Employers' primary liability and vicarious liability Flashcards
what is employer’s primary liability?
law of negligence applied to the employer/employee relationship.
what is an employer’s duty of care?
personal and non-delegable.
Must take reasonable precaution to ensure an employee’s safety included obligations to provide
1. safe and competent employees.
2. safe and proper plant and equipment.
3. safe place of work/premises, including safe access and way out and
4. safe systems of work, with adequate supervision and instruction.
breach, causation, remoteness and defences for employers’ primary liability?
breach- take reasonable care based on reasonable employer.
causation- factual and legal.
remoteness- physcial and some mental harm such as stress.
defence- usual ones apply.
- consent is very rare for employee cases.
what is vicarious liability?
where one party is held liable for the torts of another.
what are the elements of vicarious liability?
- Tort has been committed by A and Party A is an employee of party B or failing that, Party A is in a relationship akin to employment with Party B and
- the tort was comitted in the course of Party A’s employment/quasi-employment.
how to tell if the tort was comitted in the course of employment?
if there is a closeness of connection between the employee’s wrongful act and their employment.
a) what functions/field of activities has the employer entrusted to the employee?
b) is there a sufficient connection between the position in which the employee was employed and the wrongful conduct to make it just for the employer to be held liable?
how to identify an employment relationship?
- contract or service.
if not..
3 part test - remuneration in exchange for personal service and mutuality of obligations.
- control, and
- all other contractual factors consistent with an employment relationship e.g PAYE, tools being provided, receiving holiday and sick pay.
test for relationship akin to employment?
fair, just and reasonable…
a) employer is more likely to have the means to compensate the claimant than the tortfeasor.
b) tort has been committed as a result of an activity being undertaken by the tortfeasor on the employer’s behalf.
c) tortfeasor’s activity is part of the business activity of the employer.
d) by allowing the tortfeasor to carry on the activity, the employer created the risk of the tort being committed.
e) the tortfeasor, to a greater or lesser degree, under the control of the employer.
what is the situation with lending employees?
general rule is that the original employer remains liable and it will be difficult to rebut this presumption.
emphasis is placed on the level of control the hirer has over the worker and the provision of equipment.
Other duties for employers in primary employers liability>
employers have a duty to employ competent staff.
employer has a duty to take reasonable precautions to ensure the safety of employees when they are aware of another employee’s dangerous behaviour.
