FTQ’s – H&S Law

What is “vicarious liability”? 

Is a legal phrase defining the duties and responsibilities placed on one party regarding the conduct of another party, where both parties have a particular legal relationship.

In terms of health and safety law, this means that acts performed by employees that lead to accidents, harm, damage and loss, the employer can be held accountable for the employee’s actions. This in turn, means the injured party has the ability to sue the employer for any associated breaches of duty of care, resulting in a tort claim in the civil courts.

In addition, the employer can be prosecuted in the criminal courts for breaches of H&S legislation (normally HASWA1974).

Originally, vicarious liability was limited to negligent acts. It has now been extended to include intentional ones.

This places more onus on the employer to ensure the conduct of their employees.

Does vicarious liability mean that only the employer is held responsible and that the person involved in the act is not accountable? 

No. Vicarious liability does not remove or absolve any duties and responsibilities from the person perpetrating the unsafe act (or omission of an act).

Vicarious liability is applied in addition to any duties on the person and both the person involved and their employer can face claims and criminal prosecution.

How far does vicarious liability go? 

Difficult to answer as each case brought before courts is judged on their own merits and in areas of this nature, precedents are set where unique situations occur.

One example is: a claim was brought against an employer when one person was harmed in a car accident. The claimant was a passenger in a car driven and owned by another person. A claim was made against the driver’s employer, as the accident occurred during works hours, although the journey being undertaken was not company related – it was a private “lift”.

The court determined that the company was not liable, as it was activities outside of the employers duties. It also helped that the employer had put in writing that private lifts were prohibited during working hours.

The decision was based on precedent created in 1854, where Servant’s actions could be a cause for a claim against their Masters, if the Servant was acting in accordance with the Master’s wishes. However, where the Servant indulged in “frolicsome behaviour” outside of their Master’s implied and express wishes, then the Master could not be held responsible.“