Vicarious Liability Flashcards
What is vicarious liability and what do you need to establish it?
Where an employer is liable for an employee’s negligent actions committed during the course of employment.
Employee remains liable, but is likely not worth suing for financial reasons
What do you need to establish vicarious liability?
- An employer-employee relationship
- A tortious act committed by the employee
- In the course of employment
How can you determine if the person who committed the negligent act is an employee of the defendant?
If there is an employment contract, you have an employee.
If it is a contractor, volunteer or agent, look to see if there is a special relationship “akin to employment”
Court will look at:
- Level of control the company has over the individual
- Whether the worker is managed by the company or accountable to it
- Whether they wear a company uniform
- How integrated they are in the business
How do you establish whether the tortious act was done in the course of employment?
Close connection test: is there a close connection between the tort and the individual’s job?
The individual must have committed the tort while doing their job as hired by their employer, or as part of the course of the day to day role. Look at the functions assigned to the employee, and whether they committed the tort in the course of performing those functions.
What is employers’ primary liability?
Where an employee sues their employer for breaching their duty of care to the employee.
Does not automatically apply to other workers such as independent contractors, nor those in a relationship ‘akin to employment’.
What is vicarious liability?
Where the employer, while not at fault themselves, is held responsible for the torts of their employees.
Close connection test:
- A tort has been committed by Party 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 committed in the court of Party A’s employment/quasi-employment
What are the obligations of the employer’s primary liability?
Duty of care to employees - to take reasonable precautions to ensure an employee’s safety.
Obligations/facets of that duty:
- Safe/competent employees
- Safe/proper plant and equipment
- Safe place of work/premises
- Safe systems of work
What is most important feature of the duty of care imposed on employers?
It is personal and non-delegable.
Means that regardless of who the employer uses to carry out tasks, the ultimate responsibility for the safety of the employee rests with the employer - can delegate performance of the duty but not liability for its breach.
Means employers are directly liable if those they have entrusted with responsibility fail to exercise reasonable care in respect of an employee’s safety.
Safe/competent employees
An employer has a duty to select and employ competent staff.
Employer must know, or ought to know, about the risk a worker is imposing to other employees.
If employ an incompetent person - this will be a breach.
Note: if an employee injures a fellow employee this can mean possible action against (1) employer for breach of duty for safe and competent fellow employees, (2) action against employee who caused harm and (3) employer being vicariously liable.
Safe/proper plant and equipment
An employer owes an employee a duty to provide and maintain safe machinery, plant and equipment.
Safe place of work/premises
The employer has a duty to take reasonable care to ensure that the premises the employee works in are safe. May employees will need to do some/all of their work in premises which are not owned/occupies by the employer. Employer’s duty extends to these ‘third party’ premises too.
Third party premises expectations generally less - court will consider what is reasonable in the circumstances, including place of work, nature of building, experience of employee, nature of work, degree of control exercised by employer and employer’s knowledge of premises.
Safe systems of work
Duty to provide a safe system of work is the widest facet of the employer’s duty and therefore the most frequently argued. Includes the physical layout of the job, the setting of the stage, the sequence in which the work is carried out, the provision of warnings, notices, training, supervision and issues of special instruction.
Employers under a duty to go to the site of work, assess the risk, and plan and organise a safe system for doing the work so as to minimise the risk of injury. Must take reasonable steps to ensure it is complied with.
Employer’s breach/causation/remoteness/defences
Duty on employer is to take reasonable care. Not an absolute duty. Only a reasonable level of precaution meeds to be take.
- Should taken into account and employee’s personal characteristics
Need both factual and legal causation.
Usual rules for remoteness
Usual defences.
Consent: judges very skeptical of consent defence in practice and only successfully invoked in extreme circumstances.
Contributory negligence: frequently succeeds where there is evidence that the claimant employee has failed to take reasonable care of their own safety and this failure contributes to the loss suffered.
What is strict liability?
Where one party is liable despite the absence of any fault. A defendant who is vicariously liable incurs strict liability.
What are the elements of vicarious liability?
1) A tort has been committed by Party A; and
2) Party A is an employee of Party B, or failing that, Party A is in a relationship akin to employment with Party B; and
3) The tort was committed in the course of Party A’s employment/quasi-employment.
Must be a ‘closeness of connection’ between employee’s wrongful act and their employment. Courts focus on the time the wrongful act was committed and all other relevant circumstances.
What kinds of torts can an employer be held vicariously liable for?
Negligence
Assault
Battery
False imprisonment
Defamation
What is the close connection test?
Important there is a connection between the employee’s employment duties and the tort committed: is there a close connection between the employee’s tort and the role they are employed to do?
Eg: In the course of performing duties? Was it on the employer’s premises during working hours?
Ask:
1) What functions or fields of activities have been entrusted by the employer to the employee (nature of job)?
2) Was there sufficient connection between the position in which they were employed and their wrongful conduct to make it just and fair for the employer to be held liable?
An example could be avoiding safety measures because it saves costs - benefiting the company’s business
Can an employer claim indemnity from their employee?
Yes, the court will allow it if it is just and equitable to do so.
Generally, employers will have insurance and insurers will rarely claim contribution.
What is the difference between a contract of service and a contract for service?
Contract of service - employer/employee relationship: A contract under which services are provided in an employer/employee relationship.
Contract for service - employer/independent contractor relationship: A contract under which services are provided by an independent contractor, not in an employer/employee relationship.
What are the two main reasons it matters in tort whether or not someone is an employee?
- Higher level of protection/standard of care owed to employees
- An employer can be vicariously liable for acts of employees
What is the multiple factors test?
Three part approach to taken when considering whether there is an employment relationship:
a) Remuneration in exchange for personal service and mutuality of obligations; and
b) Control; and
c) All other contractural factors consistent with an employment relationship
multiple factors test: Remuneration in exchange for personal service and mutuality of obligations
Means the employee is being paid to fulfil their duties personally. If a worker has an unfettered right to send a substitute to do the work in their place, this cannot be an employment relationship.
Mutuality of obligations means the employer is required to provide work to the employee and the employee is required to do the work. In a zero hour contract, the absence of mutuality of obligations means the worker is unlikely to be deemed an employee.
Multiple factors test: control
The court will consider the amount of control the employer exercises over the worker. The more control that the employer has, the more likely it will be be that the other party is an employee. Consider who has control over the tasks to be done, the way in which the tasks are performed (including who provides the tools) and when and where the work is to be completed.
Multiple factors test: All other contractual factors consistent with an employment relationship
In order for there to be an employment relationship, other contractual factors must be consistent with that. Other factors might point towards an employer/employee relationship are:
a) Tools and equipment being provided by the employer
b) Tax/PAYE treatment as an employee rather than independent contractor
c) The employee being ‘integrated’ into the organisation
d) Parties labelling the relationship as an employment relationship - but the labels given to the party (either way) are not conclusive; and
e) Receiving benefits such as holiday pay and sick pay
What is a ‘relationship akin to employment’?
Concept only used in ‘doubtful’ cases where the tortfeaser is not an employee but nor are they carrying on their own independent business.
What is the test for relationship akin to employment
A relationship is more likely to be akin to an employment relationship if:
a) The employer is more likely to have the means to compensate the claimant than the tortfeaser;
b) The tort has been committed as a result of an activity being undertaken by the tortfeaser on the employer’s behalf
c) The 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; and
e) The tortfeasor is, to a greater or lesser degree, under the control of the employer
What happens when an employer lends their employee to another employer?
General Rule: first employer will remain vicariously liable.
In some exceptional cases dual liability will arise.
