Vicarious Liability

Question 1

What is vicarious liability?

Answer 1

A tort which makes one person liable for the wrongful conduct committed by another

Question 2

What is the most common relationship for imposing vicarious liability?

Answer 2

Employer-employee

Question 3

Who is an employer not responsible for?

Answer 3

Independent contractors

Question 4

From which case does the economic reality or multiple test originate, and what is it used to determine

Answer 4

Ready Mixed Concrete v MPNI, used to determine whether a worker is an employee or an independent contractor.

Question 5

What are the three things which must be considered in the multiple test?

Answer 5

Control, personal performance, mutuality of obligation

Question 6

What does personal performance mean, and which case can be used to illustrate this?

Answer 6

Whether the worker has the ability to delegate the work, or must do it themselves. Echo & Express Publication v Tanton - a driver was not an employee as he could delegate

Question 7

What does mutuality of obligation mean?

Answer 7

The employer is obligated to provide work and the worker is obligated to be available for it.

Question 8

In which case did the tour guide’s ability to refuse work mean there was no mutuality of obligation?

Answer 8

Carmichael v National Power

Question 9

Name two other factors which may be considered when assessing whether a worker is an employee.

Answer 9

Payment of wages, tax and NI, whether they have been provided tools/transport/uniform, self-description

Question 10

In which case was self-description as an independent contractor irrelevant as the employer controlled so much of their work?

Answer 10

Ferguson v John Dawson Ltd.

Question 11

What is the first test which may be applied where it is not obvious that the tortfeasor is an employee?

Answer 11

Whether there is a sufficiently close relationship to amount to a relationship akin to employment (JGE)

Question 12

Cox v Ministry of Justice: ‘is the t_________ carrying on activities as an i_____ part of the business activities carried on by D and for its b_______’?

Answer 12

Tortfeasor, integral, business

Question 13

An e_____ will only be liable for wrongful conduct committed ‘d______ the c____ of e__________’

Answer 13

Employer, during the course of employment

Question 14

What is the first instance where an employer will be liable?

Answer 14

For a wrongful act authorised by the employer (very rare)

Question 15

What is the second instance where an employer will be liable?

Answer 15

For an authorised act carried out in an unauthorised manner

Question 16

What are the three meanings of ‘unauthorised manner’, and what is a case to support each?

Answer 16

Overzealously (Vasey v Surrey Free Inns)
Negligently (Century Insurance v NI Road Transport)
Contrary to express instruction (Limpus v London General Omnibus)

Question 17

What is the third instance where an employer may be liable?

Answer 17

For an unauthorised act carried out in an unauthorised manner

Question 18

The ‘close connection’ test comes from which case, and when is it used?

Answer 18

Lister v Hesley Hall - for unauthorised acts carried out in an unauthorised manner

Question 19

What is the ‘close connection’ test?

Answer 19

Is there a sufficiently close connection between the employee’s wrongful conduct and his employment?

Question 20

Why was a ‘close connection’ established in Lister v Hesley Hall?

Answer 20

Because the abuse happened during times where D should have been performing his duties of care and on the premises

Question 21

What happens if the employer is found to be vicariously liable?

Answer 21

Both the employer and employee become joint tortfeasors, meaning the employer will be sued in addition to, not instead of, the employee