Looking for some assistance from my learned friends - Lets consider a scenario where an employer (A) subcontracts out some of his specialised processes. A local customer (B) likes the idea subcontracting out part of his products to be manufactured by (A), and a contract is agreed. (B) then arranges for the products to be delivered to (A). (A) then processes in accordance with the agreement. Task is finished, products meet (B) requirements. Then comes the tricky bit, (B) sends his forklift driver, who has been advised (by A) products are ready to be picked up. FLT driver turns up on site, drives past a number of (A) employees within the transportation yard, parks his vehicle in front of a roller door, enters the building through the side door, and proceeds to open the roller door. He then drives his FLT within (A) factory premises until he finds his palletised product, then picks up his pallet and drives through the factory and out, returning to his own company (B). If a situation was to arise whereby an incident occurred, where there was a serious injury etc, etc Who would be liable? would (A) EL cover? or would (B) EL cover on a different premise? Would Public Liability Insurance cover? or what. I am of the opinion that someting is missing (apart from the obvious system failures), and what case law is avail to substantiate my argument?

Phil, Reading the question, It seems to me that I am considering a scenario, not an event that has happened, and asking the question, if the FLT driver from (B) was to injure one of (A) employee's seriously, then what will the implications be. There is no detail missing it is in the question, The answers you require - FLT driver from B arrived on A premises to pick up B products by passing a number of A employees No one was injured, but FLT B being on A premises does have the potential to seriously injure one of A Employees We dont need to go into too much detail about the FLT, as A dont know anything about FLT B or the driver, other than advise B their goods are ready for uplift. I am sorry if I sound so long winded, we dont need the full detail as nothing has happened (yet), other than trying to work out if a situation did actually happen then what are the implications for A, B or even FLT Driver from B, etc.

LexyBoy, I'll do my best: 1) If an employee injures a fellow employee - same employer - then the employer is liable under rule of vicarious liability. That is the emploeyer is reposnsible for the acts of their employees. And also there is a common law duty of care that an employee expects to be working alongside competent fellow employees. Would be delat with as an EL claim 2) In much the same way if an employee causes damage to property of another person or injures that person the employer is liable. So, if the employee of a plumbing firm burns down the house that he is working on then their employer could be liable - subject to the proof of negligence. Similarly in your example the FLT driver enters the premises of another firm and injures one of that firms employees - if negligence on the part of the driver is established - then it would be dealt with as a PL claim by the insurers of the driver's employers. Hope that makes sense! But has previous posters have said - it very much depends upon the exact circumstances of the event. Phil

As others have said, it all depends. If A has failed to protect their employees from traffic on their site (including B's vehicle) then they may well have liability for the injury. A is responsible for traffic management on their own premises including setting rules for B's driver while he is there. Equally B is responsible for checking that their driver is going to be safe on A's site before sending him there. Clearly A and B need to get together and agree their expectations of each other.

Yes, that's what I'd expect to see in that situation, together with clear rules about where the driver has to report to and where he is allowed to go. And hopefully it will prevent an incident from occurring rather than just shift the liability if one does happen.

Incidentally, how is the FLT getting to the site? Is it driven on a public road?

Chris, thank you, my sentiments exactly! Kate, yes the FLT is driven on a public road (well through an industrial estate, the factories are some 250 M apart) Dont even go there with regards to FLT being insured or taxed (or not), not interested, I am only interested in what happens once on (A) site! How it gets from B to A is the responsibility of Employer B.

seriously, hypothetically, if, but and may be, potentially.What if. Im glaising over. when it happens give me a shout!!

At last I feel that others are having the same difficulty as I was. Like others it does read like a complicated and unanswerable exam question. I can’t help but feel that it would be better to go back to basics. I do not subscribe to this seemingly automatic assumption of liability. Establishing liability whether criminal or civil is very much dependant on the individual circumstances, and the ‘satisfaction’ of a number of key principles. In criminal cases the party involved either accepts liability by pleading guilty or is found to be liable by being found guilty. Civil cases follow a not dissimilar route, either the acceptance of liability or the alternatively the payment of claims without accepting liability, both of which would normally happen outside of the Court system, or being found to be liable or not within the Court system. I am always rather intrigued by the preoccupation with the question of insurance. Although there is inevitably some ‘relationship’ with insurance, the establishment of liability is essentially separate from the insurance policy that MAY subsequently pay for the liabilities arising in civil cases. The purpose of ELI is to ensure that employers can meet the costs of compensation for their employees arising out of their work. In #5 above, I feel it is misleading to suggest, “If an employee injures a fellow employee - same employer - then the employer is liable under rule of vicarious liability. That is the employer is responsible for the acts of their employees”. It is NOT as straightforward as that in either criminal or civil proceedings. Under criminal law an employee is normally liable for his or her own actions; e.g. section 7! In CIVIL cases, it is important to note that an employer is NOT always vicariously liable for the acts of ‘his’ employees; ONLY where an employee injures another party during the course of their WORK, but note Lister vs Romford that demonstrates that the employee can also be found personally liable. Where an employee is ‘on a frolic of their own’ i.e. not in the course of their work or acting without the employers authority and their actions injures another, then it is unlikely that an employer would accept or be found to be vicarious liable for the employee’s actions. Sorry for the use of caps but the only way to be able to add emphasis. Summary: Don’t assume automatic liability Liability is either accepted or established on the individual facts of the case - this 'ifs', 'but fors', 'maybes' etc Don’t confuse civil and criminal liability Don’t confuse liability with insurance

To Phil Rose: Re your clarification regarding Post #5 in respect of sec7 (personal liability under cirminal law) and the issue of "frolics" and then need for any act to be comitted "in the course of employement" in respect of civil law. You are quite correct however I would respond as follows: 1) Vicarious liability doe not exist - in my opinion in the ciminal courts, perhaps I should have made that clear. And, whilst there have been sec7 prosecutions they are much rarer than those involving the employer who has a greater duty of care and will generally have been found to have breached it before the employee is found to have been at fault. 2) As regards the civil courts generally it will be a brave court that finds that an act commited at work, by an employee, which results in an injury to a fellow employe was not covered by vicarious liability. It has happened I agree but I think we all agree that the courts generally strive to find a deep pocket - and that it ususally that of the insurer. Like you, I am disapppointed at the interest shown in insurance - it should be regarded as the last resort. Risk management should be the focus and only if/when that fails should we turn to insurance. However, speaking from the perspective of an insurer what is painfully obvious is that employers fail to understand that inadequate risk management not only results in accidents, followed by claims but also ruins any chance of mounting a successful defence. Regards Phil

Phil (Grace) – the point I was making was that it isn’t always straightforward to 'assign' liability without some serious consideration of the facts of the case, hence the length of some cases and subsequent appeals etc. Sometimes liability lies with the employer, sometime with the employee, and sometimes a bit of both. The fact that there may be more employer prosecutions than employee prosecutions seems to suggest to me that is because they determined that that is where the liability lie. I am not sure if the courts assign liability to the employer on the basis that that is where the bulk of the responsibility lies, but rather where the responsibility in that particular instance was based on the individual facts of the case. Similarly, the key to establishing vicarious liability is that the ‘injury’ arises either ‘out of’ or ‘in the course of’ employment. If the defendant can successfully argue that the injury was caused by neither, then it seems entirely reasonable to me that the court would find for them. As you say, there have been cases where employers have been successful in defending themselves against such claims i.e. that they weren’t found to be vicariously liable for the actions of their employees, either because they weren’t acting in the course of their employment. In saying that, I note the cases of schools being found VL for sex abuse cases, so the argument of whether something was in the course of employment is obviously the subject of some serious legal definition. I am not sure if the courts rely on the ‘deep pocket’ scenario but more than happy to stand corrected. In saying that, the deep pocket does have some relevance to the pprinciple of vaicarious liability itself i.e. not worth suing most emplyees as they are unlikely to have the means to pay. I would have thought that the courts are bound to make their decisions based on the ‘rule of law’ in establishing where the liability lies, rather than using the ‘rule of the deepest pocket’ and establishing liability on the basis of who is best placed to pay out. The liability question is one that I am asked time and again, and one for which there is rarely a simple and straightforward answer; other than, don’t injure anyone or cause them ill health, then there can be no liability! Now which way was it to Utopia?

I started going through the posts and just got lost. So, thought I would state 2 points to add (if it wasnt already clear); Forklifts do need to be in a suitable condition (and taxed would you believe) to be on small roads. I know, a previous employer who found out the hard way. Also, dont most cases often show the dual liability i.e. majority of action against whomever controls the premises, and then against employees employer. Hope it helps!