Employer's Liability (Vicarious Liability) Flashcards
Vicarious Liability:
Definition
Vicarious liability is a principle of law, not a tort.
If C can show that a tort has been committed by an employee in the course of employment then a claimant can sue employer.
Vicarious Liability:
Defining ‘employee’
An employee is:
- employed under a contract of service
- providing service for just one person
- working for employer’s business interests
Vicarious Liability:
Defining ‘independent contractor’
An independent contractor is:
- employed under a contract for service
- providing services for several people
- working for their own business interests
Vicarious Liability:
Ready Mixed Concrete
There is a contract OF service (employee) where worker:
- provides work for remuneration;
- agrees that he is subject to sufficient control of another in the performance of this service; and
- other provisions of the contract are consistent with a contract of service
Vicarious Liability:
Who does tort need to be committed by?
For vicarious liability to be available, the tort needs to have been committed by an employee, not an independent contractor
Vicarious Liability:
Course of employment
For vicarious liability to be available, the tort needs to have happened whilst the employee was in the course of employment
Vicarious Liability:
Authority for course of employment
Salmond’s classic definition, given common law authority in Lister v Hesley Hall
Vicarious Liability
Employers will be liable for
Wrongful acts it has authorised; and
Wrongful unauthorised modes of carrying out authorised acts
Vicarious Liability:
Poland v Parr
Employers will be liable for wrongful acts it has authorised
Vicarious Liability:
Century Insurance v NI Road Transport Board
Employers will be liable for wrongful/unauthorised modes of carrying out authorised acts
Vicarious Liability:
Warren v Henleys
Employee punches a customer in the face after an insult.
Not deemed to be in course of employment as was deemed a personal act
Vicarious Liability:
Intentional torts committed purely for employee’s benefit
Salmond suggests this would not be in course of employment, but employer can still be vicariously liable provided that:
- Tort stemmed from an act authorised by employer
- Tort was closely connected to the work employee employed to do
Vicarious Liability:
Lloyd v Grace
Employer can still be vicariously liable for intentional tort committed purely for employee’s benefit if the tort stemmed from an act authorised by the employer
Vicarious Liability:
Lister v Helsey Hall
Employer can still be vicariously liable for intentional tort committed purely for employee’s benefit if the tort was closely connected to the work employee was employed to do
Vicarious Liability:
Mattis v Pollock
The rule in Lister v Hesley Hall can be interpreted widely
Vicarious Liability:
Rose v Plenty
Where an act is done to further employer’s business, it may be deemed as done in the course of employment
Vicarious Liability:
Twine v Bean’s Express
Where act is something employee had no right to do, and act NOT done to further employer’s business, no vicarious liability
Vicarious Liability:
Joel v Morison
Is an employee on a ‘frolic of his own’?
Vicarious Liability:
Hilton v Thomas Burthon
Factors to consider for ‘frolic of his own’:
- Extent of deviation; and
- Purpose of deviation
Vicarious Liability:
Harvey v R G O’Dell
For ‘frolic’, consider whether deviation was reasonably incident to work
Vicarious Liability:
Lister v Romford Ice
Employers have the right at common law to claim an indemnity (full loss) from the employee who committed the tort.
Gentleman’s agreement not to do so unless misconduct by employee was wilful.
