Employers' Primary Liability and Vicarious Liability

Question 1

What is the general duty employers owe to employees?

Answer 1

Take reasonable care for employee’s safety at work

Question 2

4 specific duties

What must an employer take reasonable steps to provide to satisfy general duty to take reasonable care for employee’s safety at work?

Answer 2

1. Competent staff
2. Adequate material
3. Safe system of work and supervision (including PPH)
4. Safe place of work

Question 3

Requirements for the duty to take reasonable steps to provide competent staff to arise

Answer 3

Employer must know about risk worker poses

one-off incident insufficient

Question 4

What must an employee establish to sue their employer for defective equipment?

Answer 4

1. Fault of 3rd party (manufacturer / supplier); and
2. Causation (fault caused injury)

Question 5

When will an employer be liable for stress at work?

Answer 5

The stress must be reasonably foreseeable considering:
1. Nature and extent of work; and
2. Signs from employee (employer must be told / know)

Question 6

Does the employer’s duty to provide a safe place of work include premises an employee is sent to?

Answer 6

Yes

Question 7

An employer’s duty to take reasonable care for employees safety at work is non-delegable. What does this mean?

Answer 7

Employer may delegate performance but cannot delegate responsibility (i.e. liable for independent contractor’s and supervisor negligence)

Question 8

An employer’s duty to take reasonable care for employee’s safety at work is personal. What does this mean?

Answer 8

An employer must take extra precautions if they are aware of an employee’s special circumstances

Question 9

When will an employer be in breach of its duty to take reasonable care for employees’ safety at work?

Answer 9

Falls below standard to be expected of a reasonable employer in its position

Question 10

Can an employee bring a claim for breach of HSWA?

Answer 10

No, but indicative of whether employer has fallen below required standard of care

Question 11

Is consent likely to succeed as a defence in employer negligence cases?

Answer 11

No

Question 12

What is vicarious liability?

Answer 12

Employer is liable for torts committed by employees

• secondary liability
• jointly liable with employee
• strict liability: do not need to prove employer is at fault

Question 13

When will an employer be vicariously liable for acts of its employees?

Answer 13

1. Employee has committed a tort
2. Worker is an employee or in a relationship akin to employment (not contractor)
3. Tort was committed in the course of employment

Question 14

Economic reality test

What is the test to determine whether a worker is an employee?

Employment relationship

Answer 14

1. Renumeration, personal service, mutuality of obligations (salary, employer plays role in chosing substitute, set hours)
2. Control; and
3. Other contractual factors consistent with employment relationship (equipment provided, tax PAYE, integrated, holiday pay, labels)

Question 15

Test for relationship akin to employment

i.e. employer may be vicariously liable for torts of worker

Answer 15

Worker is not carrying out an indepndent business AND not an employee but the relationship is sufficiently analgous to employment to make it fair to impose vicarious liability. This is most likely where:
* Employer has more means than worker to compensate C;
* Tort committed as a result of an activity undertaken on behalf of employer;
* Worker’s activity is part of business activity of employer;
* Employer created risk of tort; and
* Worker is under employer’s control

Question 16

Close connection test

Test to determine whether a tort was committed in the course of employment

Answer 16

1. What functions / field of activities has employer entrusted to employee?
2. Sufficient connection between position employee employment and wrongful conduct to make it fair to impose a duty

Question 17

Generally, when will a tort be considered to be committed in the course of employment?

Answer 17

1. Act expressly or impliedly authorised by employer
2. Act incidental to employee’s proper duties (e.g. during lunch break)
3. Unauthorised way of doing something authorised by employer
4. An expressly prohibited act provided furthers employer’s business
5. Frolic of own if minor detour + still going about employer’s business

Question 18

Can an employer claim indemnity from an employee if found vicariously liable?

Answer 18

Yes (right to claim full loss from employee) but will not unless evidence of collusion or wilful misconduct

Question 19

Where an employer lends an employee to another employer (hirer) who will be found vicariously liable?

Answer 19

GR: original employer will be vicariously liable
EXCEPTIONS:
* hirer if high level of control + provide equipment;
* both if equal measure of control (rare)