Employers Liability in Negligence
NEGLIGENCE: THE EMPLOYER’S DUTIES
Employers Liability in Negligence
• May be personally liable to employees who injure themselves.
• May be personally liable to employees who are injured by another employee or sometimes by an independent contractor employed by the employer.
• May be vicariously liable if one employee is injured by another employee.
NOTE:
• Employees may also be able to recover from statutory workers compensation schemes.
• Employees’ rights at common law may be restricted by the same schemes.
• e.g. WorkCover Queensland Act 1996
Other Possible Causes of Action Against an Employer
• The tort of breach of statutory duty (separate tort).
• Breach of an express or implied term of the contract of employment (contracts).
• Non-employees may be able to sue an employer on general negligence principles or in some other select duty category.
• Employers may be vicariously liable to non-employees injured by employees.
Summary
• An employer may be:
• Personally liable in negligence to injured employees and third parties;
• Vicariously liable to employees and third parties injured by employees;
• Liable otherwise e.g. breach of statutory duty.
Why may employers be liable to employees both personally and vicariously?
• One answer: personal liability relates to negligence only; vicarious liability also relates to other torts e.g. conversion.
• More importantly: the historical context of the unholy trinity of defences once available at common law to protect employers from liability to employees in negligence actions.
The historical context
• The earliest English legislation was designed to prevent the workers who had survived the ‘Black Death’ of 1348 from demanding wage rises and/or leaving their current employer.
• In the 17th century, it was legally permissible to discipline with a cudgel but not a sword.
• The 19th century:
• Industrial revolution (started c1750).
• Relationship of master and servant is based upon the
Employers Liability in Negligence
• May be personally liable to employees who injure themselves.
• May be personally liable to employees who are injured by another employee or sometimes by an independent contractor employed by the employer.
• May be vicariously liable if one employee is injured by another employee.
NOTE:
• Employees may also be able to recover from statutory workers compensation schemes.
• Employees’ rights at common law may be restricted by the same schemes.
• e.g. WorkCover Queensland Act 1996
Other Possible Causes of Action Against an Employer
• The tort of breach of statutory duty (separate tort).
• Breach of an express or implied term of the contract of employment (contracts).
• Non-employees may be able to sue an employer on general negligence principles or in some other select duty category.
• Employers may be vicariously liable to non-employees injured by employees.
Summary
• An employer may be:
• Personally liable in negligence to injured employees and third parties;
• Vicariously liable to employees and third parties injured by employees;
• Liable otherwise e.g. breach of statutory duty.
Why may employers be liable to employees both personally and vicariously?
• One answer: personal liability relates to negligence only; vicarious liability also relates to other torts e.g. conversion.
• More importantly: the historical context of the unholy trinity of defences once available at common law to protect employers from liability to employees in negligence actions.
The historical context
• The earliest English legislation was designed to prevent the workers who had survived the ‘Black Death’ of 1348 from demanding wage rises and/or leaving their current employer.
• In the 17th century, it was legally permissible to discipline with a cudgel but not a sword.
• The 19th century:
• Industrial revolution (started c1750).
• Relationship of master and servant is based upon the