Vicarious Liability Flashcards
What does vicarious liability do?
Transfers the blame for a tort from the employee to the employer
What are the two overarching tests for vicarious liability?
- The tortfeasor must be an employee
- The employee must have been acting in the course of their employment when they committed the tort
What are the three tests to establish if the tortfeasor is an employee?
- Control test
- Integration test
- Economic reality test
What is the control test?
The tortfeasor must be told what to do AND how to do it.
If they are only told what to do, this will indicate they are self-employed and not an employee
What is the integration test?
This is where you establish if the worker is an essential part of the business. If they are essential, this would indicate that the worker is an employee. If they are not essential, this would indicate that they are an independent contractor.
What is the economic reality test?
The court will look at the following to determine if the tortfeasor is an employee -
1. The ownership of any tools, plant or equipment
2. The method of payment
3. Tax
The ownership of any tools, plant or equipment
An employee is less likely to own the plan and the equipment used to carry out their work.
The method of payment
A self-employed person is likely to take payment for completing a whole job where an employee will usually receive regular payments (salary) for the period of employment.
Tax
Tax, national insurance and pension contributions are deducted from employees’ wages, whereas a self-employed person will have to submit a self-assessment tax return and pay tax annually.
The ‘Salmond Test’ states that the employer will be liable in two instances, what are they?
A wrongful act that has been authorised by the employer; OR
An act that, while authorised was carried out in an unauthorised way.
What are the two main ways an employee can carry out an authorised act in an unauthorised way?
- The employee acted against the employer’s orders
- The employee acted negligently whilst doing their job
Limpus v London General Omnibus Company
The employee acted against the employer’s orders
Century Insurance Company Co Ltd v Northern Ireland Transport Board
The employee acted negligently whilst doing their job
What is a “frolic of their own”?
When the employee acts outside the course of their employment, the employer will not be liable
Hilton v Thomas Burton).
Frolic of their own
