Vicarious Liability

Question 1

What is the first stage of vicarious liability? (outline steps for answer)

Answer 1

To establish vicarious liability against an employer there are 3 elements. Firstly, the wrongdoer must have committed a tort already established against C (you will already have established negligence so just state what happened to C). Secondly, the wrongdoer must be classed as an employee. Finally, the wrongdoer must have committed the tort during the course of their employment or the scope of their employment.

Question 2

What is the second stage of vicarious liability? (employee)

Answer 2

C must establish that D is an employee or has a relationship akin to employment. This would be under a contract of service and an employer would be vicariously liable for an employee.

This can be discerned through different tests. (use relevant)

Question 3

What are the tests that can be applied to understand if there is a relationship?

Answer 3

Control Test - Does the employer have the right to control what the employee does and the way it is done? (Luminar Leisure)

Integration test - A worker is an employee where his or her work is fully integrated into the business. If their work is only an accessory to the business, they aren’t an employee. Stevenson v Mcdonald

Economic reality test - This is where all factors in a working relationship are considered. Such as whether the employee is provided with equipment, if they receive regular wages, if tax is deducted from their wages, etc. (Ready Mixed Concrete v Minister of Pensions)

Modern Test - This looks at whether there was a relationship which was ‘akin to employment’ which considers all the relevant factors and circumstances.

Question 4

What is the third stage of vicarious liability?

Answer 4

The employer will only be liable for those torts committed ‘in the course, or in the scope of, the employment’. The Salmond Test says the employer is liable in 2 instances:​

For wrongful acts authorised by the employer​

For authorised acts carried out in an unauthorised way

Question 5

What are the four examples of actions that are in the course of employment?

Answer 5

1) If the employee is doing their job but acts against orders in the way he or she does it, the employer is still liable (Limpus v London General) However, if this caused injury doing something they were not employed to do, employer not liable. (Beard v London Omnibus)

2) If the employee commits a crime during their work, the employer may be liable if there is a ‘close connection’ between the crime and what the employee was employed to do’ - Lister v Helsey Hall

3) If an employee does a job negligently, badly, the employer will be liable where the actions cause injury - Century Insurance v Northern Ireland Road Transport Board

4) If the employee causes injury or damage at a time outside their work, they will be on a ‘frolic of their own’ - Hilton v Thomas Burton