Employers' Liability

Question 1

Employers’ common law duty

Answer 1

Employer owe a primary personal duty to employees to take reasonable care for their safety at work

Primary: non-delegable
Personal duty: if knoweldge of specific vulnerability, should take extra precautions

Question 2

Employers’ specific duties

Answer 2

Competent staff: only liable if knew of incompetence
Adequate material (plant, equipment and machinery)
Safe system of work and supervision: training, monitoring, take action, continually assess risks
Safe place of work (including premises sent to)

Question 3

Non-delegable meaning

Answer 3

Employer cannot say they are not responsibility by saying it delegated responsibility to employee / independent contractor

Question 4

When will an employer breach common law duty?

Answer 4

Fall below standard of a reasonable employer

Question 5

What does it mean that employers’ common law duty is personal?

Answer 5

(extra precautions if aware of special circumstances)

Question 6

Causation - employers’ common law liability

Answer 6

Breach must have caused loss
- If breach is failure to provide safety equipment, may not be satisfied if can show employee would not have used it regardless
- if dangerous environment, failure to wear equipment unliekly to be an intervening event

Question 7

What is vicarious liability?

Answer 7

Employer is also liable for employees act (jointly liable)

C can sue employer as a well as employee.

C does not need to prove that employer was at fault.

Question 8

When will an employer be vicariously liable for act of employee?

Answer 8

1. Worker committed a tort
2. Worker is an employee or relationship akin to employment (NOT liable for independent contractor)
3. Tort was committed in teh course of employment

Question 9

An employee can only sue employer in common law if they are in an employment relationship. What is the economic reality test?

Answer 9

1. Renumeration in exchange for personal service and mutuality of obligations (salary / set hours)
2. Control (greater control employer has more likely an employee)
3. Contractual factors consistent with employment relationship (provide eqipment, holiday pay, PAYE, labels)

Question 10

Meaning of course of employment for vicarious liability

Answer 10

Tort will be in course of employment
- expressly or impliedly authorised by employer
- authorised act but doing so in unauthorised way
- incidental to proper duties (e.g. lunch break)
- expressly prohibited if furthers business
- minor detour + still going about employers’ business

If intentional tort:
1. tort is closely connected with employment (sufficient connection between position employee is employed and wrongful conduct to make ti fair, just adn reasonable to to impose a duty)
2. fair, just adn reasonable for employer to be held liable

e.g. abusing customer if arises from serving customer / child abuse if warden of children’s home.

Question 11

Common law right of indemnity - employers in vicarious liability cases

Answer 11

Employer can seek to recover damages from employee but employers tend to not do so

Question 12

What is a relationship akin to employment? (to determine whether employer is vicariously liable)

Answer 12

Not independent contractor and not an employee:
- employer more likely to have means to compensate V than employee
- Tort was committed as a result of avtivity undertaken on empployer’s behalf
- employer created risk of tort; and
- work is under employer’s control

e.g. supply teacher

Question 13

Vicarious liability and lending employees

Answer 13

Original employer is liable

Hirer may be liable if high level of control + provides equipment

Both may be liable if similar levels of control