a relationship akin to employment. The Supreme Court set out five criteria that are relevant to determine whether there is a relationship of employment or ‘akin to employment’, such that it may be fair, just and reasonable to impose vicarious liability on an employer: i. The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; ii. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer; iii The employee’s activity is likely to be part of the business activity of the employer; 145 Tort iv. The employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee; v. The employee will, to a greater or lesser degree, have been under the control of the employer. The next requirement, which is that the employee must commit a tort in the course of their employment, is considered below. 6.3.2 Employee must act ‘in the course of employment’ An employer is vicariously liable for an employee’s torts only if they were committed ‘in the course of the employee’s employment’. This is therefore clearly an important concept, and one which often causes difficulty for the courts. The classic ‘Salmond’ definition (first identified by Sir John Salmond) of acts committed in the course of an employee’s employment (which the employer may be vicariously liable for) are: wrongful acts which it has authorised; wrongful and unauthorised modes of carrying out an authorised act. Example An off-​duty employee pushes away a man he sees trying to steal from his employer’s market stall. It is likely this would be within the course of the employee’s employment. This is based on Poland v Parr All ER Rep 177. Here the court felt that as the man was protecting his employer’s property, he had implied permission to push away the thief. The employer therefore authorised the tort (battery) the employee committed. In contrast, in Warren v Henleys Ltd 2 All ER 935 an employee, who was insulted by a customer and who punched him in the face to retaliate, was not acting in the course of his employment. The retaliation was a personal act not authorised or connected with his employment. Example An oil tanker driver decides to have a cigarette while unloading his tank of oil at a garage forecourt. He throws away the match he uses to light the cigarette, which causes a fire. This is likely to be within the driver’s course of employment. He is doing an authorised act (unloading oil) in an unauthorised way (while smoking). This example is based on the case of Century Insurance v NI Road Transport Board 1 All ER 491. Example An employee in high spirits and larking about loses control of a wheelbarrow he is pushing, which then collides with a colleague, injuring him. 146  Employers’ Liability Here the employee is doing his job (pushing the wheelbarrow) but in a careless way. This is likely to fall within his course of employment. This scenario is based on the case of Harrison v Michelin Tyre Co Ltd 1 All ER 918. The classic Salmond definition is a good starting point when considering ‘course of employment’. However, there are some areas of difficulty which have caused the courts to develop the concept of course of employment beyond the classic explanation, starting with acts which the employer has prohibited. 6.3.2.1 Acts expressly prohibited by the employer The classic explanation of ‘course of employment’ would suggest that acts done in express contravention of a prohibition from an employer would fall outside the employee’s course of employment. However, an analysis of the two cases below demonstrates that this is not always true. In Rose v Plenty 1 All ER 97, the defendant milkman was expressly prohibited by his employers from engaging young persons to assist in the performance of his duties. Nonetheless the defendant engaged the 13-​year-​old claimant to assist in the collection and delivery of milk bottles. The claimant was injured while riding on the back of the milk float due to the defendant’s driving. The Court of Appeal held that the defendant’s employer was vicariously liable. The prohibited act was done to further the employer’s business (the claimant was helping with the deliveries). Lord Denning stated that in considering whether a prohibited act is within the course of the employment, ‘it depends very much on the purpose for which it is done. If it is done for his employer’s business, it is usually done in the course of his employment, even though it is a prohibited act.’ If the claimant had not been helping with the deliveries, it is likely that, in disobeying the employer’s instructions, the milkman would have been acting outside the course of his employment. The prohibited act (giving the claimant a lift) would not then be done to further the employer’s business. In Twine v Bean’s Express (1946) 202 LT 9, a van driver gave a lift to a hitch-​hiker despite being prohibited by his employer from giving lifts. The passenger then died in an accident caused by the van driver’s negligence. Lord Greene MR, in deciding that the negligence of the driver was outside his course of employment, asked: ‘Was the driver, Harrison, in giving a lift to the deceased man acting within the scope of his employment? The answer is clearly, No. He was doing something that he had no right whatsoever to do …’ In Twine the prohibited act did not further the employer’s business at all. In contrast, in Rose v Plenty the prohibited act did further the employer’s business. Cases like Rose v Plenty are often referred to as being examples of where the prohibition relates to the manner (or mode) of doing the job rather than determining the scope of the job (as in the Twine case). 147 Tort 6.3.2.2 Intentional torts Intentionally committed torts are often also criminal acts (eg fraud). The classic definition suggests it is unlikely an employer would be vicariously liable for such acts, as they would neither be authorised acts nor unauthorised ways of doing authorised acts. Despite this, there are cases where an employer has been found vicariously liable. For example, in Lloyd v Grace, Smith & Co AC 716, a conveyancing clerk used his position to fraudulently transfer property into his own name. The court found that the fraud stemmed from an act that his employer had authorised him to do (transfer property) and so it fell within his course of employment. The issue of whether intentionally committed torts can be within an employee’s course of employment was considered by the House of Lords in Lister and others v Hesley Hall Ltd 2 All ER 769. In Lister and others v Hesley Hall Ltd, the defendant ran a school for boys with emotional and behavioural difficulties. A warden employed by the defendant subjected the claimants to systematic sexual abuse. The House of Lords held that an employer can be vicariously liable for an intentional wrongful act committed purely for an employee’s own purposes, without any benefit to the employer, where there is a sufficient close connection between the work he had been employed to do and the acts in question. On the facts of the case the warden had been employed to care for children, and there was therefore a sufficient connection between his job and the acts of abuse in question. The sexual assaults had been committed at the employer’s premises while the employee was caring for the children in performing his duties. The requirement for a close connection between the work an employee is employed to do and the tort they commit is often referred to as the Lister principle. The Supreme Court in Mohamud v WM Morrison Supermarkets plc UKSC 11 provided guidance on the Lister principle. First, the court must ask what function or field of activities has been entrusted by the employer to the employee (ie what was the nature of their job). Secondly, the court must decide whether there was a sufficient connection between the position in which they were employed and their wrongful conduct to make it fair and just for the employer to be held liable. The ‘close connection’ test was recently considered again by the Supreme Court in WM Morrison Supermarkets plc v Various Claimants UKSC 12. The Court stated that the key question was whether the actions of the employee were so closely connected with acts they were authorised to do that, for the purposes of the liability of their employer to third parties, it may fairly and properly be regarded as done by them while acting in the ordinary course of their employment. In answering this question, the employee’s motives and whether they were doing their employer’s business or acting for their own personal reasons was an important consideration. 6.3.2.3 ‘Frolic’ cases If an employee is acting outside of their course of employment when they commit a tort, they are often said to be ‘on a frolic of their own’. Many of the cases concern employees whose work involves driving and who commit a tort while deviating from the route authorised by their employers. 148  Employers’ Liability Example Amy is employed to deliver garden furniture to customers of Gardenware Ltd. Between her second and third deliveries of the day, Amy departs from what would be the normal route and an accident occurs due to her negligent driving. The factors that will be relevant in determining whether Amy is ‘on a frolic of her own’ at the time of the accident include: The extent to which Amy has deviated from her authorised route. Is it a major departure (a new journey), or just a minor detour (a new route)? The purpose of her departure from the authorised route. If she was still going about her employer’s business at the time of the accident, she will not be ‘on a frolic of her own’. Example Having made the morning’s deliveries, instead of reporting back to his employer’s premises to collect further deliveries, a van driver sets off in the opposite direction to visit a relative in hospital. The employee cannot be said to be going about his employer’s business. The employee is not doing anything he was employed to do. Example A sales representative drives three miles off his route to get some lunch. Stopping for lunch is reasonably incidental to the employee’s work. Therefore, it will be a question of degree in each case whether an employee’s departure from their authorised route is sufficient to put them ‘on a frolic of their own’ and consequently outside the course of their employment. This involves considering two issues –​ geographical divergence and departure from the task set. The greater the degree of departure from one or both of these, the more likely it is that an employee will be ‘on a frolic of their own’. The section below considers the position of an employer who has been found vicariously liable and who has had to pay damages to someone as a result. 6.3.3 Employer’s indemnity Where an employer (or usually the employer’s insurers) has paid out compensation to someone, having been found vicariously liable, the case of Lister v Romford Ice & Cold Storage Co Ltd 1 All ER 125 is authority for the fact that the employer has a right at common law to claim an indemnity (ie its full loss) from the employee who actually committed the tort. The employer and employee are jointly liable, and because of this there is also now a similar right contained within the Civil Liability (Contribution) Act 1978. However, employers’ liability insurers have entered into an informal agreement not to pursue such claims for an indemnity unless there is evidence of collusion or wilful misconduct on the part of an employee. 149 Tort ACTIVITY Employers’ liability This follow-​up activity tests your understanding of the two areas of an employer’s liability which we have studied in this chapter. Please read the following scenario. Donald was an employee of Plasticware Ltd and worked in its factory as an operator of a machine that makes plastic cups. Plasticware had installed a fence to guard the dangerous moving parts on the plastic cup machine. When Donald first began to use the machine, he discovered that, although there was a fence guarding the dangerous moving parts on the plastic cup machine, the fence could easily be moved to one side. Donald found that this made his work on the machine much quicker. So, Donald developed the habit of moving the fence to one side when he was working on the machine. The foreman in charge of Donald’s work had noticed this practice. At first he told Donald that he must only use the machine with the fence in place. However, Donald ignored this instruction and continued to move the fence. Eventually, the foreman gave up ordering Donald to replace the fence when using the machine. One day Donald caught his hand in the machine and suffered severe injury, necessitating the amputation of his hand. What rights of claim (if any) does Donald have against Plasticware? You should consider the following areas of liability: 1. Plasticware’s liability in negligence as Donald’s employer. 2. Plasticware’s possible vicarious liability for the foreman’s negligence. Remember also to consider any possible defences. We suggest you consider each of these areas as separate claims under different headings. COMMENT Donald has two potential claims against Plasticware: common law claim in negligence; vicarious liability for foreman’s negligence. We will look at each in turn. Donald v Plasticware: Employer’s common law liability Plasticware owes Donald (an employee) a duty to take reasonable care for his safety at work. According to Lord Wright in Wilsons & Clyde Coal Co Ltd v English 3 All ER 628, this is a ‘three-​fold’ duty requiring the provision of: competent staff; adequate plant and equipment; safe system of working (and safe workplace). The duty to provide competent staff may arise here. Donald would have to show that Plasticware either knew that the foreman was not supervising the use of the machine, or that it ought to have known. Such knowledge would give rise to this duty. On the facts, if the duty arises it would appear to have been breached by the failure of Plasticware to do anything to ensure that the foreman did not give up reprimanding Donald. 150  Employers’ Liability The duty to provide a safe system of work is also relevant. The employer is under a duty to ensure that a safe system of work is in operation. Clearly, on the facts, as Donald is able to remove the fence around the machine, Plasticware is in breach of this duty by failing to achieve the standard of care to be expected of a reasonable employer in the circumstances. Plasticware has, therefore, breached the common law duty which it owes to Donald. Causation is established by applying the ‘but for’ test, and Donald’s injury is of a reasonably foreseeable type and not too remote. As regards defences, although consent rarely succeeds in the employment context, it might succeed against Donald, given that he has deliberately disobeyed his employer’s orders by removing the guard. It appears Donald could do his job with the fence in place, and so he will not be able to argue that his consent is negated due to economic pressure to work. If consent fails, contributory negligence is likely to succeed and Donald could find his damages substantially reduced. Donald v Plasticware: vicarious liability for tort of foreman Plasticware may be vicariously liable for the negligence of their foreman if Donald can establish three elements: the foreman was an employee; the foreman committed a tort; a tort was committed in the course of his employment. The foreman is clearly an employee. He has committed the tort of negligence. It is well established that work colleagues owe each other a duty of care in respect of the work they carry out, and by failing to supervise Donald properly the foreman is in breach of that duty. His breach has caused Donald’s injury and the injury was of a reasonably foreseeable type. The final issue in the context of vicarious liability is whether the tort was committed in the course of the foreman’s employment. The answer to this is clearly ‘yes’ –​he was carelessly performing the task he was employed to perform. Therefore, Plasticware will be vicariously liable for the foreman’s negligence unless the defence of consent could be successfully raised (by the foreman). In any event, contributory negligence will again be relevant to reduce Donald’s damages. Remember, on the facts of this exercise, that Donald’s employer might also be in breach of statutory health and safety regulations. However, since the Enterprise and Regulatory Reform Act 2013 came into force, such breach would not give rise to a civil claim for damages for breach of statutory duty. SUMMARY You began this chapter by establishing how the law of negligence impacts on the employer/​ employee relationship. You saw that an employer owes some well-​established duties to an employee, including an obligation to provide a safe system of work. This duty has been interpreted widely by the courts, and you saw the circumstances in which it extends to cover an employee who has suffered stress at work. 151 Tort In terms of case analysis, you saw that the other elements of a claim in negligence against an employer are the same as you studied in Chapter 2 and Chapter 3. Next you considered vicarious liability. This is an important principle in practice. You will appreciate from reading cases how often a claim is brought against an employer for torts committed by its employees. You should now understand the crucial concept of ‘course of employment’ which determines the scope of an employer’s vicarious liability. Finally, you should be able to explain the overlaps and differences between a claim in negligence and a claim against the employer using vicarious liability. Now that you have studied this chapter, you should be able to analyse a set of facts and be able to advise accurately on the various claims that may be available arising out of ‘employers’ liability’. Figure 6.2 Negligence: employers’ liability flowchart Is the claimant an employee of the defendant? YES. What type of injury NO. Consider a claim in has the claimant suffered? negligence in the normal way Physical injury Occupational stress The claimant is owed an Was injury to health through stress at work established duty of care. reasonably foreseeable (considering the Consider which aspect(s) of the nature and extent of the work done by the claimant duty are relevant on the facts and signs from the claimant themselves)? Duty to Duty to provide Duty to Duty to YES. Consider NO. There is no provide adequate provide a provide breach of duty claim in negligence competent plant and safe system a safe staff equipment of work workplace Was the defendant in breach of duty? YES. Consider NO. There is no causation liability in negligence Did the defendant’s breach cause damage to the claimant? YES. Consider NO. There is no defences liability in negligence 152  Figure 6.3 Vicarious liability flowchart Was the worker an employee of the defendant (or in a relationship akin to employment)? YES. Did the employee NO. The employer is commit a tort? not vicariously liable YES. Did the employee commit the NO. The employer is not vicariously liable tort in the course of their employment? Consider if any of the following apply Employee carried out Employee carried out Employee carried out Employee deviated from Employee committed a wrongful act which the a wrongful and unauthorised an act expressly prohibited the employer's instructions an intentional tort where there employer had authorised mode of carrying out an by the employer but which but was still carrying was a close connection authorised act furthered the employer business out the employer businesses between the work they were employed to do making it fair and just for the employer to be vicariously liable If YES to any of the above, the NO. The employer is employer is vicariously liable for the not vicariously liable tort committed by their employees 153 Employers’ Liability