Tort Law - Vicarious Liability

Question 1

what is vicarious liability?

Answer 1

where an employer is liable for the actions of employees

Question 2

what is the three part ‘Salmond Test’?

Answer 2

1. defendant commits a tort
2. tortfeasor was an employee or in a position akin to employment
3. the tort was committed in the course of employment

Question 3

examples of the tort committed:

Answer 3

negligence, defamation, torts to land etc

Question 4

what are the 4 tests that can be used to establish employment?

Answer 4

1. control test
2. integration test
3. economic reality test
4. relationship ‘akin’ to employment test

Question 5

control test:

Answer 5

does the employer have sufficient control over the employee
e.g organises shifts, pays wages etc

Question 6

integration test:

Answer 6

is the employees work fully integrated into the business or not
e.g a teacher is vital to a school or a doctor is vital to a hospital

Question 7

economic reality test:

Answer 7

shows that ‘one’ test doesn’t work and looks at a range of factors such as ownership of tools, method of payment and independence in the role.

Question 8

relationship ‘akin to employment’ test:

Answer 8

not traditionally an employee but so something similar to employment. factors considered:
means, benefit, business activity, risk, control

Question 9

what case example can be used for ‘relationship ‘akin to employment’ test’?

Answer 9

Cox - prisoner worked in prison kitchen and dropped a large bag of rice on someone. ‘similar’ to employment so prison liable.

Question 10

was the tort in the course of employment? can be split into 2 areas:

Answer 10

unintentional torts and intentional torts

Question 11

unintentional torts can be split into two areas with different liabilities:

Answer 11

actions in the course of employment = liable
actions outside the course of employment = not liable

Question 12

what is an authorised act?

Answer 12

undertaking their actual role as an employee

Question 13

what case example can be used for authorised act?

Answer 13

Poland - D driving sugar wagon and saw C trying to steal sugar so D hit C to protect the stock. Employer liable.

Question 14

authorised acts can be done in a negligent way.

what case example can be used for this?

Answer 14

Century Insurance - driver of a petrol lorry threw a lit cigarette out the window and caused an explosion. employer liable as employee was doing his job.

Question 15

what is an action outside the scope of employment?

Answer 15

undertaking a different role

Question 16

what case example can be used for outside the scope of employment?

Answer 16

Beard - Bus conductor supposed to take bus fayres but drove the bus and caused an accident. Employer not liable.

Question 17

what is frolicking on their own?

Answer 17

something outside the area and time of work

Question 18

what case example can be used for ‘frolic on their own’?

Answer 18

Hilton - group of employees took an unauthorised break and killed a man in a car accident on the way home. employer not liable.

Question 19

if the tort is intentional the courts will look at:

Answer 19

1. the field of activities given by the employer
2. whether it was ‘closely connected’ to the employers’ business activity

Question 20

what case examples can be used for ‘criminal acts that are closely connected to employment’?

Answer 20

Lister - warden of a school for kids with emotional difficulties was convicted of sexually assaulting children. school was liable as his actions were considered connected to his role as a staff member.

Mohamud v Morrisons - C went to a Morrisons petrol station and attendee used racist language and assaulted him. Morrisons liable as customer service is closely connected to role.

Question 21

what case example can be used for ‘criminal acts that are not closely connected to employment’?

Answer 21

Morrisons v Various Claimants - D downloaded payroll data of 100,000 employees and uploaded onto a file sharing website. he sent links to Uk newspaper in revenge against employer. Morrisons not liable as not closely connected.

Question 22

defences to a vicarious liability claim:

Answer 22

consent
contributory negligence

Question 23

what are some positive evaluation points of VL?

Answer 23

✅multiple tests caters to modern ways of working
✅encourages better training
✅can get more damages if you claim against a large company
✅ case law = flexible
✅ logical case outcomes e.g Lister

Question 24

negative evaluation points on VL?

Answer 24

❌liability lacks consistency
❌is Poland suggesting employees can be aggressive?
❌dual liability is unfair
❌does Lister promote questionable morals?
❌ no PS
❌ absurd outcomes - shouldn’t Barclays be liable?