employers' primary liability and vicarious liability Flashcards
What is employers’ primary liability?
employer is at fault and has breached their duty of care owed to an employee.
How is vicarious liability different to employer’s liability?
where one party is held liable for the torts of another towards the claimant and is most commonly exercised in employer / employee relationships.
- three parties involved - the victim who suffered harm, the employee that caused that harm by committing a tort, and the employer who might be vicariously liable for the harm caused by its employee.
What does personal and non-delegable mean?
that regardless of who the employer uses to carry out tasks, the ultimate responsibility for the safety of the emplovee rests with the emplover - they can delegate performance of the duty, but not liability for its breach.
What 4 obligations are included in the employer’s duty to take reasonable precautions to ensure employee safety?
1- safe and competent employees
2- safe and proper plant and equipment
3- safe place of work / premises (+ safe way out)
4- safe systems of work with adequate supervision & instructions
How does breach differ in employer’s liability?
standard of care is that of a reasonably competent employer, providing reasonable care in all circumstances
- Objective standard
How does causation and remoteness differ in employer’s liability?
causation= Factual & legal:
- but for test / material contribution approach
- employee’s unreasonableness could be a novus acts interveniens
remoteness of harm must be considered
What are the defences in employer’s liability?
consent and contributory negligence.
Define vicarious liability.
refers to situations where one party is held liable for torts of another.
- It arises because of a specific relationship between the parties.
- It is not a tort, but merely a determination of who is potentially liable.
- no need to prove fault on the part of the defendant. The defendant who is
vicariously liable incurs what is called ‘strict liability’ - liability without fault.
What are the 3 key elements for vicarious liability?
1- there must be a relationship recognised capable of giving rise to vicarious liability (employment or akin)
2- tort must have been committed by relevant party to that relationship
3- Tort nest have been committed in course of that relationship.
What is the close connection test?
is there a close connection between the employee’s tort and the role they are employed to do?
What is the employer’s indemnity?
although the victim claims against the employer, the employer may be able to claim something back from the employee.
- The court will allow such a claim if it is ‘just and equitable’ to do so.
The defendant who is vicariously liable incurs what is called ‘strict liability’, meaning…
they are liable even though they are not at fault.
How is it established that a party is an employee?
multi-factor test:
1- remuneration in exchange or personal service
2- control; and
3- all other contractual factors consistent with an employment relationship
What is a employment akin relationship?
relationship is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability.
