Tort 5: Employers Liability / Vicarious Liability

Question 1

What are the elements of an employer/employee negligence claim?

Answer 1

Duty of Care
- established duty of care (employer/employee_

Breach of Duty
- employee must show that employer failed to exercise reasonable care for safety of employee

Causation of Damage
- breach must have caused injury and damage must not have been too remote

Defences
- voluntary assumption of risk
- contributory negligence

Question 2

What are the employers duties of care to employees?

Answer 2

Safe Plant and Equipment

Safe Place to Work

Competent Fellow Staff
- selection of competent staff
- training
- does not intervene if one plays pranks

Safe System of Work
- providing adequate supervision and enforcement of system
- conducting appropriate risk assessments

Psychiatric Harm from Stress
- if reasonably foreseeable that employee is at risk of harm caused by stress
- them must take reasonable steps to respond to risk

Question 3

When is an employers duty of care delegable (ie to contractors etc.)

Answer 3

Never

Even if task is delegated employer must see that reasonable care is taken by the 3rd party.

Question 4

What is the employers standard of care and when is it breached?

Answer 4

Standard of a reasonable employer.

Is it breached
- consider magnitude of risk created; and
- practicability of taking precautions against risk

• must take each employees individual circumstance into account (if one eye need goggles)
• court will also consider common practice of other employers in same field

Question 5

What is the employers liability if claim is for industrial disease not previously known?

Answer 5

Must take into account when risk of disease became known to industry.

If not known during employment employer could not be expected to take precautions.

Question 6

What is the employers liability for claim that arises out of latent defect to equipment they provided but is attributable to a 3rd party?

Answer 6

Employer still liable if it can be shown that:

• there was a defect in the equipment; and
• the defect was caused by fault on the part of someone.

Question 7

What defences does an employer have to breach of duty of care?

Answer 7

Voluntary assumption of risk
- must show employee fully appreciated and voluntarily consented to actual risk
- difficult to establish

Contributor Negligence
- if employee failed to take reasonable care for their own safety and this contributed to their injury

Question 8

What are the elements of vicarious liability of employers?

Answer 8

• Tort was committed (against some other person or another employee)
• By an employee
• In the course of employment

Question 9

When does someone count as an employee?

Answer 9

Factors taken into account:

Personal Service
- can person have someone else do the work (does it have to be the potential employee)

Control
- does employer have right to control how the work is done

Equipment
- does employer supply equipment

Chance or Profit / Loss
- which party takes financial risk from the work being carried out

Contractual Provision
- are other provision in contract consistent with employer/employee relationship
- label of contract not conclusive content is

Question 10

When is an employee acting in the course of employment?

Answer 10

Court will ask:
- was the tort so closely connected with the task the employee was employed to do that it would be fair and just to hold the employer liable?

Does not matter that they were acting:
- negligently
- criminally

Question 11

Is an employee acting in the course of employment if they are disobeying instructions?

Answer 11

Depends on if prohibition limited the scope of employment of matter in which it is carried out.

Scope
- if it limited scope then would be acting outside scope of employment

Manner
- likely still acting in course of employment

Question 12

Is an employee acting outside course of employment if the deviate from an authorised journey?

Answer 12

Question of degree
- extent of deviation in time or distance may indicate that they started a separate journey and acted outside course of employment

Question 13

Can vicarious liability exist even if the person is not an Employee?

Answer 13

Yes if it is a relationship making to employment.

Factors:
- the tort was committed as a result of an activity undertaken by the tortfeasor on behalf of the defendant
- tortfeasor’s activity is an integral part of the defendants business activity (rather than own business); and
- defendant created the risk of the tort by assigning the activity to tortfeasor.

Then must show
- the tort so closely connected with the task the employee was employed to do that it would be fair and just to hold the employer liable

Question 14

When might someone be liable for a tort committed by an independent contractor?

Answer 14

Employer liable for acts of contractors that harm employees due to non-delegable duty to employees.

Also applies to using contracts for:
- extra-hazardous activity such as work on highway;
- schools non-delegable duty to care to pupils; or
- if they fail to take reasonable care in selecting competent contracts that commit tort to 3rd party.