Vicarious Liability Flashcards
What is vicarious liability?
Allows liability to be imposed by virtue of the relationship between the third party and actual wrongdoer; even though the third party may not be at fault in the normal sense. It primarily concerns the actions of employees and the corresponding liability imposed on their employers
What is the reasoning behind vicarious liability?
The reasoning behind the rules lies in the nature of the relationship itself, in particular the fact that the employer is in control of the employee and the employee is at all stages acting in the interests of and for the benefit of the employer.
This benefit derived by the employer is considered the trade off for imposing liability should negligence occur.
There is also a practical
consideration in holding an employer responsible for the actions of their employees and it is that where a person has been injured through the negligence of another, they deserve compensation for their loss.
To hold an employee liable for significant personal injuries would frustrate the situation because they are unlikely to be able to pay a significant amount in damages. To that end the employer has the financial backing (often through their insurance cover) to meet any award of damages in ways the employee cannot.
What is historically the dominant test for vicarious liability?
The control test
What are the facts of the case Walshe v Baileboro Co-op Agricultural & Dairy Society & Gargan?
the plaintiff was injured by
a horse and cart driven by an employee of the defendants. The employee in question was
employed to deliver goods but the horse and cart were his own. The court held that on the facts of the case the worker was an independent contractor and as such vicarious liability could not be imposed but in establishing sufficient control the court placed considerable emphasis on the fact that he was told what routes to take and was in that sense controlled by the defendants.
What are the facts of the case phelan v Coillte Teoranta ?
the plaintiff was injured as a result of the negligence of one of the defendant’s employees (Mr Carwood) and brought an negligence action against the
defendant employer, relying on the doctrine of vicarious liability.
The defendant argued that
Mr Carwood was an independent contractor, however evidence showed he worked full-time for the defendant repairing machinery, was told where to go and what to do and was paid an
hourly rate and mileage and expenses.
Although he used his own tools, dealt with his own
tax affairs and was not entitled to any holiday pay, the court held that the relationship between Mr Carwood and the defendant was one of master and servant and as such the defendant could be held vicariously liable for the negligence of its employee.
what are the facts of the case moynihan v moyniham?
the Supreme Court found a grandmother vicariously liable for the actions of her daughter when a teapot was left in reach of a child who caught it, scalding her-self. The court held that the defendant grandmother was liable for her daughter’s negligence
and the reasoning was explained by Walsh J as follows:
“This power of control was not in any way dependent upon the relationship of mother and
daughter but upon the relationship of the head of a household with a person to whom some of the duties of the head of the household had been delegated by that head.
what did the case of armes v Notthinghamshire Co highlight?
highlights that control remains relevant. Children were adopted by foster parents but local authority was liable. Whilst they were not in control of day to day, they retained parental powers on medical decision, visiting family, passports etc. They also had power of inspection and removal/approval . They created the risk etc. Thus they were akin to employees.
what are the two considerations the courts have to make for vicarious liability?
(i) identifying a relationship akin to employment
(iI) Scope of employment
how have the courts loosely defined the concept of scope of employment / scope of employment test
The courts have loosely defined the concept as when the employee is ‘doing what he is employed to do or.. anything reasonably incidental to his employment
what did the court consider in the case of Farry v Great Northern Railway Co
The court considered that an employer could not be held liable for negligent acts when the employer did not commit themselves to that act in the first place
explain the facts of the case Boyle v ferguson
Here he crashed on a Saturday night in the company car with two female friends. Vicarious liability - as he worked flexible hours and argued that he was selling them the car. This was in course of employment
explain the facts of smith v stages
the defendant sent two of his employees to a job some miles away and paid travel expenses on top of their normal wages. The employees left work early and while driving home were involved in an accident
The plaintiff sued their employer relying on the principle of vicarious liability and the court held that the defendant was responsible for his employees actions and they were on the defendant’s time, they were being paid travelling expenses and so they should be treated as ‘working’ for the purposes of deciding liability.
when will an employer not be vicariously liable for the actions of an employee?
an employer will not be vicariously liable for the actions of an employee where the employee’s conduct was completely unconnected with a different in kind to his employment.
what are the facts of the case Daniels v whetstone entertainment ltd.
The plaintiff was physically assaulted by a bouncer employed by the defendant and the evidence showed that after an incident inside the venue whereby the plaintiff was forcibly removed by the employee, the employee then left his security post to chase the plaintiff down the street where he again assaulted him. The court held that the initial assault in removing him from the premises was within the scope of employment but the second outside the premises had no connection to employment and was a frolic of his own
