Employers’ primary liability and vicarious liability

Question 1

Which type of liability will mean that the claimant is always an employee of the defendant?

Answer 1

employer’s primary liability

Question 2

Which type of liability means that the claimant may or may not be an employee but person who committed tort is an employee of defendant?

Answer 2

Vicarious liability

Question 3

What is the most important feature of an employer’s duty of care?

Answer 3

Personal and non-delegable

Question 4

What does an employer’s duty for employee’s safety include an obligation to provide?

Answer 4

• Safe and competent employees
• Safe and proper plant and equipment
• Safe place of work/premises including access/exit
• Safe systems of work with adequate supervision/instruction

Question 5

Where one employee injures another employee, what actions may they have?

Answer 5

action against employer for breach
action against employee who caused harm
action against employer for vicarious liability

Question 6

Which defence frequently succeeds for employer’s primary liability cases

Answer 6

Contributory negligence

Question 7

what should be taken into account when assessing breach of duty for employer’s liability cases?

Answer 7

Personal characteristics of employee

Question 8

Is there a need to prove fault of the employer for vicarious liability?

Answer 8

No - strict liability

Question 9

What are the elements of vicarious liability?

Answer 9

1. Tort committed by A
2. A is employee of B (or relationship akin to employment)
3. Tort committed in court of A’s employment

Question 10

What is the test for employer’s vicarious liability?

Answer 10

1. Tort committed by A
2. A is employee of B (or relationship akin to employment)
3. Tort committed in course of A’s employment

Question 11

How is the ‘in course of A’s employment’ part of vicarious liability determined?

Answer 11

Closeness of connection between wrongful act and employment

Question 12

What assistance may an employer be able to get if they are held vicariously liable and on what basis?

Answer 12

Indemnity from employee
Court will allow if just and equitable

Question 13

What is the multiple factors test to establish an employment relationship?

Answer 13

1. Remuneration in exchange for personal service/mutuality of obligation
2. Control
3. Al other contractual factors consistent with employment relationship

Question 14

How is a relationship akin to employment established?

Answer 14

1. not emploee nor carrying out own independent business
2. sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability

Question 15

What is the general rule for vicarious liability where an employer lends an employee to another employer?

Answer 15

Original employer remains liable

Question 16

What is possible where an employer lends an employee to another employer but they both have equal control over the employee?

Answer 16

Dual liability