4. Vicarious Liability

Question 1

what is vicarious liability

Answer 1

employer is liable for a a tort committed by an employee

strict liability- no men’s rea (Callow v Tillstone)

Question 2

justification for vicarious liability

Answer 2

• protecting C (more likely to have resources/insurance to meet claims)
• protecting employee (unscrupulous employer can’t escape liability by force an employee to take risks)
• improving safety standards(encourage employers to take responsibility)

Question 3

criteria for VL

Answer 3

(1) wrongdoer commits tort
(2) employee status
(3) during the course of employment

Question 4

explain (1) wrongdoer commits tort

Answer 4

(1) duty of care
(2) breach
(3) causes damage

Question 5

explain (2) employee status

Answer 5

(a) employee - contract of service
independent contractor- contract for services

(1) control test (Dragonfly Consultancy) EM told what to do and how, IC told what

(2) integration test (Cox v MoJ) EM closely involved with the main business, integral to the business

(3) common mission test (Child Welfare Society) same goal/purpose

(4) economic reality multiple test (Ready Mix Concrete v MoP)
(a) wage/remuneration
(b) control
(c) provisions of contract are consistent with being a contract of service
- pays income tax/NI as employee

(b) relationship ‘akin to employment’ Child Welfare Society
- foster parents/social services
- associate dentist
- members of religious order
- prisoner
Cox v MoJ

Question 6

explain (3) during the course of employment

Answer 6

liable for torts committed “in the course of or scope of employment”

Salmond test: CoE =
(1) wrongful act authorised by employer
- can be implied permission, even if a criminal offence (Poland v Parr)
(2) authorised act carried out in an unauthorised way
- even if expressly prohibited (Limpus)
- even if employee doing work negligently (Century Insurance)
- even if told not to do activity (Rose v Plenty)

Close connection test:
- Lister: employees acts so closely connected w their employment that it was fair and just to hold employer liable
- Mohamund v Morrisons
(1) in the field of activities (nature of job)
(2) sufficient connection between their employed position and wrongful conduct to make it fair and just

NOT in course of employment when:
- employee was “on a frolic on his own” (Morris v CW Martin) (Hilton v Thomas Burton)
- when travelling to work UNLESS expenses paid (Smith v Stages)

Question 7

Liability for crimes of employees

Answer 7

generally an employer is not liable for crimes committed by an employee that are also torts

BUT, Poland v Parr liable for criminal offence when it was impliedly authorised

where the criminal act is an inherent risk that the employer should guard against there may be liability Lister v Hesley Hall (when employers are accused of being responsible for abuses carried out by their employees)