Law for Business

In order for Janice a medical assistant employed by Kemp Chemicals Inc. to succeed and come
up with a strong case against Kemp Chemicals Inc. doctrine of vicarious liability will be used to
claim for damages caused due to negligence of Tom an employee of Kemp Chemicals Inc. In
this case Janice becomes the plaintiff and Kemp Chemicals Inc. the defendant.

VICARIOUS LIABILITY

The liability of anyone, other than the party actually guilty of any wrongful act, precedes on the
maxim ‘Qui facit per alium facit per se’ [He who does anything by another does it by himself]
(Lunney & Oliphant, 2008). Vicarious liability is described as secondary liability in which one
party may be held liable for the tort of another due the relationship between the two parties; in
this case namely employer and employee relationship (Lunney & Oliphant, 2008). In the case of
Broom v Morgan [1953] the employer was held vicariously liable for the negligence of the
employee (Kidner, 2008).

Conditions that have to be satisfied to impose liability on an employer in the law of vicarious
liability include that the contract of employment is a pre- requisite to liability and that a wrong
was committed in the cause of the employment (Lunney & Oliphant, 2008).

The Employer-Employee Relationship

The person is not an employee if he was under a contract for service, or an independent
contractor. However if the person is under a contract of service he is considered as an employee
(Kidner, 2008).

Due to ineffectiveness of control test court developed the integration test and multiple test.
Multiple test takes into consideration control and integration as well as many other factors that
indicates a contract of employment such as:

a) Remuneration by way of payment of wages or salary, net tax

b) Control by employers disciplinary codes
c) Supply of uniform and/ or equipment
d) Work done on employer’s’ premises rather than at home etc. (Abbott, et al., 2007).

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As stated in the case Tom was an employee of Kemp Chemical Inc. and can be understandable
that he had a contract of service. Although his late coming to work was not controlled by
employer’s disciplinary codes, it can be assumed that in his work he was integrated in other
duties. In Whittaker v MPNI it was held that although the circus had no control over the artists
during the act this was integrated into other duties and was therefore a contract of service
(Abbott, et al., 2007). Tom worked in the employer’s premises and was provided with protective
overalls at work and as an employee it is assumed that remuneration was given for his service.
Hence Kemp Chemical Inc. and Tom have an employer employee relationship.

In circumstances where the defendant has an employer employee relationship to control the
employee’s action in order to prevent harm to the plaintiff the defendant is vicariously liable for
the damage caused by the employee Weld-Blundell v Stephens [1920] (Jones, 2008).

Employee’s wrongful act in the course of employment

Tom reported to work the day he committed the wrongful act of discarding the ripped overall
causing damage to Janice. Hence it can be concluded that wrongful act occurred during Tom’s
employment. In Phelps v Hillingdon LBC [2001] House of Lord held that they are vicariously
liable for the negligence of the individuals they use in the discharge of their duties as child-care
minders and educational providers (Weir, 2004).

Therefore Janice can claim using vicarious liability as Tom was in contract of service for Kemp
Chemical Inc. and tort occurred in the cause of his employment. However she has to prove that
the tort was due to negligence of Tom and see to Kemp Chemical Inc. liability as an employer.

NEGLIGENCE OF TOM

In succeeding to the negligence action the plaintiff must prove that the defendant owed to her a
duty of care, the defendant has been guilty of a breach of that duty and that damage has been
caused to the plaintiff by that breach (Abbott, et al., 2007). In this case the defendant will not be
the tortfeasor (the person who actually committed the tort) as the action is brought on the basis of
vicarious liability for the torts of employee (Steele, 2007). Hence it will be negligence action of
the tortfeasor, in this case Tom that has to be proven.

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Duty of care owedby Tom (Tortfeasor)

In the case of Donoghue v Stevenson [1932] the judge said that ‘reasonable care must be taken
to avoid acts or omissions which, with reasonable foresight, you would know would be likely to
injure your neighbor. This is known as the “Neighbor Principle”. Therefore the test whether
someone is a “neighbor”, in the legal sense, can be established if it can be reasonably foreseen
that the act or omission may cause harm to them’ (Elliot & Quinn, 2007).

Janice is an employee of the company and is entitled to wear protective overalls hence she is a
reasonably foreseeable victim. Therefore it can be concluded that Tom’s action in discarding the
ripped overall is foreseeable to cause harm to Janice and he owes a duty of care to Janice.

Breach of duty by Tom (Tortfeasor)

In the words of Lord Thankerton in Bourhill v Young [1943] AC 92 reasonable man should take
reasonable care that will avoid the risk of injury to such persons as he can reasonably foresee
might be injured by failure to exercise such reasonable care (Lunney & Oliphant, 2008). In
Bolton v Stone [1951] AC 850 a reasonable man can foresee and take precautions against risks
which are reasonably likely to happen (Elliott & Quinn, 2007).

Hence Tom as a reasonable man working in an environment where chemical is been used should
have anticipated the probability of Janice wearing the ripped overalls that he discarded. This
characterized Tom’s conduct as careless. Therefore Tom acted as an unreasonable man
breaching the duty of care to Janice.

Damages caused

Janice will not succeed the claim unless it can be revealed that the result of breach of duty
contributed to the damage. Rule of causation and remoteness has to be applied for compensation
of the damage (Harpwood, 2005). In Dorset Yacht Co v Home Office [1970] AC 1004 HL it
was held that the Home Office owed a duty of care to the Yacht Club in respect of the detention
of Borstal trainees who had escaped from an institution and caused damage to the yachts
(Kidner, 2008).

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As mentioned above negligence of Tom led to the causation of damage when Janice wore the
discarded ripped overalls left by Tom that led to her been severely injured as spilled acid
penetrated through the tear in the overalls. The damage was foreseeable and not too remote
therefore Tom is found liable for negligence for the damage caused to Janice

KEMP CHEMICAL INC. LIABILITY AND DUTY OF CARE TO JANICE

Kemp Chemical Inc. has a duty to ensure the safety of employees by taking reasonable care. As
stated by Lord Wright in Wilsons & Clyde Coal Co Ltd v English [1938], the duty required ‘the
provision of a competent staff of men, adequate material and proper system with effective
supervision’ (Lunney & Oliphant, 2008).

Safe place of work

Health and Safety at Work Regulation 1992 governs safety of the workplaces. Employer is not
obliged to eliminate every foreseeable risk but have a duty to take reasonable care of the
premises safety. Latimer v A.E.C Ltd [1952]. In Wilson v Tyneside Window Cleaning Co.
[1958] it was held that the duty exists equally in relation to premises in the occupation or control
of a third party (Kidner, 2008). The control of the premises is important in determining whether
the employer is negligent. (Tiernan, 1999).
It is assumed that Kemp Chemical Inc. have control of the premises and took reasonable care in
keeping the workplace safe.

Safe system of work

Under the Health and Safety at Work Acts (1974) competent staff must be employed for
ensuring reasonable safe system of work. It is the choice of the employer to select unskilled or
careless person to execute his orders and it is reasonable that the employer should be responsible
for any injury caused by the hired person and that if an employer knows or ought to know that
employees are a danger to others, he is obliged to remove the danger (Abbott, et al., 2007).
Reedie v The London & North Western Railway Company[1849] 4 Exch 244, 154 ER 1201

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(Lunney & Oliphant, 2008). Tom was known for bad time keeping. However Kemp Chemical
Inc. hired Tom. Due to this habit Tom was negligent in causing injuries to Janice. Hence Kemp
Chemical Inc. put their employees in danger making them liable for negligence for not putting
him under employer’s disciplinary code. In Hudson v Ridge Manufacturing Co Ltd [1957] it
was held liable for employing incompetent workers (Elliot & Quinn, 2007).

Employers have a duty to take reasonable care to provide their workers with appropriate
equipments including protective devices and clothing and maintain them properly. It is also their
responsibility to warn their employees about protective equipment that should be used (Abbott,
et al., 2007). In Bux v Slough Metals [1973] the court held that the company was in breach of
their common law duty to take reasonable steps for the plaintiff’s safety. To reduce danger
arrangement must be made for the provision and use of safety apparatus. No employee, even
though experienced, must be left to look after his own safety and equipments have to be put in
proper places (Elliot & Quinn, 2007). In Finch v Telegraph Construction & Maintenance Co
[1949] the company was liable as they did not put the apparatus in proper places (Abbott, et al.,
2007).

It can be identified that Kemp Chemicals Inc. did not provide proper place to discard ripped
overalls also there is no evidence of a supervisor been in place to check on the overalls making
them liable for Tom’s action.

Training also need to be provided to employees as this will help them to be prepared in
unexpected situations. In Brown v John Mills & Co Ltd [1970] where the defendant was found
liable for not instructing the correct method of work (Abbott, et al., 2007). There is no evidence
of proper training been given to the Kemp Chemicals Inc.

As a responsible employer, Kemp Chemicals Inc. has to fulfil the obligations in the provision of
a competent staff of men, adequate material, a proper system and effective supervision (Weir,
2004). However they failed to provide a safe system of work which resulted in Tom causing
damage to Janice. Therefore it is found that they have breached the statutory duty in providing
duty of care to Janice making them liable. This can be supported in the case of Donaghey v

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 Law for Business

Boulton & Paul Ltd [1968] where the defendant was liable for breach of statutory duty causing
damages to employee (Elliot & Quinn, 2007).

DEFENCES FOR NEGLIGENCE

Contributory Negligence Act 1945 section 1(1) stated that damages can be reduced to take
account of the fact that the fault was not entirely the defendant’s. Plaintiff’s negligent behavior
contributes to the cause which results in damage. In Froom v Butcher [1976] the court
mentioned that the damage could be reduced if the claimant wore seatbelts (Kidner, 2008). It is
also stated in Owens v Brimmell [1977] plaintiff shared 20% contributory negligent in getting in
the car with a driver whom he knew to be drunk (Kidner, 2008). Tom discarded the ripped
overalls however it is Janice’s responsibility to check the condition of the overall before wearing
it.

In ‘Volenti Non Fit Injuria’ no injury can be done to a willing person where the claimant has in
some way consented to what was done by the defendant and voluntarily took risk of harm. In
Morris v Murray [1991] the defendant was not liable as the plaintiff consented to the risk of
taking the flight in inappropriate condition (Elliot & Quinn, 2007)

However the defense of volenti and contributory negligence will not apply here because Janice as
a medical assistant acted instinctively in an emergency to rescue a colleague who collapsed with
a heart attack. Hence Kemp Chemical Inc. cannot argue that Janice acted unreasonably (Lunney
& Oliphant, 2008). In Chadwick v British Railways Board [1967], the court rejected volenti
defense based on rescue (Elliot & Quinn, 2007).

CONCLUSION

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Aishath Sheneen Ibrahim & Ahmad Zaim Bin Abdul Rashid
 Law for Business

Based on the above mentioned, arguments Janice has a strong case against Kemp Chemical Inc.
them whereby, she can claim full compensation for her damages as defense may not be
successful.

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Aishath Sheneen Ibrahim & Ahmad Zaim Bin Abdul Rashid