Personal Injury
By Conal McGarrity
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Accident at work? Vicarious Liability Explained

Accident at work

The long-standing common law principle of vicarious liability is often central to making a claim for compensation in relation to an accident at work. Basically, vicarious liability means that victims of an accident at work are able to sue their employer rather than the person who caused an injury. Before an employer can be held liable there are several components of vicarious liability that must be established.

Employee-Employer Relationship

The first criteria that must be satisfied is that a specific employee-employer relationship must exist between the parties. This can be evidenced by an existing contract of employment, however, this is not an absolute requirement for establishing that a relationship exists. In an accident at work case, the Court will use its discretion to determine whether or not a relationship exists between employee and employer. The degree of control exercised by an employer is one of the tests for vicarious liability. This will be applied in less straightforward cases where there is ambiguity over whether a relationship exists between the parties. Disputes can often arise when the employer-employee relationship does not adopt a traditional approach. A common example of this is when an independent contractor is working for an employer. The test usually applied in these cases is whether that individual was employed under a ‘contract of service’ or a ‘contract for services’. There is no defined approach to take when determining whether an employee-employer relationship exists. The Court will consider a wide range of factors for each specific case.

Committing a Tort

The second criteria which must be satisfied is that a tort (a wrong) has been committed by the employer. In the context of an accident at work the ‘wrong’ committed will often be negligence or breach of statutory duty. The tort of negligence has three elements;

  • there must be a legal duty of care owed to the employee

  • a breach of duty occurred and

  • the breach must have resulted in damage to the employee.

Common examples of negligence that arise in a working environment includes;

  • an employer failing to risk assess

  • failing to provide protective equipment

  • failure to provide adequate training

  • failing to provide supervision and;

  • failing to ensure a safe working environment for employees.

In practice this can apply to a range of different scenarios. Take for example, an apprentice joiner working on a site in his first week. His boss asked him to operate the hydraulic saw, even though he hadn’t received training. He loses control of the saw and cuts a fellow employee’s arm. This would be a very clear example of failing to provide adequate training and the employer will, therefore, be negligent. In this case, the employer will also be in breach of his statutory duty under Article 9 of the Provision and Use of Work Equipment Regulations (Northern Ireland) 1999. This necessitates that every employer ensures that all persons who use work equipment has received adequate training for health and safety purposes.

Acting in the Course of Their Employment

Finally, criteria states that employees must have been acting in the course of their employment when an accident at work occurred. They need to successfully establish that their employer was vicariously liable for their injury. If an employee has acted outside of the remit of their employment, then the employer will not be liable for his injuries.

Lister v Henley Hall Ltd

Again, there is no defined approach to establishing whether an employee has acted in the course of his employment. The Court will consider a variety of factors when reaching its conclusion. The case of Lister v Hesley Hall Ltd (2002) established an integral test for determining whether an employee was acting in the ‘course of his employment.’ In this case, the Defendant was employed as a warden at a school for boys with emotional and behavioural difficulties. But in the course of his employment he systematically abused the boys. The House of Lords held that it was fair and just to hold the defendants vicariously liable. The defendants torts had been so closely connected with his employment. In the context of an accident at work claim the same principles apply. The modern approach taken by the Courts is to broaden the definition of ‘course of employment’. This is in order to enable victims of an employer’s negligence or breach of statutory duty to obtain compensation. PA Duffy and Company have expert personal injury solicitors who are vastly experienced in vicarious liability claims, particularly in relation to accidents at work. The Courts in Northern Ireland, and indeed the Republic of Ireland, can adopt quite a flexible approach to vicarious liability. They aim to ensure that victims are not unfairly or unjustly punished for wrongs committed by their employers.

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