LEVEL 4 - UNIT 2 – THE LAW RELATING TO EMPLOYERS’ LIABILITY
SUGGESTED ANSWERS – JUNE 2016
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the June 2016 examinations. The suggested answers do not for all questions set
out all the points which students may have included in their responses to the
questions. Students will have received credit, where applicable, for other points
not addressed by the suggested answers.
Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.
SECTION A
1.
Prior to the 2013 Act, an action for breach of statutory duty lay in relation
to breaches of regulations made under Section 47 of the Health and Safety
at Work Act 1974. Pursuant to the 2013 Act such actions will not normally
lie for claims arising after 30 September 2013. Claims must therefore be
brought in negligence at common law.
2.
Vicarious liability attaches to a tort committed by an employee in the
course of employment. Lister v Hesley Hall Ltd (2001) extended liability to
deliberate wrongdoing where the acts were closely connected with the
employment and where it is fair and reasonable to do so. This widened the
scope of vicarious liability. For example, it allowed for deliberate
wrongdoing carried out purely for the employee’s own purposes to attract
vicarious liability in certain situations.
3.
The non-delegable common law duty of the employer, as explained in
Wilsons and Clyde Coal Company v English (1938), is to provide a safe
system of work, safe plant and equipment, and competent fellow
employees.
4.
These factors will include the magnitude and likelihood of the risk, the cost
of taking precautions, the importance of the objective being pursued, e.g.
Watt v Herts CC (1954), any special skill the activity requires and the
characteristics of the claimant, e.g. Paris v Stepney LBC (1951).
5.
Where the ‘material increase in risk’ test applies the claimant can
successfully establish causation if he/she can show that the defendant’s
breach of duty caused a material increase in the risk of harm to the
claimant. The test applies in cases where scientific uncertainty makes it
impossible for the claimant to establish that ‘but for’ the defendant’s
breach the claimant would not have suffered harm (e.g. Sienkiewicz v
Greif (2011)). It applies where there is a single causative agent to which
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the claimant has been exposed in different circumstances e.g. McGhee v
NCB (1973); Fairchild v Glenhaven (2003). It applies in cases of noncumulative or indivisible harm. In such cases, since any exposure can
cause the harm, each exposure increases the risk of that harm and this is
deemed to satisfy the legal requirement for causation.
6.
The principal heads are loss of earnings to the date of trial and the cost of
medical treatment and other forms of care for the same period.
7.
The basic limitation period is three years from the later of the date when
the harm occurred and the date when the claimant had knowledge: s.11
Limitation Act 1980. Knowledge is defined by s.14 of the Act as knowledge
that the harm was significant, and resulted from breach of duty by a
known defendant. This period can be extended pursuant to s.33 of the Act
if it would be equitable to do so having regard to the impact on the
defendant of extending the period.
8.
The claimant must file in the electronic portal a Claim Notification Form
(CNF) containing the prescribed information concerning the claim. This is
addressed to the defendant and/or his insurer. The defendant must
acknowledge the CNF promptly, and then respond either with an
admission or denial of liability or objection to the applicability of the portal
to the claim. The claim passes to Stage Two if liability is admitted,
otherwise it exits the portal.
9.
Recoverable costs are scheduled in CPR 45. There are three value bands
for cases valued at under £5000, under £10,000 and under £25,000
respectively. The amounts payable are specified in relation to the three
key stages of the action, namely settlement before proceedings,
settlement after proceedings and disposal at trial. The amounts are partly
specified sums and partly expressed in terms of a percentage of damages.
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SECTION B
Scenario 1 Questions
1.
Gurpal needs to show that Daleside was in breach of the duty of care
which it owed to him, and that the breach caused the damage which he
suffered.
Content of duty: The common law non-delegable duty is a duty to provide
a safe system of work, safe plant and equipment, and safe fellow workers:
Wilsons and Clyde Coal Company v English (1938). The final element is of
limited significance because of the subsequent expansion of vicarious
liability but will apply to a manager, such as Margaret. The duty to provide
a safe system of work includes both the design of an appropriate system
and ensuring that it is applied and operated. For example, in Clifford v
Charles H Challen (1951) an employer notionally provided a system for
preventing dermatitis, but it was not operated, and the employer was
liable.
Breach of duty: The standard is that of the reasonable employer. Daleside
appears to have devised a suitable system, in that Gurpal was instructed
to use protective gloves, and these were available. It appears that that
system was not effectively operated, since Margaret saw Gurpal working
without gloves, and took no action. This does not appear to be the action
of a reasonable employer, given the risks posed by the detergent.
In addition, Daleside failed to ensure that Gurpal was told that the new
detergent was more caustic. This is a further breach of duty.
Causation of damage: There appears to be no doubt that the failure by
Daleside to insist on the use of safety precautions, and the failure to warn
regarding the new more caustic detergent, have caused harm to Gurpal.
Conclusion: Therefore, Daleside is likely to be liable to him (but see further
below as to the extent of the harm for which Daleside is liable (Q2) and
possible defences (Q3)).
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2.
Daleside appears to be liable to Gurpal for the initial injury. In order for
him to claim for his further injuries resulting from the fall, it must be
shown that the breach of duty was the cause of Gurpal’s harm. Initially the
‘but-for’ test is used to establish whether there is a causal link between
the breach of duty and the harm: Barnett v Kensington (1968). It is clear
that ‘but for’ the breach of duty Gurpal’s further fall and consequent
amputation would not have happened.
However, even if the ‘but for’ test is satisfied, a defendant will escape
liability if a new intervening act breaks the chain of causation. In this case,
Daleside may seek to argue that harm resulting from the fall was not
caused by it because Gurpal’s action in undertaking activities which he was
not fit to undertake breaks the chain of causation (McKew v Holland
(1969)). The courts now appear less willing to accept that an action by the
claimant which resulted in him suffering further harm does break the chain
of causation e.g. Spencer v Wincanton (2009). It is therefore unlikely that
the court will regard Gurpal’s determination to get on with his life as best
he can as breaking the chain of causation.
However, even where it is established that the defendant’s breach did
cause the claimant’s harm, the defendant will not be liable for damage
which is too remote. On the facts, it is unlikely that an issue of remoteness
will arise. The courts generally treat the foreseeability of harm in broad
categories, and while the specific nature of the personal injury resulting
from the fall is not foreseeable, personal injury in general terms is. So,
overall, Daleside will be liable to Gurpal – subject to any deduction for
contributory negligence (see Q3).
3.
Contributory negligence is a partial defence. Where harm is caused partly
by the fault of the claimant and partly by the fault of another the court has
power to reduce the damages to the extent that is just and equitable to do
so: s.1 Law Reform (Contributory Negligence) Act 1945. The contribution
may be to the incident itself or to the consequences.
As to the dermatitis: In this case Gurpal knew that he should wear
protective gloves, and failed to do so. This failure appears to have
contributed to his developing dermatitis. Assuming the court does not
regard his failure as so trivial as not to qualify as contributory negligence,
his damages in respect of the dermatitis will be reduced. Given that Gurpal
was not warned that the new detergent was more caustic, and that the
primary responsibility for ensuring that safety clothing was worn lay with
the employer, and we have clear evidence that a manager was aware that
it was not being used and did nothing, it is unlikely that the proportion of
contributory negligence will be substantial.
As to the initial knee injury: In relation to the initial chemical burn to his
knee there is no evidence that Gurpal was at fault.
As to the further consequences of the knee injury (later fall and
amputation): As noted above, it is likely that the court will consider the fall
as not breaking the chain of causation. However, it will consider whether
Gurpal was acting unreasonably, and creating an unnecessary risk of harm
to himself by continuing with activities such as dog walking when he was
aware of the problem with his knee giving way. If it is held that Gurpal has
acted unreasonably, this will be a further instance of contributory
negligence, and as a result the proportion of liability for the consequences
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of the fall will need to be calculated separately from that for the other
heads of damage.
4.
Having regard to the nature of the injuries, there will undoubtedly be a
substantial claim for special damages. This will include the cost of any
private medical treatment to the date of the trial and the cost of care
provided to Gurpal up to the date of trial, including an allowance for care
provided by his family. It will also include his net loss of earnings until trial
subject to a deduction for CRU benefits.
There will also be a claim for general damages. There will clearly be a
substantial claim for pain and suffering which will be assessed against the
Judicial Studies Board guidelines and in relation to existing awards for
similar injuries. There will clearly also be a substantial award for loss of
amenity having regard to Gurpal’s loss of mobility. Gurpal will also be
entitled to the future cost of care and any necessary medical or
physiotherapy treatment, and to loss of future earnings. It seems clear
that Gurpal has no residual earning capacity to set against this item. It will
be calculated by establishing his net annual earnings and applying an
appropriate multiplier which will reflect the number of years before his
anticipated retirement adjusted to allow for the vicissitudes of life.
5.
The Portal procedure established by the Pre-Action Protocol for Low Value
Personal Injury (Employers’ Liability/Public Liability) claims is intended for
cases valued at less than £25,000. The extent of Gurpal’s injuries,
together with the likely claim for future loss of earnings, means that this
case will be valued at substantially more than £25,000. In addition it is
clear that there are issues of contributory negligence, and the Portal is not
appropriate for such cases. On both these grounds the Portal is not
appropriate.
Scenario 2 Questions
1.
Vicarious liability arises where an employee commits a tort in the course of
his employment. On the facts, it is accepted that Bruce did commit a tort.
However, Fatima may argue first, that Bruce was not an employee and
second, even if he was an employee, he was not acting in the course of his
employment.
Was Bruce an employee? While the most important factor in determining
whether someone is an employee or independent contractor is the extent
of control which the employer has, there is no single factor which is
decisive, and it is necessary to look at all the circumstances of the case to
determine whether the relationship that exists is that of an employee
working under a contract of service: e.g. Ready Mixed Concrete (South
East) v MPNI (1968). The characterisation of the relationship by the
parties is not conclusive: e.g. Ferguson v Dawson and Partners
(Contractors) Ltd (1976).
In this case, Bruce appears to be under the control of Fatima to a
significant extent, and she provides most of the tools and equipment. In
practice Bruce works only for Fatima and is paid at an hourly rate. While in
theory he can employ others to do the work, this does not happen in
practice, nor does he work for anyone else. The factors pointing to Bruce
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being an employee appear more cogent than those pointing in the
opposite direction.
If Bruce was an employee, was he acting in the course of his employment?
Bruce has contravened Fatima’s instruction to get a qualified electrician to
do the work. However, case law has shown that actions in disobedience of
orders may still be considered as within the scope of employment if they
can be seen as an unauthorised mode of performing the employment
contract. See e.g. LCC v Cattermoles (1953) (unqualified driver forbidden
to drive); Kay v ITW (1968) and Rose v Plenty (1976). It appears that
Fatima may well be vicariously liable for Bruce’s torts.
2.
On the assumption that Fatima is vicariously liable, it is clear that but-for
Bruce's negligence, Hoi-Yee would not have required medical treatment.
See e.g. Barnett v Kensington (1969). Harm resulting from non-negligent
deficiencies in medical treatment is not too remote: Hogan v Bentinck
(1949). Fatima may argue that the medical negligence has broken the
chain of causation and that she is therefore not liable. More recent case
law indicates that an original tortfeasor will remain liable even if there is
subsequent medical negligence, although the courts can apportion liability
between the tortfeasors by way of contribution: Rahman v Arearose
(2000); Webb v Barclays Bank (2002).
3.
Hoi-Yee’s estate will have a claim for damages in relation to pain suffering
and loss of amenity for the period between the accident and her death,
and also for special damages in relation to that period: s.1 Law Reform
(Miscellaneous Provisions) Act 1934.
Dalian, but not Mae Ling, will have a claim for bereavement under s.1A
Fatal Accidents Act 1976.
Funeral expenses can be recovered either by the estate under the 1934
Act or under the 1976 Act.
The Fatal Accidents Act 1976 also allows for claims by Hoi–Yee’s
dependants. As Hoi-Yee was the sole breadwinner, there will be a
substantial dependency. Damages will be based upon the amount of Hoi–
Yee’s annual earnings, but money spent by Hoi-Yee on herself will be
deducted. The court will determine the length of time for which each
claimant would have remained dependent on Hoi–Yee. So far as Mae Ling
is concerned, her dependency will cover the time until she would be
expected to become economically independent. So far as Dalian is
concerned, his dependency will cover the period during which Hoi-Yee
would be expected to have been working.
4.
(a)
This claim appears to be suitable in respect of its value and other
features for the electronic portal procedure established by the Pre –
Action Protocol for Low Value Personal Injury (Employers Liability /
Public Liability) Claims. To commence the pre – action protocol
procedure the claimant prepares an electronic Claim Notification
Form (CNF), containing details of the parties, details of the injuries,
any rehabilitation information, details of the accident and the basis
of liability.
(b)
The
defendant
must
issue
an
immediate
electronic
acknowledgement of the CNF. Assuming liability is admitted, she
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must respond to the CNF with an admission within 30 days. The
defendant must also obtain a CRU certificate in relation to relevant
benefits, the amount of which will be deducted from the claim and
reimbursed to the public authorities. In addition, the defendant
must also provide a certificate of earnings.
(c)
5.
At this stage, the claimant must serve on the defendant the Stage 2
Settlement Pack Form containing a medical report (which the
claimant will have already obtained), relevant evidence of pecuniary
losses, evidence of disbursements (for example the cost of any
medical report), any non-medical expert report, any medical
records/photographs served with medical reports; and any witness
statements. The defendant is allowed a period of time to consider
this material, but there is then an expectation that the parties will
engage in negotiation.
Stage 1 and Stage 2 costs are fixed under Part 45 CPR. As it appears that
the claim exceeds £10,000 it will fall into the higher band for Stage 2 fixed
costs. If Tamara beats the defendant’s sealed offer she will also recover
Stage 3 fixed costs including an advocate’s fee, as there will have been a
hearing. These will all be paid stage by stage.
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