Vicarious Liability Flashcards
Vicarious liability: definition
Enables the injured claimant to sue both the employee and employer and see which would be better suited to pay compensation.
Vicarious liability: Salmond Test
Vicarious liable when:
* An employee commits and unintentional tort
* The person committing the tort is an employee
* Tort occurs during the course of employment.
Vicarious liability: Parties
- The tortfeasor: person who commits tort (employee)
*The claimant: Person whose suffered from tort - The defendant: Person liable for the tort.
Vicarious liability: Employee commits tort
Frequently where the employee had committed the tort of negligence.
Vicarious liability: Is an employee
There is a number of different tests that can establish if someone is an employee or not:
* Traditional test
* Control test
* Organization test
* Multiple test
* Sufficiently close test
Vicarious liability: Traditional test
Where someone was providing:
* A contract of service - employee
* A contract for service - Independent contractor
Vicarious liability: Control test
Identified by Lord Thankerton in Short v J W Henderson LTD: whether the employer has control over the employee:
* Power to select the employee
* Right to control the method of working
* Right to suspend and dismiss
* Payment of wages
Hawley v Luminar Leisure.
Vicarious liability: Organization test
Established by Lord Denning:
* A worker is an employee if their work is fully integrated to the business.
* If the work is only an accessory, they are not an employee.
Vicarious liability: Multiple test
- Ownership of tools (An employee is less likely to own tools).
- Method of payment (Self-employed receive payment for a whole job).
- Tax & National insurance (Self assessments).
- Role description.
Vicarious liability: Sufficiently close test
COX v MOJ
Vicarious liability: Acting in the course of employment
If the employee causes damage to another whilst out of work - employer not liable.
If employee does a job badly and results in people injured: Employer can be liable
Travelling to work is not in the course of employment: Smith v Stages.
