...with the employee performing work for the company. This includes acts that were both known and unknown by the employer. Vicarious liability and respondeat superior are two large factors in businesses being liable for their employees, and it is vital to understand what does and doesn’t fall under these doctrines. Businesses have a duty of care to hire, train, supervise, and retain employees that are responsible and ethical members of society; if an employee commits a criminal act while representing the business, then the employer has breached its duty of care. Employees represent the business they work for, and a business reaps benefits of its employees as far as sales and goodwill are considered, therefore the business should be held responsible for its employee’s acts because the employee is acting on behalf of the business (“Defining an employer’s duty of care,” n.d.). There are a few key reasons that a business should have civil liability for the criminal acts of its employees. Imposing liability on a business may give it an incentive to invest in higher standards for hiring, supervision, and retention of its employees to prevent these crimes from occurring. From a firm’s standpoint, it is much more favorable investing in the hiring and training of employees rather than paying for legal fees resulting from a lawsuit. Additionally, liability on a business-level has an added benefit of allowing the government to simply penalize the firm for breach of duty of care instead of...
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...to grow economically. It ranges from unreasonably high productivity standards and hazardous working environment that make worker to become vulnerable to risk to t heir mental and physical health. The ultimate outcome is unhealthy workforce that is relatively less productive than the relaxed and contented workforce. The business entrepreneurs and the workers alike are faced with the problem of continuous work related stress and thus the policies and decisions are hence regulated by the law. To this end, the common law duty of care is a provision that was designed to hold employers liable for psychiatric related illness that employees suffer and more specifically illness arising because employees are made to work under stressful conditions. This paper is aimed to critically evaluate the common law duty of care and its effectiveness with respect to psychiatric related illness as a result of working under stressful condition. The establishment of the common law of duty towards workers has enhanced employers to provide good working conditions to lower psychiatric related illness due to workers stress. The claims in the psychiatric injury bin the work place context have not been restricted to involvement of the plaintiff being injured or witnessed the death injury of another. These claims include to circumstances such as less traumatic but still damaging and stressor that arise in the workplace like bullying and work stress (Butler, 2006). The work place stress is perceived as problematic...
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...Employer's Duty of Care and Issues of Compensation August 9, 2010 Law, Ethics, and Corporate Governance LEG-500 Abstract For the purposes of this assignment we independently viewed a video entitled “Employer's Duty of Care and Issues of Compensation.” In the video, the car dealership is running a special promotion offering free oil changes in order to get existing customers back into the showroom. An employee notices a backlog of customers waiting in line for their oil changes and notifies the owner of the dealership, Herman. Herman calls his newly promoted service manage, Jake, to explain the backlog. Jake emerges from the service bay holding his bloody thumb in a rag. He explains as certified auto mechanic, he is doing a thorough job on each car en though he is working overtime without overtime pay. The manager tells him to do a quick, “lousy” job of the oil changes just to get them done. He doesn't care about Jake's mechanics standards. Jake retaliates by complaining he's hurt his thumb due to his long hours and threatens a worker’s compensation claim if he isn't compensated fairly for his work. The video give rise to a number of ethical questions. The purpose of this paper is to address these questions as detailed in the assignment using readings on employee and consumer privacy law, as well as business ethics and corporate policy. Answers to Assignment #3 Questions The questions (in bold type face) follow as detailed in our assignment. 1. Explain...
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...Employer’s Duty of Care Jamie Martinez Law, Ethics, and Corporate Governance Professor Boneita Campbell August 7, 2011 Introduction As employees, we are held to the same standard to act in good faith in whatever position we hold. Employers also have that same duty to take care of the employees that perform the day to day tasks to make the company successful. Whether it is through extra time off, increase in pay, or better benefits employers have an obligation to their employees. Both the employer and employee have a common law duty of care to each other and to other employees. The relationship that employers have with their employee requires that duty of care is displayed by both parties. In addition the Health and Safety at Work Act 1974 requires employers and employees to take reasonable care for the health and safety of everyone at work, including visitors and other non-employees who use the premises. Explain whether Jake’s actions are in or out of his “scope of employment” Accepting a position in an organization means that you have signed an agreement to form a relationship with your employer. The employee is expected to be loyal, obedient, and carry out the duties that he has agreed to perform as stated a contract that would have been signed at the time of hiring. Employees are required to be honest to their employers and must work to the best of their abilities. The employee is supposed to be following all lawful and clearly given command of his employer...
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...especially Mr. Manoranjan Bhakta FCA (Managing Director) who gave me all possible important information and helped me with the actual contracts and scenarios of the business. I would also like to thank my respective course teacher Md. Ashiqur Rahman Bhuiyan for his exemplary guidance, monitoring and constant encouragement throughout the whole semester. Lastly I would like thank my respective parents, siblings, friends and colleagues to support and helped me to successfully complete full assignment . Table of Contents Contents TORT: 3 Intentional Tort: 3 Strict Liability: 3 Negligence: 4 Duty of care: 4 Breach of Duty: 5 Causation: 6 Vicarious Liability: 8 Reference: 12 LO 3 Understanding the principles of liability in negligence in business activities. TORT: The liability of the violation of a fixed law, law arises primarily; this duty is towards persons generally and its breach is capable of redress by action unliquidated damages. This is a civil wrong, in the sense that it is committed against an individual, not the State. The essence of tort law is that a person has certain interests that are protected by law. These interests can be protected by a court granting a sum of money, known as damages. There are increasingly limited circumstances where the victim of a tort may avail himself of self-help. Types of Tort: There are basically three types of tort:...
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...actions. For example, an employer of an employee who injures someone through negligence while in the scope of employment is vicariously liable for damages to the injured person. In contrast, a defendant who engages an independent contractor is not liable to others for the acts or omissions of the independent contractor. An independent contractor is a person who performs services for another person under an express or implied agreement and who is not subject to the other's control, or right to control, over the manner and means of performing the services. Various Liability Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently. It is also referred to as imputed Negligence. Legal relationships that can lead to imputed negligence include the relationship between parent and child, Husband and Wife, owner of a vehicle and driver, and employer and employee. Ordinarily the independent negligence of one person is not imputable to another person. Other theories of liability that are premised on imputed negligence include the Respondeat Superior doctrine and the family car doctrine. The doctrine of respondeat superior (Latin for "let the master answer") is based on the employer-employee relationship. The doctrine makes the employer responsible for a lack of care on the part of an employee in...
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...Employer’s Duty of Care Law, Ethics, and Corporate Governance Strayer University Aug 6, 2011 1. Explain whether Jake’s actions are in or out of “his scope of employment.” 2. Explain whether or not Herman is responsible for Jake’s injury. 3. Explain whether or not Jake should be paid the overtime. 4. Explain the rights Jake and Herman have individually in this scenario Table of Content Jake’s scope of employment……………………………..........................Page 4 Is Herman responsible for Jake’s injury?………...................................Page 6 In or out of “his scope of employment…………………………………..Page 6 overtime…………………………………………………………………...Page 7 Overtime…………………………..………………………………………Page 8 References ………………………………………………………………...Page 9 Jake’s scope of employment The relationship between the employer and employees determines the success of a business to a great extent. The employee owes his loyalty and obedience to his employer. He has to be honest to his employer and must give his best in his work as he is bound by the contract he would have signed at the time of his appointment. The employee is supposed to be following all lawful and clearly given command of his employer and any deviation or dereliction of duty is punishable under law as well. So the employee is bound by rules and regulations at his work place and is liable for a penalty or punishment in case of violation of any kind. On the other hand the employer is also bound to abide by...
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...Contents 1 Introduction 2 2 Describe the nature of general tortuous liability comparing and contrasting to contractual liability (3a) 3 3 Explain the liability applicable to an occupier of premise (3b) 5 4 Explain the liability applicable to the staff and discuss the nature of employer liability with reference to vicarious liability and health and safety implications of his employees (3c) 7 5 Distinguish strict liability from general tortuous liability with reference to Prime Computers (3 d) 10 6 Explain and apply the various elements of the tort of negligence and analyse the practical applications of breach of duty and remoteness in the given situation (4 a, b) 11 7 Conclusion 15 8 Reference 16 Introduction As a legal executive in a firm of solicitors, some clients have approached and seeking advice on several claims and legal disputes, which have recently arisen to them. I am required to write a report for the following contents: 1. General tortuous liability in comparison to contractual liability. 2. Vicarious liability and health and safety issues. 3. Strict liability in comparison with general tortuous liability. 4. The various elements of the tort of negligence. Describe the nature of general tortuous liability comparing and contrasting to contractual liability (3a) A tort is a legal wrong, and the principle is the law gives various rights to person, such as right of a person in...
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...Nursing Law Duty of care: This can be defined as duty that healthcare professionals owe their client in order to avoid unreasonable risk of harm to patients receiving nursing care under them. Duty of care is expected where a person is responsible for the care of others. A nurse has a legal duty to be careful when nursing a patient If a health care professional is careless in his or her nursing practice, this is known as breach of duty of care and such professional can be held liable for such act or omission. Negligence: Negligence can be defined as an actionable harm caused to other people under one’s care. As an example, if a nurse was negligent in administering an incorrect dose of a medication; which might result in a patient sustaining injury. This means that the nurse responsible fell below standard of care expected of them. Consent: Is a legal obligation that is required from all persons who are in the care and treatment of a patient, before initiating any procedure or treatment. As a broad principle, obtaining the consent of a person prior to undertaking a procedure or treatment is respectful and therefore, should be attended to as a matter of course by all health professionals. For example, a patient has a legally enforceable right not to be touched by health care worker without a valid consent. Hence, for consent to be valid, it must: * Be informed, * Cover the actual procedure, * Be voluntarily given by the client, and * Be obtained by a patient...
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...The first issue is to look at whether June is considered an employee of Westwood or an independent contractor. This can be determined using the five common law tests. Firstly, using control test in Yewens v Noakes (1880), it was held that ‘a servant is a person subject to the command of his master as to the manner in which he shall do his work’. Secondly, the integration/organisation test is an alternative test to determine if an employee is “part and parcel of the organization”. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513, courts held that the timber worker, Gray was not an employee of Brodribb but rather independent contractor due to the control test, as the degree of control was minimal. Thirdly, the business/economic reality test checks if the worker has engaged him or herself to perform the services, performing them as a person in business on his or her own account. In Market Investigations Ltd v Minister of Social Security (1969) 2 WLR 1, the court found that the extent of control exercised by the company was so extensive as to be consistent with the interviewer being engaged under a contract of service. The fourth test is the ready mixed concrete test which is a different approach to identify employment. However, this test has not generally been accepted because of the third consistency which states “the other provisions of the contract are consistent with its being a contract of service” provides no insight. Lastly the multi-factor test, in the case...
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...EMPLOYER'S DUTY OF CARE KATHRYN J. STAPLES DR. BONEITA CAMPBELL LAW, ETHICS, AND CORPORATE GOVERNANCE 7 AUGUST 2011 EMPLOYER'S DUTY OF CARE In the video, the employer's duty of care is called into question. But to analyze the video, employer's duty of care must first be defined. "An employer has a duty to ensure, as far as reasonably practicable, that workers and others are not exposed to risks to health or safety arising from the conduct of the employer's business. An employer must carry out the general statutory duty of care by proceeding, in a systematic way, to: identify hazards; identify, and assess the seriousness of, risks resulting from the hazards; and determine appropriate risk management measures." (Legislation, 2008) With this is mind, does Herman have an employer’s duty of care in regards to Jake's injury and his overtime? Explain whether Jake’s actions are in or out of “his scope of employment.” Jake's actions are within his scope of employment. Jake was hired and promoted as a certified automobile mechanic and even though Herman directs him to just change the oil, Jake owes it to his certifications to do the best possible job since he has standards to comply with based on certification requirements. These standards includes checking the brakes, tires and transmission. He is doing a thorough job and making sure the vehicle is safe to drive. By being so thorough, Jake is meeting the expectation of standards from a certified automobile mechanic...
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...Scenario 2: Negligence and Vicarious Liability Problem Question (P3.1, P3.2, P3.3, P4.1, P4.2 and M3) Task description: Imagine that you are an In-House Lawyer (IHL) working for QuickFix. The Managing Director (MD) has asked you for written advice on whether the company has any liability in tort law towards Barbara and Clive. With this in mind please produce a report for the MD, which sets out the law relating to negligence and vicarious liability and how it applies to this scenario. Your report should be no longer than 3,000 words. 1 Differences Between Liability in Tort and Contractual Liability Contractual liability concentrates on what is in a contract and the obligations between the two or more parties of the contract. Both parties in contractual liability contracts are controlled by it and the terms stated in the contract cannot be broken. The terms of a contract must be fulfilled by both of the parties; otherwise consequences will follow if one party breaks the terms. Contractual liability contains conducting agreement and liability between businessperson and merchant. Tort law is used in situations where a person has done harm to another person. Liability varies significantly in tort law and contractual law in terms of issues of content. Contractual liability is based on agreement but tort law’s liability is not based on agreement. Also the way court provides compensations and how it deals with these two reflects on the difference between them. Contractual...
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...Employee Rights Prof Dewey Balzhiser 8/8/2011 Course: Law, Ethnics, and Corp Governance. 1. 1. Explain whether Jake’s actions are in or out of “his scope of employment.” 2. Scope of employment is the activities of an employee that are in futhermore of duties that are owed to an employer an where the employer is, could be, excising some control, directly or indirectly, over the activities of the employee (Law Dictionary 2010). The scope of employment including matter of personal convenience and comfort that do not conflict with specific instructions (Law Dictionary 2010). In the video Jake's actions are in scope of his employment. Jack, a licensed mechanic and works as a service manager at a car dealership. The car dealership he works for is currently offering free oil changes to lure in new customers. Jake also performed a full inspection of the cars with the oil change. Jake employer's promotion only advertise a free oil change but Jake's full inspection is in his scope of employment. Scope of employment refers to anything a person does in the ordinary course of doing his or her job (Scope of Employment 2008). Jake feel that since he is a certified profession it is his care of duty to perform a full inspection on all the car he services. In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable...
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...as if the obligations were fulfilled. 2) Tort is a wrongful act or omission for which damages can be obtained in a civil court by the person wronged. Wrongful act or omission which caused personal injury or property damage. The wrongful act or omission can be intentional or negligent. There is no agreement between the parties for an action in tort. 2. What are the 3 elements for a negligent action? 1) The defendant owes a duty of care to the plaintiff. Means-a person has a legal obligation to take care when he can foresee a loss occurring if he acts carelessly. The duty of care is owed to one’s neighbour (neighbour principle in Donohue --v- Stevenson case) – ie those person that are or should be in the contemplation of the defendant as likely to be affected by the defendant’s act or omissions. 2) The defendant was in breach of the duty of care. In determining whether the defendant has breached the duty of care, there are 2 stage processes, ie: a. The court has to establish the standard of care that an average reasonable person or a person professing special skills should have taken in the circumstances. This test is objective, ie it dose not take into account what the defendant might have considered to be reasonable in the situation. b. The Court then determines whether the defendant has met the standard established above. 3) The plaintiff suffered damages flowing from...
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...Torts Assignment PART 1 1) Does Autumn Bay High owe a duty of care to Persephone and Aphrodite? Consider the common law as well as any impact that the Civil Liability Act 2002 (NSW) may have on the common law. The main considerations that have to be taken into account when deciding whether Autumn Bay High owed a duty of care to Persephone and Aphrodite are the reasonable foreseeability of nervous shock and whether their duty of care was non-delegable. Under the Civil Liability Act 2002 (NSW) “the defendant owes a duty of care to the plaintiff if they ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognized psychiatric illness if reasonable care were not taken”. It has been established through Tame v New South Wales & Annetts v Australian Stations Pty Limited[1] that reasonable foreseeability of mental harm is a precondition of the existence of a duty of care. Taking the provisions of the Civil Liability Act 2002 (NSW) into account, the fact that the school is taking its students on a ski trip already establishes a general duty of care. It is reasonably foreseeable that such an activity poses the possibility of serious injuries if adequate supervision is not provided. In addition to this, it is not fanciful or far-fetched that witnessing a horrific physical injury to a fellow student can cause sudden shock and consequential mental harm to a person. While Aphrodite witnesses the actual accident, and sees...
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