Tort - Employers' Liability and Vicarious Liability

Question 1

Employer’s Liability

Answer 1

Three types:

1. Breach of personal duty
2. Breach of statutory duty
3. Vicarious liability

Question 2

Course of Employment

Answer 2

Doing something reasonably incidental to employee’s main job

Question 3

Standard of care

Answer 3

To take reasonable care to avoid unnecessary risk

Must take into account age and employee’s individual condition, for example

Safe equipment, safe place of work, competent employees and safe system of work (e.g. adequate supervision, psychiatric harm from stress)

Question 4

Vicarious Liability

Answer 4

Essentially strict liability or liability without fault

Liability of employer through tort of employee

Three criteria:

1. Employer/employee relationship
2. Employee must have committed tort
3. Tort must have been committed in the course of employment

Question 5

Employer/employee relationship

Answer 5

1. Employee agrees to personally provide their skill and work in return for a salary
2. Employee agrees to be subject to employer’s control
3. Ownership of tools
4. Financial risk
5. Contractual terms consistent with contract of employment

Other factors include who provides the tools, whether required to wear uniform, being able to delegate etc

If relationship is sufficiently analogous to an employer/employee relationship to make it fair, just and reasonable to hold employer vicariously liable

Question 6

Course of Employment

Answer 6

One must be met:

1. Incidental to employee’s job
2. Authorised by employer
3. Authorised act carried out wrongfully or negligently

If employee disobeys instructions whether this is within the course of employment depends on the effect of the prohibition:

1. Limits the scope of employment - outside course of employment
2. Limits the manner in which employment is carried out - inside course of employment

Question 7

Breach of Employer’s Duty of Care

Answer 7

A nondelegable duty

Employer must take such care as would be expected of a reasonable employer

Question 8

Employer’s Liability (Defective Equipment) Act 1969

Answer 8

If an employee is injured by defective equipment an employee is deemed to have been negligent if:

1. the employee can establish that there was a defect in the equipment; and
2. that defect is attributable to fault on the part of some third party the employe

Question 9

Causation of Damage (Employer’s Liability)

Answer 9

Normal rules apply

1. Causation in fact
2. No intervening acts
3. Damage reasonably foreseeable

Question 10

Vicarious Liability

Answer 10

Applies to torts committed by an employee against another person and torts committed against a fellow employee