Vicarious Liability Flashcards
Vicarious liability arises where
an employer is liable for the torts, and sometimes crimes, of their employees, as first defined in Salmond in 1907, and recently developed from Lister v Hesley Hall to Barclays v Various Claimants
Here C is the
claimant who has suffered harm and D is the employer who may be vicariously liable on behalf of TF, the employee, who has committed the crime/tort.
TF has committed the
tort/crime of… when
Traditionally, the two rules where that
TF must have been an employee, and their tort/crime must have happened during the course of employment, first used in JGE v Trustees of Portsmouth Catholic trust. This has since been developed, so TF must at least in a position akin to employment, and there must be a close and sufficient connection between TF’s wrong doing and their employment.
In various claimants v
Catholic Child Welfare Society (CCWS), Lord Phillips stated 5 criteria which can make it fair, just and reasonable to find a relationship akin to employment: 1 if the employer is more likely than the employee to have the means to compensate the victim and be expected to have insurance. 2 the employee was under the control of the employer. 3 the employee’s activity was part of the employer’s business activity. 4 the activity was undertaken on the employer’s behalf and 5 the risk was created by the employer by employing the employee to carry out the activity.
The test was subsequently confirmed in
Cox v Ministry of Justice, Armes v Notts CC, and in Barclays v Various Claimants.
it seems as though TF is
an employee as they work for D . However if there were any question as to whether they are an employee, they may satisfy the akin to employment test
Employers are not vicariously liable for
the torts of independent contractors, confirmed in Barclays v Various Claimants. An independent contractor is not employee, and is liable for their own actions.
here D is a… who employed TF as
an independent contractor… so E alone as the tortfeasor will be liable for c’s injuries when
Responsibility for the actions of an employee can be
shared by more than one employer as in viasystems v thermal transfer.
here TF was arguably employed by
both d and z, so d and z will share responsibility
TF will be classed as an employee because they
satisfy the akin to employment test.
for the second rule
there must be a close or sufficient connection between the employees wrongdoing and the nature of their employment
the court will ask two things
what was the field of activities entrusted by the employer to the relevant employee ie what was the nature of his job? and, was there a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?
the test was first established in
Lister v Hesley Hall and subsequently confirmed in various claimants v ccws, armes v notts cc, mohamud v morrisions, barclays v various claimants and morrisons v claimants.
