24.1 Vicarious Liability

Question 1

Definition of Vicarious Liability

Answer 1

Liability for the tort of others
(employees and employers)

Question 2

What is the old approach to establishing vicarious liability?

Answer 2

Salmond test

Question 3

What 2 questions do the Salmond test ask?

Answer 3

1. Was the employee employed by the D?
2. Did the tort occur during the course of employment?

Question 4

What were the 3 OLD tests for whether someone was employed under vicarious liability?

Answer 4

Salmond test part 1:
1. Was employee employed by D?
- Control test
- Integration test
- Economic reality test

Question 5

What is the recent approach 2-part test to vicarious liability?

Answer 5

1. Was the relationship between employee and employer ‘akin to employment’?
2. Was the tort ‘closely connected’ to employment?

Question 6

Akin to Employment (vicarious liability)
And the 5 criteria

Answer 6

(Lister v Hesley Hall)
5 criteria to make it fair to deem a relationship akin to employment.
1. Employer likely to be able to compensate
2. Employee acting on behalf of employer
3. Employee activity=Business activity
4.Employer created risk of tort by employing the employee
5. Employee controlled by D

5 criteria come from (Catholic Child Welfare v Various)

Question 7

Second part to recent approach to Vicarious Liability:
Actions ‘closely connected’

Answer 7

(Mahomud v Morrisons)
If what an employee is doing is ‘closely connected’ to the nature of their job there will be vicarious liability.

Question 8

Do independent contractors cause vicarious liability?

Answer 8

NO
But must look at underlying details of relationship in order to determine this
Lady Hale in (Barclays Bank v Various)