Employers’ Liability

Employers’ primary liability

Vicarious liability

Identifying an employment relationship

Employers’ primary liability is where an employee sues their employer for breaching their
duty of care to the employee. This is distinguished from vicarious liability where the
employer, while not at fault himself, is held responsible for the torts of his employees.

Employers' primary liability Employers' vicarious liability

Employer /
Employer
tortfeasor

Employee Employee
Claimant
/ claimant / tortfeasor
Employers’ primary liability

Employers duty of care to employees = to take reasonable precautions to ensure an

employee’s safety.

Obligations
Safe / Safe / proper Safe place of
within Safe systems
competent plant and work /
employer's of work
employees equipment premises
duty
Vicarious liability
The victim will have a claim against the
employee personally. But should the victim
also have a claim against the employer on
Employer – the basis of the employee's negligence?
hardware shop

?
An employee /
employer
relationship

Employee - delivery
driver employed by Victim
a hardware shop Negligent driving
causes an accident
The rationale behind vicarious liability

As already mentioned, vicarious liability is an example of strict liability. What is the

justification for imposing liability on a party not at fault? The following justifications have
been cited for vicarious liability – some are more convincing than others.

Choice of
Control / employees Benefit /
supervision burden

Deep Raising
pockets Rationale behind standards
vicarious liability
Elements of vicarious liability
A tort has been committed by
To establish that Party B should be Party A
vicariously liable for a tort committed by
Party A it must be shown that the three
elements on the left are satisfied. and

Party A is an employee of
Party B Party B, or failing that, Party A
is in a relationship akin to
? employment with Party B

and

Tortfeasor The tort was committed in the

Victim
(Party A) course of Party A's
employment / quasi-
employment
Identifying an employment relationship

This element covers three areas:

a) How to determine whether a worker is an employee for the purposes of tort law;
b) How to determine whether someone is in a relationship akin to employment, for the
purposes of establishing vicarious liability; and
c) How to determine who might be responsible for an employee's torts when one
employer 'lends' an employee to another employer.
 Employers’ Liability

Employers’ primary liability

Vicarious liability

Identifying an employment relationship