Occupational Health and Safety: Vicarious Liability of Employers

Occupational Health and Safety: Vicarious Liability of Employers 1
Occupational Health and Safety: Vicarious Liability of Employers
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Occupational Health and Safety: Vicarious Liability of Employers 2
Occupational Health and Safety
Introduction
Organisations’ are often faced with the dilemma of either employing workers to carry
out the organizations' activities or engaging independent contractors to do the same job
(Moran, 2009, p 105). Both strategies present benefits and disadvantages to organizational
owners and whichever is chosen it presents broad and far-reaching legal implications
especially in the event of a tortious liability. To find out if an individual is an employee or an
independent contractor to an organization, an organization is obligated to weigh its degree of
control with that person (Franklin, 2008, p.435).
This establishment is critical in determining who is liable in the event of a tortious
liability or even in a criminal proceeding when either of these parties is involved in any of
these wrongdoings in the course of duty. This paper is concerned with extrapolating whether
a vicarious liability exists in the case of Yum Yum Pizzas and Vinod when Vinod causes an
accident that leads to the breaking of his leg while in the course of his duty and by extension
injuring Penelope a socialite. Moreover, the paper will also deduce whether both or either
Vinod or Penelope deserves compensation and if so from whom. In doing so, the relevant
legal assessment will be conducted to justify the judgment.
The case of Vinod
Like has been established, the degree of control an employer exacts on either
employees or independent contractors is what determines whether the employer is liable or
not to liabilities committed by either of them. By and large, an employee is any individual
who under the direction of his/her employer performs the work given to him or her under
either express, implied or literal means and the employer retains complete control to such
effect for a longer period of time. Under this period, the employee has definite job
descriptions, working hours and specific work outcomes.

Occupational Health and Safety: Vicarious Liability of Employers 3
On the other hand, an independent contractor is an individual who upon being
contracted to do a certain task performs such a task under his/her own control. As such the
relationship between the employer an independent contractor dies the moment the work under
the contract comes to completion and the contractor has been paid off his/her contract price.
Employers are entitled to observe all the legal obligations governing an employer-employee
relationship (Giliker, 2011, pp.31-56). Independent contractors are only paid for the services
under their contract project with little or no labour laws governing their relationship.
Generally, employers are supposed to bear the consequences of the decisions and
actions of their employees because employees act on behalf of their employers for purposes
of benefiting or profiting from them. Any tortious or criminal activities undertaken by
employees are directly attributable to their employers except for very limited instances
(Giliker, 2010). This kind of liability is what is referred to as vicarious liability. Under
vicarious liability, employers are entitled to advance remedy in form of compensation to all
the aggrieved parties.
Employers cannot be extended the tortious or criminal liability of independent
contractors since the later act on their own capacity. This could be the case when the
employers decide to retain a lot of control in the manner in which the activities under the
contract are carried out (Pagura, 2011, p.36). Independent contractors are supposed to
determine when to carry out the activities under the contract as well as how exactly to do
those tasks. To this end, the amount of control on independent contractors by employers is
quite minimal. Moreover, Morgan, (2012, pp.615-650.) contend that independent contractors
are in most cases contracted to carry out activities that are not of direct principle aspects of
the business of the employer.
With regard to the tools and equipment of service, employees are by and large
provided the same by their employers and are given adequate knowhow on how to use them