Employer's Liability & Vicarious Liability Flashcards
(15 cards)
What is employers’ primary liability?
Employers’ primary liability refers to common law negligence by the employer in failing to take reasonable care for the safety of employees. This is direct liability, as opposed to vicarious liability.
How is primary liability different from vicarious liability?
Primary liability: Employer is personally at fault.
Vicarious liability: Employer is held responsible for the tort of an employee.
What are the four key aspects of an employer’s duty
- Safe and competent employees
- Safe and proper plant and equipment
- Safe premises
- Safe system of work
What standard applies to breach?
Objective standard — what a reasonable employer would do
How is contributory negligence treated?
Partial defence. Common in employment.
Bux: 40% reduction for not wearing goggles.
Clifford: 50% reduction for not using cream.
Consent?
Consent only applies if genuine agreement, free from pressure.
What is vicarious liability?
When one party (e.g. employer) is held liable for a tort committed by another (e.g. employee) because of a specific relationship.
Is fault required for vicarious liability?
No. It is a form of strict liability — liability without fault.
What are the three elements to establish vicarious liability?
a) A tort was committed by Party A
b) Party A is an employee (or in a relationship akin to employment)
c) The tort was committed in the course of employment
Close Connection Test?
Test:
a) What was the field of activities?
b) Was the tort closely connected to those activities?
Contribution from an employee?
An employer found vicariously liable can seek contribution from the employee, if just and equitable.
What is a contract of service?
A contract creating an employer–employee relationship.
What is a contract for services?
A contract with an independent contractor.
Multiple Factors Test? What are the three parts of the test?
a) Remuneration in exchange for personal service and mutuality of obligations
b) Control
c) Other contractual factors (tools, integration, tax, benefits)
Relationship akin to employment?
Test for relationship akin to employment includes:
- Employer can compensate
- Activity on behalf of employer
- Part of business activity
- Employer created risk
- Control over tortfeasor
