Employers' Liability

Introduction

This chapter focuses on **employers' liability**. It is an extremely practical topic, as employee injury claims are among those most frequently brought before the courts. The **Employers' Liability (Compulsory Insurance) Act 1969** requires the majority of employers to hold insurance against such claims, so an employee will know that bringing proceedings is not a pointless exercise and that the employer will be able to meet any damages awarded. **Employers' liability** is the employer's **personal, non-delegable duty** with respect to the physical safety of the employee; **vicarious liability**, by contrast, is where the employer is liable to a **third party** for the tort of the employee.

Assessment focus

For SQE1 FLK1 you must be able to apply the **employer's common law duty** to realistic client scenarios. The duty, established in **Wilsons & Clyde Coal Co Ltd v English [1938] AC 57**, comprises the provision of **competent staff**, **adequate plant and equipment**, a **safe system of work** and a **safe place of work**. You should be able to identify a **breach of duty**, work through **factual and legal causation** (the 'but for' test and the 'material contribution' approach), assess **remoteness** (reasonable foreseeability) and analyse the key **defences** of **volenti** and **contributory negligence**. Questions are single best answer questions (SBAQs); you must **apply** the principles rather than merely recall them. This is a closed-book assessment.

Study tips

1) Memorise the **four limbs** of the employer's common law duty (competent staff; adequate plant/equipment; safe system of work; safe place of work) and the leading authority for each. 2) Remember the duty is **personal and non-delegable** — an employer cannot escape liability by entrusting performance to an apparently competent third party. 3) Note that the employer must take the employee's **personal characteristics** into account (**Paris v Stepney Borough Council [1951]** — the one-eyed workman). 4) On causation use the **'but for' test**, falling back on the **'material contribution'** approach where there are multiple causes. 5) On defences: **volenti rarely succeeds** in the employment context (power imbalance); **contributory negligence** is the far more common and effective partial defence.