Employers' Liability and Vicarious Liability
Two distinct liabilities appear here, and examiners withhold marks from candidates who merge them: the employer's own personal duty to his workforce, and vicarious liability for wrongs of employees towards third parties.
The employer's personal duty
Wilson and Clyde Coal Co v English established four non-delegable duties:
- Competent staff: safe recruitment and supervision.
- Safe plant and equipment: proper maintenance and inspection.
- Safe premises: including safe access and egress.
- Safe system of work: proper instruction, warning and supervision. The duty is personal, so an employer cannot escape by entrusting it to an independent contractor. Breach of statutory duties, such as factories and safety legislation, may also found an action where the statute intends to protect this class of worker.
Vicarious liability
The claimant must show a tort, committed by a tortfeasor who is an employee, in the course of employment.
- Employment status: the control test is supplemented by integration and multiple-factor tests (Ready Mixed Concrete v Minister of Pensions). A genuinely independent contractor is not an employee, and the employer is generally not liable for him (Barclays Bank v Various Claimants).
- Course of employment: the classic Salmond test asks whether the act was authorised, or an unauthorised way of doing an authorised act. The modern close-connection test (Lister v Hesley Hall; Mohamud v WM Morrison) asks whether the wrongful act is so closely connected with what the employee was employed to do that it is fair and just to hold the employer liable.
- Limits: a complete frolic of his own takes the employee outside employment, and the mere opportunity to commit a wrong, without more, does not suffice (WM Morrison v Various Claimants). In Ghana the Civil Liability Act 1961 covers employers' liability for servants, and the State Proceedings Act 1998 (Act 555) governs actions against the State for its servants.
Worked example
A delivery driver, on his route, parks to make a delivery and assaults a customer who complains about a delay. The employer is vicariously liable: the confrontation arose out of the very task entrusted to him and was closely connected with it (Mohamud). Contrast a driver who abandons his route entirely to pursue a private grievance - a frolic, for which the employer is not liable.
Traps that cost marks
Confusing personal and vicarious liability; assuming a job title settles employment status; treating close connection as a licence to hold employers liable for anything an employee does; and forgetting the frolic limitation.