a. Can an employer be held liable to an employee for injuries caused by another employee?
When an employee is injured due to the actions or omissions of a colleague, the employer may be held responsible through two primary legal pathways: vicarious liability and primary (personal) liability for breach of a non-delegable duty.
(i) Vicarious Liability
Vicarious liability is a form of strict liability where an employer is held responsible for the “casual acts of negligence” or torts committed by an employee, provided those acts occurred during the course of employment.
For liability to attach, the colleague’s conduct must be so closely connected with acts authorized by the employer that they may rightly be regarded as modes, albeit improper ones, of performing them. For instance, an employer might be liable for a prank or horseplay if it is deemed sufficiently connected to the workplace environment or authorized tasks.
(ii) Primary duty to provide safe co-workers
Beyond being vicariously responsible for specific acts, an employer owes a personal, non-delegable duty to each employee to take reasonable care to provide a competent workforce. This means the employer must not only take care themselves but must see that care is taken by those they hire.
An employer may be personally liable if they negligently select incompetent staff or fail to provide adequate supervision and instruction. This is particularly critical for younger or less experienced employees who require more guidance to avoid hazards.
While an employer is generally not liable for an isolated, unforeseeable practical joke by an employee, they become liable if they continue to employ someone known to have a habit of “skylarking” or dangerous horseplay that eventually causes injury.
The duty to provide safe co-workers extends to protecting employees from bullying, victimization, or harassment. If management knows, or ought to know, about a campaign of bullying and fails to take disciplinary action or intervene, the employer may be found in breach of their personal duty of care.
