Tort Law and Employers Liability - Essay Example

Tort Law & Employer’s Liability Number Department a) Discussing the basis upon which an employer can beheld legally responsible for the negligent actions of his/her employee The extent to which an employer can be held legally responsible for the negligent actions of his employee falls within the law of tort. A tort is a civil wrong which is legally recognised as the ground for a lawsuit. The wrongs may result in a harm or injury which constitutes the grounds for a claim by the party that has suffered harm. Nevertheless, it is also true that there are torts that also amount to crimes and are liable to imprisonment or punishment. The injured party may sue for compensation or a legal injunction to bar the progression of tortuous conduct, or both. The chief aim of the law of tort is twofold: to provide compensation or relief for the injured party; and to deter employers or service providers from committing the same harms. In the business environment, employers may be held liable for tortuous acts that may be committed by persons other than them. In this light, employers may be liable to tortuous acts committed by their employees and this may be referred to as vicarious liability. In order for an employer to be held legally responsible for the negligent behaviour of his employee, there are certain conditions that are necessary. First, there has to be duty of care, in order for an employer to be held liable for an employee’s actions. In this case, the employer owes people who interact with his work premises and employees duty of care, to ensure that people do not sustain unreasonable loss, harm or injury. To establish the presence of the duty of care, it is important that three elements are established. It must be established that there was an agreement between the employer and the employee, giving the employee the mandate to work under the control and direction of the employer. The agreement between the employer and the employee can be a written one, an oral one or an implied one. An employment contract is considered one as long as in it is employment conditions, and rights, responsibilities and duties that the employer and the employee owe each other. Secondly, according to John (2013, p. 17), it should be established that the employer had an inherent authority which enabled him to assume or exercise control over the employee. The inherent authority in this case may be explicitly stated or implied. Even when not stated, the inherent authority that an employer has over his employer is always seen in the employment conditions, and rights, responsibilities and duties that the employee and the employer owe each other. It is also important that the action performed by the employee which led to tortuous act was carried out within the confines of the employment. In this light, it should be determined that the employee was acting as expected within the terms of employment. This requires that the employee’s acts do not fall within the rage of an illegal act, frolics or independent contractors. Illegal acts such as battery and assaults are outside the scope of employment. Nevertheless, there is no one-to-one way of interpreting this since there are exceptions too. For instance, an employer may still be liable for an act of assault or battery on a buyer at the hands of a security guard. Frolics may also not be extended as a liability to the employer since they cover acts or behaviours that fall outside the expected terms of employment. For instance, if an employee who is supposed to deliver a consignment by a company truck decides to change direction to have sex with his girlfriend and gets involved in a road accident (on his way from or to seeing the girlfriend), his employer may not be held liable. The same case applies to a situation whereby employees are working for the employer without being legally employed by the same. In this case, the employees may be acting for an independent contractor. In most cases, employers are held legally responsible for the negligent actions of his employee in the event that the act that turned out to be tortuous was/ is an unforeseen one. In this respect, it is needed that the employer should have had control over his employees during working or office hours. This observation is significant since the employer had control over his employees’ actions and should be held responsible. Again, it is held that the employer should be in a position to benefit from employees’ actions. The crux of the matter herein is that the employee brings the employee profit and thereby, he should be responsible for the employee’s action that turned tortuous. It is necessary that there be the actual breach of duty by the defendant. A breach of duty takes place when a party (a human person or a legal person) fails to live up to the standards expected of it. For instance, in a personal injury case, a person may be deemed liable for negligence if his breach of duty aids or brings about another party’s injury. In order to determine the duty of care, several factors have to be considered. For one, it is expedient to establish if the defendant has a duty of care toward the plaintiff. From this point, it is important to establish whether the duty of care was of reasonable care, professional liability or premises liability. This is exemplified by the case Vaughan v Menlove (1837) 3 Bing. N.C. 467. In this case, the defendant left his haystack unattended to, despite several warnings. Resultantly, due to poor ventilation, his haystack caught fire and he was held liable for this, since the court held that he was a reasonable man (Wambaugh, 1916, 892). Sometimes, the duty of care may be hinged on the relationship between the employee and the defendant. Given that reasonable care is a form of duty of care where a reasonable man is expected to exercise under specific circumstances and premises liability refer to the care that the owner of land, a building or premises should take to guarantee the safety of another, both can be considered when holding an employer liable for his employee’s action. For example, if an employee accepts a client into a workshop and neither remembers to warn the client of hot surfaces nor prohibits the client from resting his thumb on them, then the employer may be held liable for failing to provide reasonable care. Again, if an employee fails to dispose containers carrying acidic residue so that a client visiting the premises is harmed by the residue, then the employer may be held liable because of premises liability. Again, an employer may be held liable if his employee’s actions or inaction amount to professional liability. For instance, if a client suffers losses because an employee of a firm has failed to accord him with the full extent of the services due to him, then the firm’s employer or owner may be held legally liable for failing to fully observe professional liability. In a closely related wavelength, the extent of the employer’s observation of reasonable care may be factored. If for instance it has been established that the defendant (the owner of the firm or the employer) took the same amount of measures to observe reasonable care which another person in a similar position or office or predicament would have would have expended to thwart harm, then the employer may be absolved from this liability. Still closely related to the factor above, the alternatives that were at the employer’s or employee’s disposal may also be factored when establishing the employer’s liability. If the employer or the employee had several alternatives that may have been used to prevent harm but no steps were made to succour the situation, then it is likely that he may be held liable for the action or inaction of his employee. These alternatives may be alternatives of locations, alternative actions, alternative materials, items, time and designs. In this respect, the court may also determine the burden that may have accompanied the use or consideration of safer alternatives. When the burden of expending safer alternatives becomes considerably heavier than the risks that follow not using them, then the degree of the employer’s liability diminishes. Finally, Morgan (2012, p. 630-3) contends that it has to be established that the breach of duty was the cause of injury, harm or loss on the side of the plaintiff. It is always asked if the claimant may have suffered the damage in the absence of the defendant’s omission or commission. In this case, direct cause must be severed from concurrent and sufficient combined causes. Direct cause will readily make the employer answerable while sufficient combined causes may leave more than one party liable, as can be seen in the case, Corey v Havener, 182, Mass. 250. Concurrent causes may also leave more than one actor liable as can be seen in the case, Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (Cal. 1948). Last but not least, there must be the injury or harm or loss that was caused by an employee’s inaction or action. This may be personal injury, financial loss, damage to property or psychological anguish. The loss or injury must have been caused by a negligent act. References John, B., 2013, “The Basis of Vicarious Liability,” The Cambridge Law Journal, 72 (1), p. 17. Morgan, P., 2012, “Recasting Vicarious Liability,” The Cambridge Law Journal, 71 (3), pp. 615 – 650. Wambaugh, E., 1916, “Vicarious Liability,” Harvard Law Review, 29 (8), pp. 892 – 893. Read More