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Every Tuesday, Thursday and Friday evening there is a drop-in centre for young people between the ages of 11-16 at Kings Wharf, a local community centre. It is run by a team of youth workers employed by James.
The best way to answer this question is to work through each of the potential claimants one by one. Use headings. The key issue here is whether James is liable either personally or vicariously for the actions of his employees (You should assume, unless you are told otherwise that the person described as the ‘employer’ is the employer, though you will still need to consider whether they are in a relationship ‘akin to employment’). You are asked to advise the relevant parties and so your answer should be focused accordingly. Avoid lengthy introductions. A few lines explaining how your answer will be structured can be helpful where the issues are complicated, but otherwise introductions to problems are of limited value.
Harry
Harry is a youth counsellor at the centre. He is busy setting up the hall for the evening’s activities when he slips on a puddle of greasy water from a leaking radiator and breaks his wrist. He had reported the leak to his supervisor, Dougie, over a week earlier and it had not been fixed.
This is a classic case of a non-delegable duty of care. James owes Harry a duty to ensure a safe system of working. Although it appears that the performance of this duty has been discharged to Dougie, James continues to be legal responsible (Wilsons & Clyde Coal Co v English [1938]). You should outline the four components of an employer's non-delegable duty, comprising the provision of:
- competent staff;
- adequate material;
- a proper system of working (including effective supervision); and
- a safe workplace.
The key issue here is the requirement to maintain a safe workplace. However, this does not amount to a requirement to ensure that the place of work is COMPLETELY safe. We do not know why the leak has not been fixed and so it is not clear if James has breached his duty of care. You should state what factors the courts will take into account when determining if there has been a breach, however, do not invent facts. Causation and remoteness still need to be established (Chapter 9) – this is easily done.
There may also be a vicarious liability claim if Dougie has been negligent in his failure to maintain the leaking radiator. (Vicarious liability is discussed in relation to Tom’s potential claim below – see Chapter 20).
Danny
Danny works in the centre kitchen, making snacks and drinks for the young people. He is using a food processor to make some cookies when fragment of metal is thrown off by the machine and enters his eye.
There are three possible claims here: a breach of James’ non-delegable duty of care and a claim under the Employers' Liability (Defective Equipment) Act 1969.
As you have already discussed James’ non-delegable duty of care in relation to Harry’s claim above you need not go into detail here, however you should state whether they are likely to be in breach of this duty. The key issue here is the provision of adequate material.
What about a claim using the Employers' Liability (Defective Equipment) Act 1969? Provided the fault could be attributed to a third party such as the manufacturer, this is probably worth a go. Section 1 provides that where an employee is injured in the course of his/her employment in consequence of a defect in equipment provided by the employer for the purposes of the employer's business, and the defect is due (wholly or partly) to the fault of a third party, then the injury will be attributed to the fault of the employer. Danny must therefore show:
- The defect in the equipment caused the accident; and
- The defect was (wholly or partly) caused by the fault of a third party (usually the manufacturer).
While the first of these is straightforward, the facts are unclear in relation to the second. As always, do not make up facts. Rather simply state the law and discuss what further information you would need to be able to come to a conclusion. Then move on.
Finally you need to consider causation (which is easily established here) and the applicability of any relevant defences. Could Danny be considered to be contributorily negligent (Chapter 10)?
Tom
Tom, a youth worker at the centre and Harry’s partner, sees him fall. Frustrated by Dougie’s lack of action he punches him on the nose.
The issue here is whether James is vicariously liable for Tom’s actions. Vicarious liability it discussed in chapter 20. The relevant section here is 20.4. As usual, you should state the law and then apply it to the facts as given. The following conditions must be met:
- There must be an employer-employee relationship (see Catholic Care Welfare Society v Institute of Brothers of Christian Schools [2012]);
- The employee must have committed a tort (Tom has committed a battery (and possibly an assault) against Dougie; and
- The tort must be committed while the employee was acting in the course of employment.
The test in relation to the latter is one of 'close connection' (Lister v Hesley Hall Ltd [2001]) as applied in the more recent case of Mohamud v WM Morrison Supermarkets plc [2016].
Conclusion
Finally, avoid lengthy conclusions: a crisp summary of the outcome of your analysis is sufficient.