Tort - 5 - Vicarious Liability

Question 1

Requirements for vicarious liability as an employer

Answer 1

• The worker must be an employee (or a relationship similar)
  -The employee must have committed a tort
  -The employee’s tort must have been committed in the course of his employment

Question 2

NOTE

Answer 2

• Employees can be held liable
• Independent contractors cannot (employed under a contract of service). Provides services for several people. Self-employed.

Question 3

Test?

Answer 3

Various Claimants v Catholic Welfare Society and Others
(i) The employer is more likely to have the means to compensate the victim than the
employee and can be expected to have insured against that liability;
(ii) The tort will have been committed as a result of activity being taken by the employee on
behalf of the employer;
(iii) The employee’s activity is likely to be part of the business activity of the employer;
(iv) The employer, by employing the employee to carry on the activity will have created the
risk of the tort being committed by the employee;
(v) The employee will, to a greater or lesser degree, have been under the control of the
employer.

Question 4

‘In the course of employment’

Answer 4

• Wrongful act which is authorised
  -Wrongful and unauthorised modes of carrying out an authorised act.

Question 5

Distinction?

Answer 5

Poland v Parr (1926) - pushes may attempting to steal (in course of employment)

Warren v Henleys Ltd (1948) - Insulted by customer and punched him in the face (not in course of employment).

Question 6

Act expressly prohibited by the employer

Answer 6

Rose v Plenty (1976) - Prohibited act done to further business (vicariously liable).

Question 7

Intentional torts

Answer 7

Lloyd v Grace Smith & Co (1912) - conveyancing clerk used his position to fraudulently transfer property. Fell within course of employment (transferring property).

If for employee’s own purposes has to be - sufficient close connection between work and acts in question. (Lister Principle).
- What function or field of activities has been entrusted by the employer to the employee.
- Is there sufficient connection between the position and the wrongful conduct to make it fair and just for the employer to be held liable.

Question 8

Frolic cases

Answer 8

Outside course of employment ‘on a frolic of their own’

Most common when driving on routes and deviating.

A question of degree -
Geographical divergence
Departure from the task set

Question 9

Employer’s indemnity

Answer 9

Lister v Romford Ice & Cold Storage Co Ltd (1957) -
Employer has a right at common law to claim an indemnity from the employee.

Employers entered into an agreement not to pursue such claims for an indemnity unless there is evidence of collusion or wilful misconduct on the part of an employee.