Vicarious Liability

Hello,

Assume in a case where an employee is suing even though the reason they had an accident was where they did something they were specifically and documented not to do. They have signed that they had taken the training showing not to do this.

The insurance company are saying the company is liable because the person that had the accident was asked to do it by another employee.

The other employee was not their supervisor, but the same level as them. That person also had the same training, and has signed off on it.

Assume we've been told by the insurance company that they will not defend it as they believe that a judge would find us 'vicariously liable'.

Assume we don't doubt an accident happened (there was a genuine injury).

If PIAB adjudicate it's likely to be in the 10s of thousands of an award. Assume this is still below our level of excess. So, the insurance company is likely not to be out of pocket here, in this scenario.

Does the Vicarious Liability sound plausible in this case?

Thanks

Lenar3556

[Deleted User] wrote: »

Hello,

Assume in a case where an employee is suing even though the reason they had an accident was where they did something they were specifically and documented not to do. They have signed that they had taken the training showing not to do this.

The insurance company are saying the company is liable because the person that had the accident was asked to do it by another employee.

The other employee was not their supervisor, but the same level as them. That person also had the same training, and has signed off on it.

Assume we've been told by the insurance company that they will not defend it as they believe that a judge would find us 'vicariously liable'.

Assume we don't doubt an accident happened (there was a genuine injury).

If PIAB adjudicate it's likely to be in the 10s of thousands of an award. Assume this is still below our level of excess. So, the insurance company is likely not to be out of pocket here, in this scenario.

Does the Vicarious Liability sound plausible in this case?

Thanks

On the facts you have presented, I would say no.

But questions would arise;
Why did this other employee ask them to undertake this dangerous and prohibited act? Could it be suggested that there was a culture of poor safety practices?

While forbidden on paper was the employer aware that it was going on and turning a blind eye? Did they care to check what was happening in practice? Aside from the training manual - was the risk also reduced to the greatest extent reasonably possible?

On the whole, if a reasonable person was to review the full facts, would they believe the employers duty of care to the employee was met?

Can you demonstrate with certainty that there was no perception of seniority in the case of the person giving the instruction? The lines of authority can sometimes become blurred in an organisation.

Thanks for that input.

It can be assumed they did it just to speed up the process. And while it couldn't be stated with certainty it didn't happen previously, the supervisors have a history of intervening and correcting staff if they veered off any practice.

I think we can so no, no blind eye was turned. The act that can be assumed to happen only takes a few seconds to occur. Instead of getting a ladder they took a short cut.

There would be zero possibility of the person requesting the task was more senior, they would be junior if anything.

Can I ask if, given the above, why it would fail vicarious liability? Assume the insurance company are saying that Vicarious Liability is based on one employee (understanding they was no seniority involved) telling another to do something that led to an accident.

Assume, if it matters, the requesting employee was disciplined and that the employee that had the accident wasn't.