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 2.4.1 The control test 2.4.2 The integration or organisation test 2.4.3 The multiple test 2.5 Unconventional working arrangements 2.5.1 Personal service and the right to send a substitute 2.5.2 Control and the autonomous worker 2.5.3 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 3.3.1 Self-employed tortfeasors 3.3.2 Borrowed employees 3.3.3 Relationships akin to employment 3.4 Stage 2 acting in the course of employment 3.4.1 Situations which are not in the course of employment 3.4.2 Issues that do not prevent vicarious liability 3.4.3 Unauthorised criminal and violent acts 3.5 Liability of the employee who has committed the tort 3.6 Summary i
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 4.12.1 Management of Health and Safety at Work Regulations 1999 4.12.2 Provision and Use of Work Equipment Regulations 1998 4.12.3 Manual Handling Operations Regulations 1992 4.12.4 Workplace (Health, Safety and Welfare) Regulations 1992 4.12.5 Personal Protective Equipment at Work Regulations 1992 4.12.6 Health and Safety (Display Screen Equipment) Regulations 1992 4.13 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 5.2.1 Personal duty 5.2.2 Individual duty 5.2.3 The requirement of reasonableness 5.3 Reasonably competent staff 5.4 Adequate plant and equipment 5.5 Safe system of work (including safe premises) 5.5.1 Factors when an employee works away from the employer s premises 5.5.2 Factors in cases involving psychiatric harm 5.5.3 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 6.2.1 The but for test 6.3 Causation where there are multiple causes or successive incidents 6.3.1 Multiple causes: the material contribution and material increase in risk tests 6.3.2 Successive causes of harm 6.3.3 Suicide might break causation 6.4 Apportionment of responsibility between joint tortfeasors 6.4.1 Divisible injury ii
6.4.2 Indivisible injury 6.4.3 Seeking contribution when the defendant is wholly liable for indivisible injury 6.4.4 The problem with a finding of divisible injuries 6.5 Breach of duty and causation in mesothelioma cases 6.5.1 The difficulties in mesothelioma cases 6.5.2 The causation rules in mesothelioma cases 6.5.3 Pursuing the employer s insurer for mesothelioma claims 6.5.4 Compensation schemes for mesothelioma 6.6 Causation in law: remoteness of damage 6.6.1 Similar type of damage is not too remote 6.6.2 Take your victim as you find him 6.6.3 Nervous shock 6.7 Burden and standard of proof 6.7.1 Exceptions to the balance of probabilities 6.7.2 The reverse burden resulting from s11 Civil Evidence Act 1968 6.7.3 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 7.8.1 Exceptions where deductions are not made from damages 7.9 Damages in fatal accidents 7.9.1 The estate 7.9.2 Bereavement damages 7.9.3 Loss of dependency 7.9.4 The effect of a marriage on a dependency claim after death 7.9.5 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 7.10.1 Minimal awards 7.10.2 Exemplary damages 7.11 Summary Chapter 8: Defences Based on Actions by the Employee 8.1 Introduction 8.2 Voluntary assumption of risk (consent) 8.2.1 Knowledge 8.2.2 Voluntary assumption 8.2.3 Acceptance 8.2.4 Cases involving a third party s breach: consent may be valid 8.3 Contributory negligence as a partial defence 8.3.1 The effect of contributory negligence iii
8.3.2 The elements of contributory negligence 8.3.3 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 9.6.1 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 10.4.1 An overview of stages 1, 2 and 3 10.4.2 Stage 1: issuing the claim 10.4.3 Stage 2: the admission of liability and settlement 10.4.4 Stage 3: a hearing for damages to be assessed 10.4.5 The Stage 3 paper hearing 10.4.6 Negotiating 10.4.7 The risk of limitation expiring during Stages 1 and 2 10.5 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 11.2.1 Legal expenses insurance 11.2.2 Damages-based agreements 11.2.3 Conditional fee agreements 11.3 Restrictions on funding arrangements 11.3.1 Funding limits in personal injury cases 11.3.2 Funding limits with mesothelioma 11.3.3 Funding limits in cases without a personal injury or mesothelioma issue 11.4 Restrictions on recovery of costs 11.4.1 Qualified one-way costs shifting (QOCS) 11.4.2 Restrictions on recoverability in a DBA iv
11.4.3 Restrictions on recoverability in a CFA 11.4.4 The challenges of restrictions on recoverability of costs 11.4.5 Fixed costs under the EL/PL Protocol (claims issued on or after 31 July 2013) 11.4.6 Fixed costs rates (EL/PL Protocol) 11.4.7 Disbursements 11.4.8 Costs consequences of failing to beat a Part 36 offer 11.4.9 Exceptional cases where fixed costs will not apply 11.5 What about costs if the claim leaves the Protocol? 11.5.1 Cases which leave the EL/PL Protocol through fault of a party 11.5.2 Costs in mesothelioma and disease cases which leave the EL/ PL Protocol 11.5.3 Other cases which leave the EL/PL Protocol fixed costs 11.6 Summary Answers to Self-assessment Questions Appendix Index v
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