Employers Primary Liability and vicarious liability

Question 1

What is the difference between employers primary liability and employers vicarious liability?

Answer 1

Employers primary liability is where the employer is negligent in the workplace and the employee suffers.

Employers vicarious liability is a mechanism that can be used by a claimant that they can use to claim against an employer for something that has happened by one of their employees

Question 2

what are the four areas/obligations of an employer?

Answer 2

1) safe/competent employees
2) safe/proper plant and equipment
3) safe place of work/premises
4) safe systems of work

Question 3

What are the elements of vicarious liability?

Answer 3

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 (if not sure- apply economic realty test)

and

3) The tort was committed in the course of Party A’s employment/quasi-employment (close connection test may be needed)

Question 4

What happens if an employee is leant from one employee to another- who is vicarious liable?

Answer 4

Original rule is that the original employer is liable, but a rebuttal can be the person who had most control over the employee at the time. Courts can also find dual liability

Question 5

What is the close connection test

Answer 5

1) what function/field of activities has the employer entrusted to the employee?

2) is there a sufficient connection between the position in which the employee was employed and the wrongful conduct to make it just for the employer to be held liable?

Question 6

what is the multiple factors test/economic realty test?

Answer 6

This is the test for considering whether there is an employment relationship. Three part:

1) Remuneration in exchange for personal service and mutuality of obligations

2) Control

3) All other contractual factors consistent with an employment relationship