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.
•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 law of contract. •Jeremy Bentham and the philosophy of laissez faire i.e. there should be no restriction on freedom of contract. •Legislation preventing workers collectives (i.e. trade unions).
The unholy trinity
•Based upon a fictitious term in the employment contract that servants accepted the natural risks of employment including the natural risks of employment including negligence by fellow employees. •Volenti non fit injuria:
•Will only be available today in the most extreme cases e.g. ICI v. Shatwell •Contributory Negligence:
•Abolished by statute as a complete defence.
•Doctrine did not apply where the master had breached a personal duty of care •Therefore, as the courts became more sympathetic to servants the notion of a personal duty was expanded. •Contributed to the development of workers compensation legislation. •Common employment as a defence was legislatively abolished in the mid 20th century. The Employment Category
•The duty is owed through precedent, an established duty category. •It is the content and scope of that duty which may be contentious. •Traditionally the duty owed has been divided into 3 aspects: •Proper plant, appliances and works;
•Competent selection of staff (established in Wilson v Tyneside Window Cleaning); •Safe system of work.
•There are no fixed technical rules and decisions in similar cases are only a guide. •Need to balance the relevant factors because the risk is usually foreseeable. •Expert evidence is not conclusive.
•Re the nature of the relationship compare:
Raimondo v. State of SA (1959)
Bankstown Foundry v. Braistina (1986)
Bus v. SCC (1989)
Raimondo’s Case (1959)
•The nature of the relationship is not one of ‘nurse and imbecile child’. •Experienced painter and the risk of injury was very slight. •Employee could appreciate risk of injury as much as the employer. •Unlikely that warning would have made any difference.