Vicarious Evalaution Flashcards
Definition
-Means of imposing liability on someone other than the tortfeasor, employer can be sued for actions or omissions of employee.
General concept - is it fair on employers?
-Imposing liability on employer for acts of employee not fair as goes against fault based liability.
-employers may take all steps to train but still liable for their acts
-eg century insurance liable for negligent employee lighting up ciagarette near fuel
Fair
-employers responsibility to train so they should be responsible if they aren’t trained properly
BUT modern methods mean can’t always supervise
BUT employers do receive a benefit from their work, rose v plenty.
Explain the 3 requirements
-was tort committed
-tortfeasor must be employee or akin to employment
-employee acting in course of employment when tort committed
A01 for tests
-Control test to see how much control the employer exercises over another persons work
-integration: if the person is an integral part of the business
-economic reality: looks at all aspects of contract to decide if employee or IDC, eg looking at uniform, who pays taxes etc
-ready mix concrete, independent contractors. Paid for own lorries, did their own taxes.
A03 for multiple test
-employee may meet some criteria but not others, subjective
-hard to decide if are or aren’t employed
-eg in Barclays, GP had some elements of being employee as had to produce reports with logo on and uniform but also IDC as could work for others
-unfair on employer/employee as may or may not be held to be employee despite having elements of one or the other.
-employer liable for someone they think is IDC
-also lots of tests, control and integration incorporated into multiple, but dev of tests increased the scope for people to be considered employees
-but fair on employers as considers terms in contract, in depth
A01 for akin to employment relationships
-may be liable for those not employees, eg casual workers.
-cox v ministry of justice, prison and prisoner is akin to. Liable when prisoner injured catering staff when dropped sack on back
-2 questions: was the harm done by a person whose activities are an integral part of the business and benefit the business , was the risk of harm occurring caused by D assigning those activities.
A03: cox test
-unfair on employers non business organisations like charities who don’t make profit would would be vicariously liable as relationship is akin to employer employee.
-may run them into the ground, increases scope of who is liable, floodgates ?
However is fair as if they are sufficiently close relationship to employer and employee then should be liable as it is not fair for the claimant to not be able to claim money just because not strictly employer and employee.
A01: course of employment - salmond
-salmond for negligence
Salmond: Joel v Morrison said must be engaged in masters business and not on frolic of own. 2 scenarios where they would be liable (wrongful authorised acts, authorised acts in unauthorised manner)
-Wrongful authorised: Poland v parr, sugar wagon
-auth act in unauth way: limpus v London: racing the bus. Bear v London: conductor drove the bus - frolic of own
A03: for salmond
-inconsistent
-rose v plenty and twine beans express, employees giving unauthorised lifts, VL in rose but not twine. Inconsistency hard for employers to protect themselves against liability
-but outcomes of the cases not consistent as rose the employer was benefitting so they should bear the consequences
A01: close connection
-battery: crime/intentional tort at work
-if there’s a close connection between the tort and their job
-lister v Halsey hall where warden in children’s school sexually assaulted. Close connection - job allowed him to do it.
-Matt is v pollock: bouncer and injuring claimant, part of job, encouraged with force.
-qu’s reformulated in Mohamed: what is the nature of the job entrusted to the tortfeasor in the broadest terms and was there sufficient close connection between position and their conduct
-N v chief constable - police officer raping girl
A03: close connection
-Unfair on employers, inconsistent. Diff judicial opinions about whether close connection
-easy to decipher in mattis but less obvious in Mohamed.
-clarified in Mohamed to some extent but questions still left to the judges.
BUT
-fair as encourages responsibility of employers not to employ those who may commit crimes, more beneficial to C as more likely to receive compensation
Conclusion
-developed by SC but focuses on policy not principle
-focuses on the claimant getting compensation rather than if right to hold someone else liable
-judge made law, uncertainty in decisions eg Barclays.
-if wrong decisions made then hard to change
-maybe an act needed to clarify
-but judicial fair as decided on case by case basis
-employers aren’t always liable, only if in the course of employment and closely connected.
