Vicarious Liability Flashcards
what is vicarious liability?
Vicarious Liability is a rule of law that imposes strict liability on employers for the wrongdoings of their employees
what is a worker?
someone who performs services for payment
what are the two types of workers?
-employees
-independent contractors (self-employed)
are employers liable for employees?
yes
are employers liable for independent contractors?
no
what is the difference between an employee and independent contractor?
employee works under a contract of service whereas an independent contractor for services
what is the control test?
-independent contractor told only what to do
-employee told what to do and how to do it
walker v crystal palace football club
in which a court held that a professional footballer was an employee because his employer maintained a high degree of control over training schedule etc.
Faults of control test
-does not deal with professional or highly skilled workers
-not the ‘what to do’ but ‘how to do it’
what is the integration test?
more closely worker involved with core business of employer the more likely he is an employee - doctors for instance
problems of integration test
not always sure who is integral to business of employer
what is the multiple test?
modern approach and reflects that there is no single way of identifying the difference
ready mixed concrete v MPNI
a contract provided for a driver to own his lorry and allowed him to use it for his own profit-making purposes. However, the drivers wore company uniforms, their lorries were painted in company colours and they had to follow instructions from the company. the courts found that he was an independent contractor using the multiple test
How has the ready mix concrete v ministry of pension test been updated/
-does the employee own their own tools/equipment , if so, less likely to be an employee
-how are they paid? regular instalments means that you are more likely to be an employee, end of job -self employed
-are tax, national insurance etc been deducted from employee’s money? if yes more likely to be employed-if not and are filling in self assessment then it is more likely to be self-employed
-how much flexibility is involved in the job? the more flexibility the more likely you are to be self-employed
catholic welfare child trust v various claimants
-the employer is more likely to have the means to compensate the victim and can be expected to have insured against that liability
-the act will have been committed as a result of activity being taken by the employee on behalf of the employer
-the employer by employing the employee to carry out on the activity will have created the risk of the act being committed by the employee
-the employee will to a greater or lesser degree have been under the control of the employer
Barclays v various claimants
Barclays argued that Dr Bates was self employed, first instance and COA disagreed using 2 stage test handed down in the linked cases of Cox v MJ and Mohamud v Morrisons, Supreme Court found Barclays not liable.
Cox v ministry of justice
claimant: catering manager in a prison
defendant: minister of justice as the executive agent of the prison service
facts: claimant managed the prison staff and some prisoners. during a negligent incident a prisoner dropped a bag of rice on their back and caused injury.
outcome: prison was liable
legal principle: it is possible for vicarious liability to be imposed where there is a relationship of employment, rather than employment itself
can more than one employer be vicariously liable?
yes, viasystems ltd v thermal transfer
what is an authorised act?
an act carried out by the employee on the instructions of the employer and if the act amounts to a tort or sometimes a crime the employer is vicariously liable. this applies even if employee carrying out duties in an unauthorised manner, century insurance v northern Ireland road transport board 1942
century insurance v northern Ireland road transport board 1942
a petrol tank driver employed by dd was delivering petrol to a garage. while the petrol was flowing he lit a cigarette and negligently threw away the lighted match, causing an explosion and extensive damage. the HOL said the driver was still acting in the course of his employment, even if it was negligently.
is an employer still liable even if the act was a forbidden method?
yes, limpus v london general omnibus 1863
limpus v london omnibus 1862
the drivers of horse-drawn buses were expressly forbidden to race their buses; one did and caused an accident. the company were vicariously liable even though the act was one that they expressly forbidden.
what is an unauthorised act?
an act carried out by the employee without instructions from the employer either express or implied. if the act is unauthorised and therefore not part of the job then employer not vicariously liable, beard v london general omnibus 1900
beard v london general omnibus (1900)
A was a driver of a bus owned by Z. A went for lunch to a restaurant and during this time the conductor D decides to reverse the bus so they could be ready to go when A comes back. While doing so he negligently hit a passer-by. LGO were not liable, it was an unauthorised act.
what is the law surrounding road traffic accidents?
an example is negligent driving by an employee, journeys to and from work generally outside course of employment, journeys in work time normally covered. two issues arise: giving a lift to unauthorised person or making a detour
hilton v thomas burton ltd 1961
workmen took an unauthorised break and left their place of work. on returning to work one employee, who was driving the works van, crashed the van and killed someone. the employer was held not liable as workmen were on a ‘frolic of their own’
conway v george wimpey & co 1951
a driver, who, despite express prohibitions, gave lift to an employee of another firm, and negligently injured him in an accident. no liability was imposed on the employer.
rose v plenty 1976
a milkman took a 13 year old boy to help him on his round, and the boy was injured through the milkman’s negligent driving. COA found the dairy vicariously liable for the boys injuries. the boy was actually helping to deliver the milk, and so the driver’s action was an unauthorised way of performing his duties.
deviation from a set route:
whether a driver remains in course of employment depends on degree of variation. and whether he remains on employer’s business or is doing something quite different. this is known as a ‘frolic of his own’.
storey v ashton (1869)
a wine merchants carman and clerk went to deliver some wine and collect empty bottles. on the way back, they detoured to fetch a cask belonging to the clerk, and ran over P. employer was not vicariously liable, carman was on ‘frolic of his own’
A & W Hemphill Ltd v Williams 1966
a driver of a lorry deviated substantially from his route whilst transporting some boys back home after camping. they took a detour and an accident occurred owing the fault of the driver and one of the boys was seriously injured. the employer was vicariously liable because the driver was still carrying out his central task
criminal offences
if the employers tort is also a criminal offence employer still vicariously liable if he authorised acts express or impliedly
lister v hesley hall 2001
a number of former pupils sued in respect of sexual abuse by the warden of a residential school. overruling T v North Yorkshire, the HOL said there had been a close connection between the wardens acts and his employment at the school, and it would NOT be unfair and unjust to hold the defendants vicariously liable
Mohamad v Morrison
this case established the close connection test, it additionally does not matter that the act of the tortfeasor amounts to a crime, a defendant employer can still be found vicariously liable from the start. the claimant entered a supermarket petrol station and was rudely refused service by the tortfeasor. the claimant was then threatened and received racist abuse then physically assaulted. morrisons liable.
Wm Morrisons v Various Claimants
Mr Skelton, unlawfully disseminated data relating to its employees, in a deliberate attempt to frame a work colleague. in lower courts, morrisons were held liable. they supreme court allowed appeal and they were not liable
