Vicarious Liability Flashcards
When does vicarious liability arise?
When one party is responsible for the torts of another
What are the two questions used in order to prove vicarious liability?
- Was the person who committed the tort employed by the defendant?
- Was the tort committed in the course of that employment?
Who are employers liable for?
Liable for employees
Not liable for independent contractors
3 tests for employment
- Control test
- Integration test
- Economic reality test
Control test - employee
If the employer sets out how the work is to be done and when, then it is likely an employee
Control test - contractor
If it is up to the person carrying out the work to determine how and when it should be done, it is likely a contractor
Integration test - employee
A person employed to work on the till in a shop would usually be an employee
Integration test - contractor
If the till was broken, the person called into fix it would probably be a contractor
Integration test case
Uber v Aslam
Economic reality test - employee
A contract of service is likely an employee
Economic reality test - contractor
A contract for services is likely an independent contractor
Economic reality test case
Ready mixed concrete v minister of pensions
Things that indicate contractor
- ability to hire your own employees
- requirement to bring your own tools
- pay your own tax and national insurance
What happens if an employee on loan commits a tort?
They usually remain the responsibility of the first employer
Akin to employment case
Lister v Hesley Hall
Akin to employment 5 part test
part 1
- Employer is more likely to compensate the victim than the employee, as they can be expected to have insurance
Akin to employment 5 part test
part 2
- The tort will have been committed as a result of activity by the employee on behalf of the employer
Akin to employment 5 part test
part 3
- The employee’s activity is likely to be part of the business activity of the employer
Akin to employment 5 part test
part 4
- The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee
Akin to employment 5 part test
part 5
- The employee will have been under the control of the employer
Akin to employment case (2)
Barclays Bank v Various Claimants
Acts are done in the course of employment if they are:
Salmond test
A) wrongful acts actually authorised by the employer
B) wrongful and unauthorised ways of doing acts authorised by the employer
Employer will be vicariously liable for the employee’s tort when (part 1)
Employee does an authorised act in a careless way
Employer will be vicariously liable for the employee’s tort when (part 2)
When they have allowed the employee to do an unlawful act
Employer will be vicariously liable for the employee’s tort when (part 3)
When the employee carries out an authorised act in an unauthorised way
Employer will be vicariously liable for the employee’s tort when (part 4)
When the act has been expressly forbidden but it is for the benefit of the employer
Authorised act in a careless way case
Century insurance v nirtb
Employee carries out an authorised act in an unauthorised way case
Limpus v General London Omnibus
Act has been expressly forbidden but it is for the benefit of the employer case
Rose v Plenty
Frolic of their own case
Hilton v Thomas Burton
What is employers indemnity?
Employer found vicariously liable may, in turn, sue their employee to recover some or all damages
Employer’s indemnity case
Lister v Romford ice and cold storage
Liability for independent contractors case
Alcock v Wraith
Critical evaluation points
- too many tests
- a frolic of their own
- insurance
- higher standards of care
- intentional torts and crimes
Case for too many tests
Ready mixed concrete v minister of pensions
Mersey docks v coggins
A frolic of their own test
Rose v plenty
Insurance case
Hilton v Thomas burton
Higher standards of care case
Century insurance v nirtb
Intentional torts and crimes case
Lister v hesley hall
Insurance basics
Employer is better to compensate than employee
Higher standards of care basics
Could encourage higher standards of care for the employer
Intentional torts and crimes
Rare for employer to be held responsible for employee crimes but lister v hesley Hall was so serious…
Too many tests basics
Too many tests could make it unfair but single test is restrictive
Frolic of their own basics
Employer liable for employees doing their own thing in course of employment
