Employers Liability Flashcards
(25 cards)
Who is an employee
Traditionally difference between contract of service and contract for service, Who has control over what the employee does and how he does it
Test of who is an employee
Integration test
What is the Integration test
1) provide work/skill for remuneration for the employer
2) Employee agrees (express/implied) to be subject to control
3) Other provisions of the contract consistent with it being either a contact for service or for service
Lent employees
For the permanent employer to show they have given control to the other company, Labor only easier to prove the labor and equipment
Joint Vicariously liable
A company can be held liable for the actions of the people that they have a control over where there are two -both can be liable
Agency workers
Common for agency worker to have a contract with the agency - the agency have a contact with the end user but each case must be determined on its own facts - General rule a contract will be implied only when relevant and necessary and the business reality
Relationships akin to a contract
Whilst there may not be a contract or payment if control on what they do and how they do it is followed the is can be classed as akin to a contract and what is do is an integral part of the purpose of the business
Employers personal duty of care
Employee may establish the employer breached personal duty owed to them
Duty to take reasonable care for employee safety
Competent staff
Adequate materials
proper system of wok
adequate supervision
Duty to employees family
Duty can only extend if they are aware of the risk or the risk is foreseeable
Duty does not extend to pure economic loss
general liability for pure economic loss does not exist unless there was an express or implied term in the contract
Duty in relation to work stress/Psychiatric damage
an employee should be in no better position by virtue of a contract then an employee regarding the recovery of compensation for Psychiatric damage
Duty in relation to work stress
Once an employee know of a particular difficulty it must be addressed if not can be held liable not for the initial difficulties but any ongoing or subsequent Heath & Safety at work act 1999
Competent staff Violent conduct/practical jokes
Unlikely to be Vicariously liable unless they are aware of the employees propensity for this behavior they may be personally liable
Plant and equipment
Employer should provide necessary equipment and maintain to a reasonable condition
Premises
Not require to prevent all accidents but take reasonable precautions to prevent it
Safe system of work
Workers are often careless for own safety - employers must provide adequate systems of work
Breach Causation and remoteness - employee liability
Breach - Duty of the employer is discharged by the exercise of due care and skill
Causation and remoteness same as in negligence
Defenses - employee liability
Volenti is available but rarely successful
Contributory negligence
Vicarious liability- definition
Vicarious liability one person made legally responsible for the tort committed by another
Vicarious liability - why use it
Employers in best position to encourage good practice
Occasional accidents part of life - employer gains benefit so mush also bear the loss
Employers will normally have deeper pockets
costs spread over wider body
Vicarious liability Hurdles
There is a contract of employment or akin to employment
The employee committed a tort
The tort was committed during the course of the defendants employment
Course of employment
An employer can only be held liable for the torts committed during the course of employment even if the employee has been prohibited from doing something previously
Frolic of their own
Where the employee does something outside his normal work is deemed to be on a frolic of his own
