Tort Law - Vicarious Liability Flashcards
what is vicarious liability?
where an employer is liable for the actions of employees
what is the three part ‘Salmond Test’?
- defendant commits a tort
- tortfeasor was an employee or in a position akin to employment
- the tort was committed in the course of employment
examples of the tort committed:
negligence, defamation, torts to land etc
what are the 4 tests that can be used to establish employment?
- control test
- integration test
- economic reality test
- relationship ‘akin’ to employment test
control test:
does the employer have sufficient control over the employee
e.g organises shifts, pays wages etc
integration test:
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
economic reality test:
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.
relationship ‘akin to employment’ test:
not traditionally an employee but so something similar to employment. factors considered:
means, benefit, business activity, risk, control
what case example can be used for ‘relationship ‘akin to employment’ test’?
Cox - prisoner worked in prison kitchen and dropped a large bag of rice on someone. ‘similar’ to employment so prison liable.
was the tort in the course of employment? can be split into 2 areas:
unintentional torts and intentional torts
unintentional torts can be split into two areas with different liabilities:
actions in the course of employment = liable
actions outside the course of employment = not liable
what is an authorised act?
undertaking their actual role as an employee
what case example can be used for authorised act?
Poland - D driving sugar wagon and saw C trying to steal sugar so D hit C to protect the stock. Employer liable.
authorised acts can be done in a negligent way.
what case example can be used for this?
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.
what is an action outside the scope of employment?
undertaking a different role
what case example can be used for outside the scope of employment?
Beard - Bus conductor supposed to take bus fayres but drove the bus and caused an accident. Employer not liable.
what is frolicking on their own?
something outside the area and time of work
what case example can be used for ‘frolic on their own’?
Hilton - group of employees took an unauthorised break and killed a man in a car accident on the way home. employer not liable.
if the tort is intentional the courts will look at:
- the field of activities given by the employer
- whether it was ‘closely connected’ to the employers’ business activity
what case examples can be used for ‘criminal acts that are closely connected to employment’?
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.
what case example can be used for ‘criminal acts that are not closely connected to employment’?
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.
defences to a vicarious liability claim:
consent
contributory negligence
what are some positive evaluation points of VL?
✅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
negative evaluation points on VL?
❌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?
