prove of negligence

May 28, 2023


The issue presented in the scenario is negligence, prove of negligence and whether the employer is liable for harm caused by his employees to a third party. This is also related to whether the elements of vicarious liability apply to the scenario.


Third party liability occurs when another person, separate from the employment or the workplace, is injured by an employee while the employee is carrying out his work obligations. Vicarious liability arises when an employer is partly liable for the harm caused by an employee to a third party. The employer only assumes part of the liability as does the employee. Vicarious liability either occurs in the workplace where an employer can be held liable for unlawful actions of his employee or any other place during the time an employee is carrying out work related obligations.


An employer has a duty to ensure that the work allocated to the employees can be done without causing any harm to a third party. If the employee while carrying out their work obligations causes harm to a third party, the employer has vicarious liability to partly compensate the injured party for the harm caused. An employer is however not liable for actions of a contractor. This was explained by the Supreme Court in United States v. Silk where the Court stated that the difference between an employee and a contractor is that unlike a contractor, an employee can be sued by an employer, an employee has his tools of work provided by the employer, an employee provides services that are normally connected with the employer’s line of business and an employee often works for longer periods and on more permanent terms.

Furthermore, one must determine whether the harmful act occurred within the scope of employment. To determine whether the employee was within the scope of employment when they committed the harmful act, one must prove that the employee was engaged in a work related action, whether the action was incidental and hence caution should have been taken and the degree of discretion the employer provides the employees for the work related duties. In the scenario provided, the employer advised the employees to commute over very long distances as opposed to taking lodgings near the work place. This was despite being aware of the long working hours that the employee were required to work.

In Clark Equipment Co. v. Wheat the Court stated that an employer shall be held responsible if they provided the employee with the discretion to perform work duties, foreseeability of an employee’s detour while performing work duties, when and how the action occurred. In the scenario, the president of MIC advised the employees to commute to work despite the long hours they worked. This was ignorant of the effect of long working hours and how exhaustion would have on employees especially while driving to and from work.


The employer shall be held liable for the employee’s negligence that led to the accident causing the death of the complainant’s husband. This is because under third party liability and based on the principle of vicarious liability, an employer is partly liable for actions of his employee if such actions were as a result of the employers contributory negligence. However, the employees shall also be held liable for their negligent acts.


United States v. Silk 331 U.S 704 (1947)

Clark Equipment Co. v. Wheat 92 Cal. App 3d

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