Chapter 8 Guidance on answering the questions in the book

Employers' liability and non-delegable duties

Question 1

The general rule is that a defendant is not liable for the negligence of an independent contractor.

Explain the exceptional circumstances in which such liability would be imposed.

Outline

  • As with vicarious liability (Chapter 9) an employer is not normally liable for the torts of an independent contractor. Common law non-delegable duties are an exception to the general rule that a defendant is not liable for the negligence of an independent contractor: a non-delegable duty based on the contract of employment is owed by an employer to an employee; a non-delegable duty arises where an independent contractor is engaged in an extra-hazardous activity Honeywill & Stein Ltd v Larkin Bros Ltd (1934) and where the work of an independent contractor is carried out is on or adjoining the highway Tarry v Ashton (1876).
  • Non-delegable duties of care are inconsistent with the fault-based principles in negligence, but in Woodland v Essex CC (2013) the Supreme Court ruled that in exceptional cases where it is fair, just, and reasonable to protect those who are inherently vulnerable such duties would be imposed.
  • In Woodland Lord Sumption pointed out that if the highway and hazard cases are put to one side, a non-delegable duty of care will arise in cases where:
  • The claimant is a patient or a child, or is especially vulnerable or dependent on the protection of the defendant.
  • The relationship between the claimant and the defendant is one which places the claimant in the actual care of the defendant and the defendant assumes a positive duty to protect the claimant from harm.
  • The claimant has no control over how the defendant chooses to perform those obligations—that is, whether personally or through employees or through third parties.
  • The defendant has delegated to a third party an integral part of the positive duty assumed towards the claimant.
  • The third party has been negligent in performing the very function assumed by the defendant and delegated to him.

Question 2

Amjid was Head of Human Resources at Tara Finance plc. The increasingly competitive nature of the business and a reduced workforce meant that Amjid had to work excessively long hours. Amjid’s colleagues noticed that he frequently remained in the office late into the evening to cope with his workload and that he sometimes came in at the weekend. It was apparent to his colleagues that Amjid was suffering from extreme work-related stress but because Amjid feared losing his job he did not inform his manager about his stress.

Advise Amjid who has now suffered a complete mental breakdown and is unable to work.

Outline

  • The question here is whether Amjid’s stress was foreseeable. Did Tara Finance know or ought to have known that Amjid was susceptible to psychiatric injury as a result of stress at work?
  • If Amjid’s stress was foreseeable then Tara Finance is under a duty to take extra care to avoid such harm but an employer is entitled to assume that an employee can withstand normal pressures of job unless he knows of some vulnerability Hatton v Sutherland (2002).
  • The key question is whether this kind of harm to this particular employee was reasonably foreseeable. In Walker v Northumberland CC (1995) the claimant’s first nervous breakdown was unforeseeable but when he returned to work the risk to his mental health was reasonably foreseeable and the employer was liable.
  • What was reasonably foreseeable here depends on what Tara Finance knows or ought reasonably to know about Amjid’s work-related stress. The employer must have prior knowledge of the problem in order for a claim to succeed as foreseeability of stress is identified as the key determinant in any claim.
  • Amjid has not informed his manager of his stress. In Hartman v South Essex NHS Trust (2005), applying the Hatton principles, the Court of Appeal held that the employer could not be fixed with knowledge of the employee’s vulnerability as it was not reasonably foreseeable to her employers that she would suffer psychiatric injury.
  • It is apparent to Amjid’s colleagues that he is stressed and anxious. In these circumstances Amjid may argue that Tara Finance ought reasonably to have known about his work-related stress.