Vicarious Liability

Question 1

Who are the parties to a claim in VL?

Answer 1

Claimant
Defendant
Tortfeasor

Question 2

What is vicarious liability?

Answer 2

Vicarious liability is where the D is responsible for the tort of another.

Question 3

What is the test for VL?

Answer 3

1. The tortfeasor must have committed a tort rather than a crime: has the C has suffered a loss/ injury (Poland v Parr).
2. The tortfeasor must be an employee: T must be an employee or ‘akin to employment’.
3. The tortfeasor must be acting in the course of his employment: Is the tort committed in the course of employment or closely connected?

Question 4

What are the tests for establishing T is an employee?

Answer 4

Control, integration and multiple test

Or

Akin to employment

Question 5

Control test

Answer 5

Employees are told what to do and how to do it (Hawley v Luminar Leisure)

Question 6

Integration test

Answer 6

The more closely a worker is involved with the core business then the more likely he is to be an employee (Stevenson, Jordan & Harrison v McDonald & Evans)

Question 7

Multiple test

Answer 7

Considers factors to determine whether a worker is an employee or a independent contractor (Readymix Concrete v Minister of Pensions)

Question 8

Multiple test factors

Answer 8

Control

Personal performance (Echo & Express Publication v Tanton)

Mutuality of obligation (Carmichael v National Power)

Question 9

Akin to employment

Answer 9

Relationship between employer/ employee is ‘akin’ (like) employment and commission of tort is ‘closely connected’ to tort.

Question 10

Case for ‘akin to employment’ criteria

Answer 10

Catholic Brothers

Question 11

Catholic Brothers criteria

Answer 11

1. Employer more likely to have means to compensate (insurance)
2. Tort comitted as a result of activity
3. Activity likely to be part of business activity
4. Employer created risk
5. Employer will be under control of employer

Question 12

Who does vicarious liability not apply to?

Answer 12

Independent contractors

Question 13

Who is liable for an independent contractor?

Answer 13

They are responsible for their own tort if committed in the course of employment (Barclays v Various Claimants)

Question 14

What is classed as ‘in the course or employment’?

Answer 14

Authorised act down in wrongful/ unauthorised way (Century Insurance)

Authorised act don in expressly forbidden way (Rose v Plenty)

Unauthorised act (Beard v LGO) = no vicarious liability.

Acting negligently (Century Insurance)

Question 15

What does ‘closely connected’ mean?

Answer 15

There must be a ‘close connection’ between the relationship and the wrongdoing that was done (Dubai Aluminium v Salaam)

Question 16

WHEN is a D not reaponsible for the T?

Answer 16

If T was on a ‘frolic of his own’ and not ‘in the course of employment’ (Twine v Beans).

Question 17

Remedy for a successful claim in vicarious liability

Answer 17

Employer pays damages, recover under The Civil Liability (Contribution) Act 1978.