The following question addresses the issues of employer’s personal liability and vicarious

liability. An employer may be vicariously liable for an injury caused to his employee due to
the tort of another employee and the employer also owes a personal non-delegable duty of
care to take steps to ensure the safety of his employees in the workplace.

The personal and non-delegable duty of the employers comes from the case of Wilsons &
Clyde Coal v English1 where the four elements through which an employer’s duty was
analysed were determined as: competent staff, adequate material, proper system of working
and safe environment. Based on these criteria, an employer is under a duty to ensure a
reasonably safe system of working and to give employees warnings and notices in proper
cases (Speed v Thomas Swift & Co Ltd). 2 Additionally, adequate plant and equipment not
only includes provision of necessary equipment but also inspection, maintenance and proper
safety protection (Davie v New Merton Board Mills Ltd). 3 It can be observed that in this
question both these duties seem to have been neglected by the employee as Jeff’s supervisor
tells him to set the explosives without safety measures as they were hard pressed for time.
However, employer’s personal liability is not a strict liability, fault has to be proven and even
foreseeable damage may sometimes not give rise to liability if the employer has done all that
is required in the circumstances (Latimer v AEC). 4 In this question though, it is clear that the
employers did not take the necessary safety measures and hence they can be held liable.

The employers can also be held vicariously liable for the actions of Jack. For vicarious
liability to be imposed, three conditions need to be satisfied: a tort must be committed by an
employee, there must be an employee-employer relationship and the tort must have been
committed within the course of employment. The potential tort here would be the tort of
negligence. It is clear from the given facts that Jeff and Jack are both employees and not
independent contractors, applying the economic reality test laid down in Ready-mixed
Concrete Ltd v Minister of Pensions.5 In this case, instructing the employees regarding the
way the explosives were to be set was clearly part of the work that was to be performed by
Jack. This implied that the close connection test (Lister v Hesley Hall)6 was satisfied and
there was sufficient connection between the employment and tort committed so that it would
be fair to hold the employer vicariously liable. It can also be seen that the employee cannot
be considered as to have been on a frolic of his own (Joel v Morison)7 since the employers
had given express instructions to speed up the process.

Thus, Jeff can sue Dodgy and Dave based on employers’ personal liability as well as
employers’ vicarious liability for the tort committed by Jack. Jack can also be held personally
liable for the tort if Jeff decides to sue him.

1
Wilsons & Clyde Coal v English [1938] AC 57, [1937] UKHL 2.
2
Speed v Thomas Swift & Co Ltd [1943] KB 557.
3
Davie v New Merton Board Mills Ltd [1959] AC 604 (HL).
4
Latimer v AEC [1953] AC 643 (HL).
5
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497.
6
Lister v Hesley Hall Ltd [2001] UKHL 22 (HL).
7
Joel v Morison [1834] EWHC KB J39.
 Bibliography

Primary Sources
Cases
Davie v New Merton Board Mills Ltd [1959] AC 604 (HL)
Joel v Morison [1834] EWHC KB J39
Latimer v AEC [1953] AC 643 (HL)
Lister v Hesley Hall Ltd [2001] UKHL 22 (HL)
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance
[1968] 2 QB 497
Speed v Thomas Swift & Co Ltd [1943] KB 557
Wilsons & Clyde Coal v English [1938] AC 57, [1937] UKHL 2

Secondary Sources
Books
Vera Bermingham & Carol Brennan, Tort law (5th edn, OUP 2009)
Mariette Jones, Blueprints: Tort law (Pearson 2014)

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