Employers' Liability Flashcards
What is Employers’ Primary Liability?
Personal, Non-Delegable Liability arising from an Employer’s Duty of Care to its Employee.
This is a subspecies of Negligence, and therefore, all the same rules apply.
Regarding Primary Liability, what is the the Scope of the Employer’s Duty of Care to the Employee?
The Employer must take reasonable precautions to ensure the Employee’s safety at Work. This includes providing:
- Safe and competent Employees.
- Safe and proper Plant and Equipment.
- Safe Premises, including Third-Party Premises.
- Safe systems of work, with adequate supervision and instruction.
The Employee’s personal characteristics will influence whether the Employer’s precautions are reasonable.
Regarding Primary Liability, what constitutes a System of Work?
Such things as:
- Physical layout.
- Safety Protocols.
- Employee Training.
- Employee Instruction.
- Employee Supervision.
- General Work Practices.
- Lines of Communication.
The more serious a risk, the more proactive the System must be in preventing or minimising it.
Regarding Primary Liability, when will the Defence of Consent apply?
When there is a genuine, full agreement, free from any kind of pressure, to assume the risk of Loss.
The Courts are highly skeptical of this Defence in this context, and will only accept it in extreme circumstances.
Regarding Primary Liability, what is the different about the Defence of Contributory Negligence?
The amount deductable from the Award is much higher, up to 50%.
What are the Elements of Vicarious Liability?
- Commission of a Tort: Party A committed a Tort.
- Responsibility for the Tortfeasor: Party A is an Employee of Party B, or in a Relationship Akin to Emplyoment therewith.
- Commission in the Course of Business: Party A committed the Tort in the course of business.
Regarding Vicarious Liability, what constitutes a Relationship Akin to Employment?
Mutuality of Obligations:
- The Employer must provide the Employee with Work, and the Employee must personally perform the Work.
Remuneration:
- The Employee must be paid to personally fulfill the Work.
Control:
- The Employer must exercise a sufficient degree of Control over Performance, incl. when, where, and how the Work must be completed.
Contextual Factors suggesting Employment:
- The Employee is taxed through PAYE.
- The Employee is integrated into the Firm.
- The Employee receives Benefits from the Employer.
- Any Tools and Equipment are provided by the Employer.
- The Parties classify their Relationship as one of Employement, although this in itself is unconclusive.
Regarding Vicarious Liability, when will a Tort have been Committed during the Course of Business?
When there is a close connection between the Tort and the Tortfeasor’s Employment. The Court considers:
- The nature of the Tortfeasor’s Role; and
- Whether there is a sufficient connection between its Role and the Tort to make Vicarious Liability fair and reasonable.
All circumstances are relevant, but Where and When are often the most important considerations.
Regarding Vicarious Liability, what is the Position if an Employee performs an Authorised Act in an Unauthorise Manner?
The Employer may still be held Liable.
Regarding Vicarious Liability, what is the Position on Acts Incidental to Employment Duties?
They still fall within the Employment’s scope, and therefore, the Employer may still be held Liable.
Regarding Vicarious Liability, what is the Position on Employee Performance of Prohibited Acts?
If they are done to further the Employer’s business, the Employer may still be held Liable.
Regarding Vicarious Liability, what Actions fall outside the Scope of Employment?
- Substantial deviation from Employment Duties.
- Tasks clearly outside of the Employment’s scope.
- Prohibited Conduct with no benefit to the Employer.
Regarding Vicarious Liability, what is the Employer’s Indemnity?
- The Employer’s right to claim Indemnity from an Employee if it must pay for its Tortfeasance.
- The Court will permit this if it is just and equitable.
Regarding Vicarious Liability, when is a Relationship Akin to Employment likely to carry Liability?
It is sufficiently analogous to Employment such that it is fair, just and reasonable to impose Liability.
Relevant considerations include whether:
- The Tortfeasor is under the Employer’s control.
- The Tortfeasor’s Work is part of the Employer’s trade.
- The Tort was committed during Work on the Employer’s behalf.
- The Employer is more capable of compensating the Claimant than the Tortfeasor.
- The Employer created a risk of the Tort being committed by assigning the Tortfeasor the Work.
Regarding Vicarious Liability, what is the Position on Lending Employees?
- Generally, the Lending Employer will be Vicariously Liable for the Torts of a Loaned Employee; unless
- It can prove the Borrowing Employer was primarily obliged and entitled to control the Employee.
- Both Employers can be held Vicariously Liable if they equally share this obligation.
