Employers primary liability and vicarious liability

Question 1

What is employers primary liability?

Answer 1

where an employee sues their employer for breaching their duty of care to employee. (claimant is always an employee of the defendant)

Question 2

What is vicarious liability?

Answer 2

where employer not at fault themselves is held responsible for the torts of their employees. Claimant sues employer for a tort committed by employers’ employee.

Question 3

Employers duty of care for primary liability?

Answer 3

• The feature of duty of care is that it is personal and non-delegable.
• Ultimate responsibility for safety of employee rests with employer. Can delegate performance of duty but not liability for its breach.
  There is reasonable care standard but specific situations as well.

Must provide
Safe and competent employees.
Safe and proper plant and equipment
Safe place of work
Safe system of work with adequate supervision and instructions

Question 4

A claim in employers primary liability elements?

Answer 4

Breach
- Duty on employer is to take reasonable care – not an absolute duty. Reasonable level of precaution. Take into account characteristics.
Causation
- Necessary to establish factual and legal causation
Remoteness
- Mental harm such as stress may also be recoverable
Defences
- Use of general defences apply
- Contributory negligence is also considered.

Question 5

Employers vicarious liability?

Answer 5

One party is held liable for the torts of another – arises because of a specific performance
It’s like a secondary liability
No need to prove fault on part of defendant – defendant who is vicariously liable incurs what is called strict liability.

Question 6

What’s needed to establish vicarious liability?

Answer 6

A tort has been committed by party A
AND
Party A is an employee of party B or failing that in a relationship akin to that.
AND
Tort was committed in the course of party A’s employment.
- if it was expressly or impliedly authorised
- close connection test

Question 7

How to establish if the relationship is sufficiently akin to an employee relationship for vicarious liability?

Answer 7

Multiple factors test

1. Paid in exchange
2. Party b has control over party a
3. All other contractual factors have to be the same
   - like tools being provided by employer, tax treatment employee being integrated into organisation l. Benefits.

• WHERE PARTY IS NOT EMPLOYEE SEE TEST FOR AKIN TO EMPLOYMENT
• sufficiently analogous to employment to make fair just and reasonable to impose vicarious liability.

Test is:

1. Whether employer is more likely to be able damages
2. Whether tort has been committed on employer’s behalf
3. Tortfeasors activity is part of employer’s activity
4. Employers created risk of tort being committed by allowing tortfeasor to carry on the activity.
5. Tortfeasor is under power of employer

Favoured approach is the multiple factors – or economic reality test from
- Ready Mixed concrete v Minister of pensions
- X drove a truck which he hired and insured, the company paid him based on mileage, he had no set hours.
- Held: that he was an independent contractor

Multiple factors test
- Remuneration in exchange for personal services and mutuality of obligations
- Control and
- All other contractual factors consistent with an employment relationship - tax/PAYE, integration into organisation. Labelling of relationship

Question 8

Lending employees for vicarious liability?

Answer 8

GENERAL RULE IS
Employer will remain vicarious liable. Difficult to rebut presumption.

Sometimes both can be liable if they both have control over employee.