Vicarious Liability Flashcards
Definition of vicarious liability
Where a third person has legal responsibility for the unlawful actions of another. It is commonly seen in the workplace where the employer is responsible for the actions of their employee, who acted in the course of their employment.
The control test
Mersey Docks and Harbour Board v Coggins and Griffiths
- the terms in any hire contract of an employee are not decisive
- the permanent employer is presumed liable unless the contrary can be proved
- if an employee alone is hired out there can be an inference that the hirer becomes the employer. If the employee is hired out with equipment, the inference is not as strong.
Hawley v Luminar Leisure Ltd
If the new employer exercises a lot of control, they can be liable
Viasystems Ltd v Thermal Transfer
Can be dual liability, with each employer contributing 50%
Intervention or organisation test
Stevenson Jordan and Harrison Ltd v McDonald and Evans
A worker is an employee if their work is fully integrated into the business, not an accessory
The master of a shop, a chauffeur or staff newspaper reporter vs the pilot bringing a ship to port, a taxi driver and freelance writer
Economic reality test
Ready mix concrete
1. Employee agrees to provide work or skill in return for a wage / salary
2. The employee expressly or impliedly accepts that the work will be subject to the control of the employer
3. All other considerations of the contract are consistent with there behind a contract of employment rather than any other relationship
4. Ownership of tools or equipment
5. Method of payment - invoices, per job etc
6. Whether they submit self assessments or tax contributions are deducted from wage
7. Job description - employee or self employed
8. Independence and flexibility in what jobs and when
Useful in identifying but none are an absolute test
Recent developments
E v English Province of Our Lady of Charity
Court required to look for
1. A relationship akin to employment
2. Which was established by a connection between a putative defendant and an actor which was sufficiently close to that
3. Fair and just to impose liability on the defendant
Several questions which may point to vicarious liability
A. Control by the employer of the employee
B. Control by the contractor of themself
C. The organisation test
D. The integration test
Principle of JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust and Catholic Child Welfare Society v Brothers of the Christian Schools
Relationship was close enough to employment that it was fair to hold church accountable
Principle of Mohamed v Morrison Supermarkets
Was there a sufficient connection between what D did and his job?
Principle of Cox v Ministry of Justice
A prisoner can have an employer / employee relationship
Principle of Fletcher v Chancery Supplies
Employer not liable where employee is not acting in the course of business
Congrats with Mohamud v Morrison
Cases where employee acted against orders
Limpus v London General and Rose v Plenty - employer liable as employee was acting in the course of employment, even if it was against orders
Twine v Beans express - employer not liable as they gain nothing from D acting against orders
Beard v London General Omnibus - did a role outside of his own, so employer not liable
Cases where employee committed a criminal act
Lister v Hesley Hall - was a close connection between act of molestation and job of teaching so employer could be liable
N v Chief Constable of Mereyside Police - no close connection between act and job so employer not liable
Mattis v Pollock - bouncer encouraged to use force and inflicted GBH on customer so employer could be liable
Case involving employee committing negligent act
Century insurance co. Ltd v Northern Ireland Road Transport Board - employee was doing job, though negligently, so employer liable
Cases invoking employee acting on a frolic of their own
If the employee causes damage outside the area or time or work, employer will not be liable
Hilton v Thomas Burton Ltd - unauthorised break to cafe, frolic of their own
Smith v Stages - driving back from job to work, paid for travel time, so employer liable
Compensation
Employee will be primarily liable and can be ordered to pay, but company is vicariously liable and can also be ordered to pay. Victim will receive one payment.
By Civil Liability (Contribution) Act 1978, employer can recover compensation from employee, potentially though deduction from wages.
Other areas of vicarious liability
Parent who should have supervised child
Bishop of church (E v English Province of Our Lady of Charity)
A religious organisation who’s members taught in a school (Catholic Child Welfare Society v Brothers of the Christian Schools)
An employer and employer (Mohamud v Morrison Supermarkets)
The prison service and a prisoner (Cox v Ministry of Justice)
