VICARIOUS LIABILITY Flashcards
DEFINITION
1- there must be an employer - employee relationship, distinguished from an employers relationship with an independent contractor
2- the employee must have committed a tort
3- the tort must have been committed while acting within the course of employment
WHO IS AN EMPLOYEE
employment rights act 1996 - person who is employed under a contract of employment
THE CONTROL TEST
traditionally used to distinguish employees from independent contractors
HAWLEY v LUMINAR LEISURE PLC
no longer suitable or reliable in a modern day working environment
VARIOUS CLAIMANTS v CATHOLIC CHILD WELFARE SOCIETY
UBER BV AND OTHERS v ASLAM AND OTHERS
INTEGRATION TEST
LORD DENNING IN STEVENSON JORDAND AND HARRISON v MCDONALD AND EVANS
someone will be an employee whose work is fully integrated into the business whereas if a persons work is only accessory to the business then that person is not an employee
if individual’s work is considered integral to the operation of the business
ECONOMIC TEST
- single test of employment is not satisfactory and may produce confusing results
- test looks at 3 conditions which should be met before an employment relationship is identified
1 = employee agrees to provide work or skill in return for a wage
2 = employee expressly or impliedly accepts that the work will be subject to the control of the employer
3 = all other considerations in the contract are consistent with there being a contract of employment rather than any other relationship between the parties
AGENCY WORKERS
- general rule is that agency workers are not employees for purpose of VL
- fall under staff of the agency, not employee
WICKENS v CHAMPION EMPLOYMENT - no obligation to find work for them and no continuity and care which is consistent to a contract of employment - HAWLEY v LUMINAR LEISURE
- control test would be used
CASUAL WORKERS
- 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
LOANING AN EMPLOYEE
- some may loan an employee from another company or business
- HoL 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:
= 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
= who had the immediate right to control the employers method of working?
= 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? - MERSEY DOCKS AND HARBOUR BOARD v COGGINS AND GRIFFITHS
RELATIONSHIPS AKIN TO EMPLOYMENT
- similar to an employer/employee relationship that is enough to warrant liability
VARIOUS CLAIMANTS v CATHOLIC CHILD WELFARE SOCIETY = just, fair and reasonable to impose the duty on the employer:
1= 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
2= tort will have been committed as a result of activity being taken by the employee on behalf of the employer
3= employee’s activity is likely to be part of the business activity of the employer
4= employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee
5= employee will, to a greater or lesser degree, have been under the control of the employer
COX v MINISTRY OF JUSTICE
EMPLOYEE MUST COMMIT A TORT
negligent acts or omission
trespass to the person
defamation
nuisance
ACTS IN THE ‘COURSE OF EMPLOYMENT’
- tort must be committed during course of employment
- constitutes is for the court to decide
SALMOND TEST =
1- a wrongful act that has been authorised by the employer or
2- 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
AUTHORISED ACTS
- employer is liable for the acts they have authorised
- could be liable for authorised acts which are authorised by implication
- POLAND v PARR
AUTHORISED ACTS IN AN UNAUTHORISED MANNER
- employee may carry out an authorised act but do so in an unauthorised way
- CENTURY INSURANCE v NI TRANSPORT BOARD
EXPRESSED PROHIBITION
- 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
- TWINE v BEAN’S EXPRESS
- ROSE v PLENTY
LIMPUS v LONDON GENERAL OMNIBUS COMPANY
