TERM 2: Vicarious Liability Flashcards
What is the common law duty of care owed by employers to their employees?
To take reasonable care of their health and safety during the course of their employment
This duty cannot be delegated to anyone else.
What are the three forms of employer’s liability?
- Breach of personal, non-delegable duty of care
- Vicarious liability
- Breach of statutory duty
What is vicarious liability?
A situation where one person is made liable for the tort of another person, typically an employer for the acts of their employees
It is a form of secondary liability.
What is the standard of care required of an employer?
The standard of a ‘reasonable and prudent employer’
If an employer meets this standard, their duty will be discharged.
What are the three specific obligations under an employer’s non-delegable duty of care?
- To provide a competent staff
- Adequate materials
- A proper system of work and effective supervision
True or False: Employers can delegate their duty of care to employees.
False
The duty of care cannot be delegated.
What must employers ensure regarding the competence of their staff?
Employers must ensure that they employ competent colleagues and provide effective supervision and training.
What is the significance of the case Wilsons & Clyde Coal v English [1938]?
It overruled the old doctrine of common employment and established specific obligations under the non-delegable duty of care.
What must employers provide as part of their duty to ensure safety?
All necessary equipment and reasonable care to ensure that it is properly maintained and safe to use.
What does the Employer’s Liability (Defective Equipment) Act 1969 relate to?
It relates to employers’ liability for defective equipment provided to employees.
What is the employer’s responsibility regarding workplace stress?
Employers must manage situations that may cause stress and ensure adequate policies are in place.
What is required to establish vicarious liability?
- A fully constituted employment relationship
- A tort must have been committed
- The tort must have been committed during the course of employment
What is the ‘Control Test’ in establishing an employment relationship?
A servant is a person subject to the command of his master as to the manner in which his work shall be done.
Fill in the blank: Vicarious liability is a form of ________ liability.
strict
What does the term ‘akin to employment’ refer to?
A relationship that has similar characteristics to an employer-employee relationship, which can give rise to vicarious liability.
What are the theoretical justifications for vicarious liability?
- Employers are best placed to reduce workplace accidents
- Fairness in hiring responsibility
- Practical convenience for compensating victims
What does the term ‘employer’s liability’ encompass?
Liability arising from an employer’s breach of duty towards their employees, including personal duty and statutory duty.
True or False: An employee’s personal liability is extinguished under vicarious liability.
False
The employee remains personally liable, but this may not be beneficial for claimants if the employee lacks financial means.
What must occur for liability to pass to the employer in a tort case?
The tort must have been committed by the employee during the course of their employment.
What happens if an employee acts outside the normal course of their work duties?
It would undercut many of the policy reasons which justify the doctrine of vicarious liability.
Who originally defined the test for ‘in the course of employment’?
John William Salmond.
What is the first condition for an act to be deemed in the course of employment?
It is a wrongful act authorized by the employer.
What is the second condition for an act to be deemed in the course of employment?
It is a wrongful but unauthorized mode of doing something which is authorized by the employer if it was done properly.
What did Lord Millet state about vicarious liability?
It is legal responsibility imposed on an employer for a tort committed by his employee in the course of employment.
