Vicarious liability Flashcards
definition of vicarious liability
imposing liability for a tort onto a 3rd party who did not commit it, where that 3rd party has legal responsibility for the unlawful actions of another.
mostly in the workplace
tests for vicarious liability
- was the tortfeasor (person committing the tort) an employee.
- did the employee commit the tort “during the course of his/her employment”
1st test
what do you need to test
employment status
- if he is an employee - employer vicariously liable
- if he is an independent contractor - not an employee and should have his own insurance
1st test
3 tests for was the tortfeasor an employee
- control test
- integration or organisation test
- economic reality or multiple test
test 1.a
2 cases and definition
YEWENS V NOAKES
whether employer had the right to control what the employee did and way it was done
MERSEY DOCKS AND HARBOUR BOARD V COGGINS AND GRIFFITHS LTD
when there is a hiring contract
- if worker and equipment hired out - presumption that original employer is liable
- if only worker hired out, presumption that hirer is liable
test 1.b
case and definition
STEVENSON JORDAN AND HARRISON LTD V MACDONALD AND EVANS
worker will be employee if his/her work is fully integrated into the business - if his work is only an accessory to the business, not an employee
test 1.c
case and definition
**READY MIXED CONCRETE (SOUTH EAST) LTD V MINISTER OR PENSIONS AND NATIONAL INSURANCE
worker will be employee if:
- agrees to provide work/skill in return for wage
- expressly or implied accepts work will be subject to control of employer
- employment relationship existed
test 1.c
relevant factors for employment relationship
- ownership of tools/plants/equipment
employee is less likely to own - method of payment
employee usually receives regular payments (salary) - tax, national insurance and pension contributions deducted from wage
- any job description
describes worker as employee
-independence in doing job
self employed hase more independence and flexibility in being able to take work from difference sources and how and when to do it
all factors are considered and weighed up
2nd test
definition
for employment to be liable, employee must commit the tort “in the course of employment”
2nd test
2 considerations
- employee acting against orders while still doing work; or
- employee acting on a “frolic” of his/her own - doing something outside of the work
test 2.a
definition
if employee acting against orders but still doing the work, even if it is in an unauthorised way, he is “acting in the course of employment”
test 2.a
2 cases and definition
LIMPUS V LONDON GENERAL
employer liable to c if employee doing what he was employed to do even if against orders
ROSE V PLENTY
employer liable if benefitting from the work done
test 2.b
definition
weigh up with acting against orders
if employees disobedience means he is not carrying out the job he is employed to do - not “acting in the course of employment” - doing something outside of work
test 2.b
cases
HILTON V THOMAS BURTON (RHODES) LTD
employers not liable if employee acting on frolic of their own - not acting in course of employment
TWINE V BEANS EXPRESS
employer not liable if employee doing unauthorised act and employer gaining no benefit from it
BEARD V LONDON GENERAL OMNIBUS COMPANY
employer not liable as conductor acting outside course of employment
step 3.a and case
employer can be liable for employee committing a negligent act
CENTURY INSURANCE CO. LTD V Northern Ireland ROAD TRANSPORT BOARD
if employee does his job badly, employer can be liable for his actions if they cause injury/loss to another
