Vicarious Liability

Question 1

What is the three part test for establishing vicarious liability?

Answer 1

1. A tort must have been committed by Party A.
2. Party A is an employee of Party B or in a relationship akin to an employment with Party B.
3. A tort was committed in the course of Party A’s employment or quasi-employment.

Question 2

What are the three stages of the economic reality test (used to establish whether Party A is an employee of Party B)?

Answer 2

1. Is there remuneration in exchange for personal service and mutuality of obligation?
2. Does the employer have a degree of control over the employee?
3. Are there other contractual features consistent with employment relationship?

Question 3

When will the court use the relationship akin to employment test?

Answer 3

If it is not clear whether someone is an employee.

Question 4

What is the test for identifying a relationship akin to employment?

Answer 4

Is the relationship sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability?

Question 5

What are the two parts of the close connection test?

Answer 5

1. What functions or field of activities has the employer trusted to the employee?
2. Is there a sufficient connection between the employer’s position and the wrongful conduct to make it just for the employer to be held liable?