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#1 Posted : 08 August 2006 10:19:00(UTC)
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Posted By Homer One for our legal experts. Fortunately not a situation just a question. If an employee of a company whilst carrying out the course of their duties causes accidental injury to another person who is a contractor, or sub contractor, to the main company does vicarious liability apply. I know VL leans heavily on negligence, but what if neglect was not the case and it was accidental. I accept that human error could be used a contributory factor but not negligence. Any takers for this one?
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#2 Posted : 08 August 2006 10:23:00(UTC)
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Posted By John Doe What does 'accidental' mean?
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#3 Posted : 08 August 2006 10:27:00(UTC)
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Posted By Homer Without intent or neglect. Negligence as defined in dictionary Failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party.
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#4 Posted : 08 August 2006 10:35:00(UTC)
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Posted By Dave Wilson Would suggest not as employers are VL for the torts of their employees, they are not VL for others however they do have common law duties not to harm, injure etc. The Tort in question could lead to an action for damages but VL would not apply. VL basically means that the 'employer' is reponsible for the act / omissions of his employees as long as he is working inside the scope of his employment and any damages injunc would be paid by the EL insurance if an employee was injured whereas if it was a third party the PI insurance would pay I think!
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#5 Posted : 08 August 2006 10:40:00(UTC)
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Posted By Paul Leadbetter Homer As long as the employee was acting in the course of his/her employment, I think that the employer is vicariously liable. If, however, the injury was caused through something such as horseplay then vicarious liability may not apply. I am sure that there is some case law on this but I can't recall the details. Paul
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#6 Posted : 08 August 2006 10:44:00(UTC)
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Posted By Dazmo Hello, Not sure if this helps but if I remember rightly there was the case of Jones vs. Combined Optical Industries Ltd 1984. IP was accidentally knocked over by colleague and subsequently injured whilst she was bending down at her machine awaiting its repair. The IP claimed negligence on the part of the employer. IP not successful on grounds that more than accidental personal contact is needed to claim negligence from the employer. Kind regards Dazmo
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#7 Posted : 08 August 2006 11:18:00(UTC)
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Posted By gham If he was carrying out a task which he was authorised to do and doing so in an authorised manner then there is a VL case, (Safe systems of work, reasonable forseeability would determine the extent, risk assessment) If it where being done in an unauthorised manner then VL and Contributory neglegence of the employee (VL because of supervision issues and as above bit in brackets, employee guilty of a wrong doing, by deviating from the safe system of work) If it where unauthorised in an unauthorised manner the Liability lies with the employee, there may be a case to answer by the employer as far as VL goes (supervision again), but how much do you need to train and supervise someone Hmmm........... doesn't really help at all sorry!
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#8 Posted : 08 August 2006 11:28:00(UTC)
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Posted By Dave Wilson I think we have lost sight of the question, which was basically does VL extend to non employees the answer is No.
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#9 Posted : 08 August 2006 12:09:00(UTC)
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Posted By Homer Interesting one Dave what you are saying is any non direct labour that is involved in a genuine accident they can not use the term VL as they are not an employee that was not my understanding under normal circumstances.
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#10 Posted : 08 August 2006 12:39:00(UTC)
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Posted By Dave Wilson Yes mate however that is why you should have Public Indemnity insurance as Employers Liability Only protects employees. for instance if say a builder drops a brick of his scaffold and hits another builder from another company he cannot claim VL through the employers EL insurance it would be through another insurance normally PI I think. You still owe them a duty of care etc. I may be wrong but that is my understanding
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#11 Posted : 08 August 2006 12:51:00(UTC)
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Posted By gham Public Liability?
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#12 Posted : 08 August 2006 13:01:00(UTC)
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Posted By Dave Wilson Yes mate
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#13 Posted : 08 August 2006 14:50:00(UTC)
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Posted By Tracy W http://www.safetyphoto.co.uk/subsite/index.htm This site has a lot of case law as well as photos and other helpful informatin. It identifies a number of vicarious liability cases so you can have a look and see where the case was proven or not to see what fits your scenario. The main thing is who has control over the individual, usually the employer but some times if the employee is hired out and the control is completely transferred to a contractor that contractor could end up with responsibility but rare. As long as the person was doing his job as the others have said and not on a "frolic" the employer and or person with control has vicarious liability and it is a strict liability.
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#14 Posted : 08 August 2006 14:53:00(UTC)
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Posted By Salus Vicarious Liability An employer is vicariously liable for negligent acts or omissions by his employee in the course of employment whether or not such act or omission was specifically authorised by the employer. To avoid vicarious liability, an employer must demonstrate either that the employee was not negligent in that the employee was reasonably careful or that the employee was acting in his own right rather than on the employer's business. A way of managing the risk is by trying to push the issue of control back onto the supplier of the worker, which could include the following: • Insofar as possible, the supplier of the employee dictating the workers' method of work • Ensuring that proper training has been given to the worker through a specific clause in the contract for the supply of the worker • Rejecting any worker who the hirer thinks may be unsuitable Ultimately, the issue of vicarious liability is something that will be decided on the facts of each case, but by ensuring that employees are properly trained, a hirer may prevent the negligent act or omission, for which they may held to be liable, happening in the first place. Section 37(1) of HASAWA may be of some interest
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#15 Posted : 08 August 2006 20:42:00(UTC)
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Posted By Adrian Watson The questions were: 1 "If an employee of a company whilst carrying out the course of their duties causes accidental injury to another person who is a contractor, or sub contractor, to the main company does vicarious liability apply." Yes. 2. "... but what if neglect was not the case and it was accidental." No, because there would be no liability. Regards Adrian Watson
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#16 Posted : 09 August 2006 16:06:00(UTC)
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Posted By Bob Shillabeer Good afternoon all, Vacarious Liability, as explained by my old and trusted friend Croners, arises when one person (who has not committed a wrongful act) is legally responsible for the acts of another person which cause injury or damage to a third person. There are two general circumstances to consider a) the liability of an employer for the wrongful acts of his employees which are committed in the course of their employment, and b) the liability of the employer for acts of an independent contractor. Croners testifies that the act involved does not need to be authorised by the employer in Kay v ITW Ltd a fork-lift truck driver found the path was obstructed by a lorry, although not authorised to do so the fork-lift truck driver jumped into the lory cab and moved the lorry and in doing so injured a fellow employee. The employer was held liable for the act was for the purpose of the employer's business. The main point is the employer is liable for all acts of his employee if the act was in connection with the employer's business irrespective of who the injured party is another employee, a contractor or a subcontractor to the contractor or even a member of the public.
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#17 Posted : 09 August 2006 16:19:00(UTC)
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Posted By Alan Hoskins If the action (or omission) was accidental, would there not be a liability in respect of the employer's primary duty of care? Thus vicarious liablility would not be relevant. Alan
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#18 Posted : 10 August 2006 09:40:00(UTC)
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Posted By Bob Shillabeer Hi All Why are we talking about accidental? Accidents don't just happen they are caused by some act or ommission by an individual or an unsafe condition often created by an individual. So why do people posting responces think accidental means a let off against vicarious liability. To succeed in a case of VL all the appellant has to show is a duty of care was breeched by the employer of the individual who failed to ensure that what he/she did did not result in the injury. A simple case of the employee doing something in the undertaking of the employer's business for the benefit of the employer even if that act was not authorised and in fact could be prohibited. So the accidental thuing is a complete re-herring
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#19 Posted : 10 August 2006 12:39:00(UTC)
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Posted By Bob Shillabeer Sorry folks got a bit mixed up I intended to say that where an act or ommission of an employee leads to a third person being injured the appellant simple has tp demonstrate a duty of care was breeched by the employee when acting as an employee doing something associated wth the undertaking of the employer's business for VL to applicable.
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