Vicarious Liability Flashcards
Describe Vicarious Liability
Where one person is responsible for the tort of another
What test will be used to decide if employers are vicariously liable
According to the Salmond Test employers are vicariously liable when:
-An employee commits an unintentional tort
-the person committing the tort is an employee, and
-the tort occurs in the course of the employment
Test for employment status
-Control test
-Integration or organisation test
-Economic reality or multiple test
Control Test
Lord Thankerton in Short v J W Henderson Ltd identified key elements which would show that the employer had control over the employee including:
-The power to select the employee
-The right to control the method of working
-The right to suspend and dismiss
-The payment of wages
Can be used in case of borrowed workers - Mersey v docks & Harbour Board v Coggins and Griffiths (Liverpool LTD)
Recent development of control test can be used in case of bouncers - Hawley v Luminar leisure
The integration Test
Established by Lord Denning in Stevenson, Jordan and Harrison Ltd v McDonald and Evans
Provides that:
-A worker will be an employee if their work is full integrated into the business
-If a persons work is only accessory to the business that person is not an employee
According to the test:
-The master of a ship, a chauffeur or a newspaper staff reporter are all examples of employees
-A pilot bringing a ship into a port, a taxi driver and a freelancer are not employees
Multiple Test
-Where the court recognises that a single test of employment status is not satisfactory and may produce confusing results
-This test considers multiple factors which may indicate employment or self-employment
-Established in Ready Mixed Concrete Ltd v Minister of Pensions and National Insurance
Factors for multiple test
-Factors may be considered:
-Ownership of tools or equipment
-Job description
-Independence to make decisions in doing a job
Factors may be useful but not absolute, confusion has still been caused in cases:
-Carmichael v National power - Tour guides on casual basis
-Ferguson v Dawes - building labourer claiming self employment (NOT)
Liability for Torts committed in the course of employment
-In order for employer to be liable, employee must commit tort in the course of employment
Two lines to go on for cases:
1. There is vicarious liability because the employee is acting in the course of employment
2.There is no vicarious liability because there is a reason the employee is not acting in the course of employment
If it is found that the employee was not acting in course of employment then employer not liable, classed as employee going on a frolic of ones own
Seen in Hilton v Thomas Burton Ltd
Acting Against orders
If the employee is doing there job but acts against orders in the way they do it, employer can be liable
-Limpus v London Generel Omnibus
-Rose v Plenty
Employee committing a negligent act
If the employee does a job badly and causes injury to another, employer can be liable for those actions
-Shown in Century Insurance v Northern Ireland Road Transport Board
Akin to employment
Test set by Lord Phillips in case of Catholic Child Welfare Society, five points that can make it fair, just and reasonable to find a relationship akin to employment and impose vicarious liability on employer:
- Employer is more likely to have the means to compensate the victim.
2.Tort will have been committed as a result of activity being taken by the employee on behalf of employer.
3.Employees activity is likely to be part of business activity of the employer
4.The employer, by employing the employee to carry out activity will have created the risk of the tort committed by the employee
5.The employee will, to a greater or lesser degree, have been under the control of the employer
Independant contractors
-If the tortfeasor is an independent contractor, the business alleged to be their employer will not be vicariously liable for their actions
-This was considered in Morrisons Supermarket v Various Claimants
