Employer s Liability in a Practical Context

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1 Contents Table of Statutes Table of Secondary Legislation Table of Cases Chapter 1: Employer s Liability in a Practical Context 1.1 Introduction 1.2 The parties to an employer s liability claim 1.3 An injury at work 1.4 A cause of action 1.5 An overview of liabilities imposed on an employer 1.6 An employee s statutory duties 1.7 A reminder of the key principles of negligence 1.8 Vicarious liability in overview 1.9 Burden of proof 1.10 Defences 1.11 Damages in a personal injury claim 1.12 Summary Chapter 2: Who is an Employee? 2.1 Introduction 2.2 Contract of service contrasted with a contract for services 2.3 Where there is an express contract of employment 2.4 Where there is no formal employment contract The control test The integration or organisation test The multiple test 2.5 Unconventional working arrangements Personal service and the right to send a substitute Control and the autonomous worker Mutuality of obligation and the casual worker 2.6 A non-employee may be treated as an employee for vicarious liability 2.7 Employment status checklist 2.8 Summary Chapter 3: Vicarious Liability 3.1 An introduction to the principle of vicarious liability 3.2 The employee must have committed a tort 3.3 Stage 1 employer status Self-employed tortfeasors Borrowed employees Relationships akin to employment 3.4 Stage 2 acting in the course of employment Situations which are not in the course of employment Issues that do not prevent vicarious liability Unauthorised criminal and violent acts 3.5 Liability of the employee who has committed the tort 3.6 Summary i

2 Chapter 4: Causes of Action and Proof 4.1 An introduction to causes of action 4.2 Breach of statutory duty 4.3 A breach of employee s statutory duties 4.4 Negligence 4.5 Occupiers liability 4.6 Employer s liability for defective equipment 4.7 Taking over the cause of action following a claimant s death 4.8 Dependants cause of action 4.9 Contractual causes of action 4.10 Assault and battery 4.11 Issues which are merely helpful evidence 4.12 The six pack regulations Management of Health and Safety at Work Regulations Provision and Use of Work Equipment Regulations Manual Handling Operations Regulations Workplace (Health, Safety and Welfare) Regulations Personal Protective Equipment at Work Regulations Health and Safety (Display Screen Equipment) Regulations Summary Chapter 5: An Employer s Duty of Care to Employees 5.1 Introduction to the duty of care 5.2 The nature of the employer s common law duty of care Personal duty Individual duty The requirement of reasonableness 5.3 Reasonably competent staff 5.4 Adequate plant and equipment 5.5 Safe system of work (including safe premises) Factors when an employee works away from the employer s premises Factors in cases involving psychiatric harm Factors when a defendant was involved in a rescue 5.6 The relevance of HSE Guidance and Approved Codes of Practice 5.7 Summary Chapter 6: Causation and Burden of Proof 6.1 Introduction to causation and proof 6.2 Causation in fact The but for test 6.3 Causation where there are multiple causes or successive incidents Multiple causes: the material contribution and material increase in risk tests Successive causes of harm Suicide might break causation 6.4 Apportionment of responsibility between joint tortfeasors Divisible injury ii

3 6.4.2 Indivisible injury Seeking contribution when the defendant is wholly liable for indivisible injury The problem with a finding of divisible injuries 6.5 Breach of duty and causation in mesothelioma cases The difficulties in mesothelioma cases The causation rules in mesothelioma cases Pursuing the employer s insurer for mesothelioma claims Compensation schemes for mesothelioma 6.6 Causation in law: remoteness of damage Similar type of damage is not too remote Take your victim as you find him Nervous shock 6.7 Burden and standard of proof Exceptions to the balance of probabilities The reverse burden resulting from s11 Civil Evidence Act Res ipsa loquitur 6.8 Application of the law to a complex scenario 6.9 Summary Chapter 7: Damages and Deductions 7.1 Introduction 7.2 The measure of damages 7.3 Heads of special damages 7.4 Heads of general damages 7.5 Pain, suffering and loss of amenity (PSLA) 7.6 Future loss of earnings 7.7 Rules for other heads of loss 7.8 Deduction of state benefits from damages Exceptions where deductions are not made from damages 7.9 Damages in fatal accidents The estate Bereavement damages Loss of dependency The effect of a marriage on a dependency claim after death Claiming loss of dependency for a dependant who has a short life expectancy 7.10 Damages which are rarely relevant to employer s liability claims Minimal awards Exemplary damages 7.11 Summary Chapter 8: Defences Based on Actions by the Employee 8.1 Introduction 8.2 Voluntary assumption of risk (consent) Knowledge Voluntary assumption Acceptance Cases involving a third party s breach: consent may be valid 8.3 Contributory negligence as a partial defence The effect of contributory negligence iii

4 8.3.2 The elements of contributory negligence Proving contributory negligence 8.4 Examples of contributory negligence in workplace accidents 8.5 A reality check on defendants enthusiasm 8.6 When an employee s contributory acts are also the employer s negligent acts 8.7 Summary of voluntary assumption of risk 8.8 Summary of contributory negligence Chapter 9: Limitation Periods 9.1 The statutory bar: limitation period 9.2 General rules on limitation 9.3 When does knowledge start the limitation clock? 9.4 Limitation when the injured person has died 9.5 Defendant s limitation for claiming a contribution 9.6 Disapplying limitation When proceedings had to be re-issued 9.7 Assault is a personal injury with a three-year limitation? 9.8 Summary Chapter 10: Pursuing a Claim Against an Employer 10.1 Introduction 10.2 The aims of the EL/PL Protocol 10.3 When to follow the EL/PL Protocol 10.4 The process in the EL/PL Protocol An overview of stages 1, 2 and Stage 1: issuing the claim Stage 2: the admission of liability and settlement Stage 3: a hearing for damages to be assessed The Stage 3 paper hearing Negotiating The risk of limitation expiring during Stages 1 and Differences with public liability claims 10.6 Leaving the Protocol and Portal 10.7 Summary Chapter 11: Funding Cases and Recovering Legal Costs 11.1 Funding and recovery of legal costs 11.2 Funding alternatives for claimants Legal expenses insurance Damages-based agreements Conditional fee agreements 11.3 Restrictions on funding arrangements Funding limits in personal injury cases Funding limits with mesothelioma Funding limits in cases without a personal injury or mesothelioma issue 11.4 Restrictions on recovery of costs Qualified one-way costs shifting (QOCS) Restrictions on recoverability in a DBA iv

5 Restrictions on recoverability in a CFA The challenges of restrictions on recoverability of costs Fixed costs under the EL/PL Protocol (claims issued on or after 31 July 2013) Fixed costs rates (EL/PL Protocol) Disbursements Costs consequences of failing to beat a Part 36 offer Exceptional cases where fixed costs will not apply 11.5 What about costs if the claim leaves the Protocol? Cases which leave the EL/PL Protocol through fault of a party Costs in mesothelioma and disease cases which leave the EL/ PL Protocol Other cases which leave the EL/PL Protocol fixed costs 11.6 Summary Answers to Self-assessment Questions Appendix Index v

6 2015 Copyright CILEx Law School Limited All materials included in this CLS publication are copyright protected. All rights reserved. Any unauthorised reproduction or transmission of any part of this publication, whether electronically or otherwise, will constitute an infringement of copyright. No part of this publication may be lent, resold or hired out for any purpose without the prior written permission of CILEx Law School Ltd. WARNING: Any person carrying out an unauthorised act in relation to this copyright work may be liable to both criminal prosecution and a civil claim for damages. This publication is intended only for the purpose of private study. Its contents were believed to be correct at the time of publication or any date stated in any preface, whichever is the earlier. This publication does not constitute any form of legal advice to any person or organisation. CILEx Law School Ltd will not be liable for any loss or damage of any description caused by the reliance of any person on any part of the contents of this publication. Published in 2015 by: CILEx Law School Ltd College House Manor Drive Kempston Bedford United Kingdom MK42 7AB British Library Cataloguing in Publication Data A catalogue record for this manual is available from the British Library. ISBN

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