Vicarious Liability

Question 1

Give a brief overview of what Vicarious liability is? Give a case- is it harder to see now?

Answer 1

Should an employer be liable for the negligent acts of their employees?
What would be the justification for making employers liable for the negligent acts of their employees?
Employer has control over his or her employees and should be liable for the torts of their employee.
Latter v Braddell (1881)
Modern forms of employment make control less evident.

Question 2

What are the requirements for Vicarious Liability?

Answer 2

Vicarious liability will not be imposed on an employer unless the following criteria are met:

There must be an employer – employee relationship, distinguished from an employer’s relationship with an independent contractor;

The employee must have committed a tort; and

The tort must have been committed while acting within the course of employment.

Question 3

What is the Employment Rights Act 1996?

Answer 3

a person who is employed under a contract of employment.

Question 4

What is the Control Test?

Answer 4

Traditionally used to distinguish employees from independent contractors.
“If the owner controls the actual performance of the work and ‘how’ it has to be done, the worker is regarded as an employee.”

Question 5

Give a case for the Control Test.

Answer 5

Hawley v Luminar Leisure Plc (2005)

Question 6

Test is criticised as being no longer suitable or reliable in a modern day working environment. (CC)

Answer 6

Various Claimants v Catholic Child Welfare Society (2013) – Lord Phillips stated the only significance in a modern world is that the employer can instruct the employee on what to do, but the employee will choose how to do it.

Question 7

CC- Test can still be used – not 100% conclusive.
Other tests must be considered depending on the circumstances. However, what has the Supreme Court recently done?

Answer 7

Supreme Court has recently placed great emphasis on the control test in Uber BV and Others v Aslam and Others [2021]

Question 8

What created the Integration Test?

Answer 8

The integration test was developed by Lord Denning in Stevenson Jordan and Harrison Ltd v McDonald and Evans (1969).

Question 9

What is the Integration Test?

Answer 9

The basis of the test is that someone will be an employee whose work is fully integrated into the business, whereas if a person’s work is only accessory to the business then that person is not an employee.

In other words, if the individual’s work is considered integral to the operation of the business, then they will be most likely an employee.

Question 10

What is the Economic Test?

Answer 10

The courts in recent times have at last recognised that a single test of employment is not satisfactory and may produce confusing results.
The test looks at three conditions which should be met before an employment relationship is identified.

The employee agrees to provide work or skill in return for a wage;

The employee expressly or impliedly accepts that the work will be subject to the control of the employer; and

All other considerations in the contract are consistent with there being a contract of employment rather than any other relationship between the parties.

Question 11

Give a case for the Economic Test?

Answer 11

Ready Mixed Concrete Ltd v Minister of Pensions [1968] ?? YES OR NO?

Question 12

What are the irregular situations?

Answer 12

Certain types of employment have proved more likely to cause problems in the past than others have.
Agency Workers
Casual Workers
Loaning employees
Relationships ‘Akin to Employment’
Courts will look at the individual circumstances of the case to determine whether the person is an employee or classed as self-employed or an independent contractor.

Question 13

What are Agency workers and what is the general rule? Give a case?

Answer 13

General rule is that agency workers are not employees for the purpose of vicarious liability.
Fall under staff of the agency, not employee.
Wickens v Champion Employment [1984]

Question 14

Agency workers-Sometimes the employer will be vicariously liable for the torts committed by an agency worker. Give a case and what test for this would be important in deterring this factor?

Answer 14

Hawley v Luminar Leisure [2005]
The control test would play an important role in determining this factor.

Question 15

Are Casual Workers employees? Give a case.

Answer 15

Employers sometimes use workers on a casual basis.
Not classed as employees.
Employer chooses when to use them and when not to use them.
Carmichael v National Power [2001]

Question 16

Some employers may loan an employee from another company or business.
Question is, if the claimant commits a tort, who is liable?
The House of Lords laid down a number of principles that had to be used in future cases to determine who the employer would be in this situation. These are:

Answer 16

The permanent employer would usually be considered liable, unless they can show good reason why responsibility should be placed on the employer who has borrowed the worker.

In deciding whether there is good reason to place responsibility on the borrowing employer, a key question is who had the immediate right to control the employees’ method of working?

The courts will then identify the act which caused the negligence and ask who had responsibility for preventing that act.

Other important points to consider were who paid the employee?
Who had the right to dismiss the employee? And how long they were borrowed for.

Question 17

Give a case for loaning an employee?

Answer 17

Mersey Docks and Harbour Board v Coggins & Griffiths Ltd [1947]

Question 18

Relationships ‘akin to employment’ Various Claimants v Catholic Child Welfare Society [2013] – just, fair and reasonable to impose the duty on the employer
Give 5 considerations?

Answer 18

The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insurance to guard against liability;

The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

The employee’s activity is likely to be part of the business activity of the employer;

The employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee; and
The employee will, to a greater or lesser degree, have been under the control of the employer.

Question 19

Give a case for relationships ‘akin to employment’.

Answer 19

Cox v Ministry of Justice [2016]- In undertaking these activities, there was clearly a risk that they might commit a variety of negligent acts, and so the prison service could be vicariously liable.

Question 20

What does it mean to Act in the ‘Course of Employment’?

Answer 20

The Tort must be committed during the course of employment.
What constitutes as ‘in the course of employment’ is for the court to decide.

Question 21

Act in the ‘Course of Employment’- Salmond Test

Answer 21

A wrongful act that has been authorised by the employer; or

An act that, while authorised, was carried out in an unauthorised way.

Employer’s could be liable for acts committed even where permission has not been given.

Question 22

What are authorised acts?

Answer 22

Employer is liable for the acts they have authorised.
Could be liable for authorised acts which are authorised by implication (implied).

Question 23

Give a case for authorised acts?

Answer 23

Poland v Parr [1927]

Question 24

What are Authorised Acts in an Unauthorised Manner?

Answer 24

Employee may carry out an authorised act, but do so in an unauthorised way.
E.g. delivery driver delivering goods but driving negligently.

Question 25

Give a case for Authorised Acts in an Unauthorised Manner.

Answer 25

Century Insurance Co. Ltd v Northern Ireland Transport Board [1942]

Question 26

Where an employee applies force in order to achieve the employer’s objectives.

Answer 26

Bayley v Manchester, Sheffield and Lincolnshire Railway Co. (1873) LR 8 CP 148

Question 27

Where the employee identifies himself as an employee even though the act is not to do with the employment

Answer 27

Weir v Chief Constable of Merseyside Police [2003] EWCA Civ 111

Question 28

Where the employee exceeds the proper boundaries of the job.

Answer 28

Fenelly v Connex South Eastern Ltd [2001] IRLR 390

Question 29

What is expressed prohibition?

Answer 29

Employer who expressly prohibits an act will not be liable if the employee commits the act.
Employer may be liable if the prohibition can be regarded as applying to the way in which the job is done.

Question 30

Give cases for expressed prohibition?

Answer 30

Twine v Bean’s Express Ltd (1946)

Rose v Plenty [1976]

Limpus v London General Omnibus Company (1862)