Vicarious Liability Flashcards
What is the test to determine whether there is a relationship akin to employment?
1) Employer is more likely to have means to compensate the victim than the employee and can be expected to have insured against that 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) The 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.
What are the three elements for a vicarious liability (VL) claim?
1) Worker must be an employee (or a relationship akin to employment);
2) The employee must have committed a tort; and
3) The tort must have been committed during the employees course of employment.
Can employees be held liable for the actions of independent contractors?
No.
There must be an employment contract for the person committing the tort for the employee to be liable.
Give an example of an independent contractor.
Self employed plumbers, builders and electricians.
Give the classic definition for acts committed within the course of employment which the employer will be liable for.
This will either be:
1) wrongful acts which is has authorised.
2) wrongful and unauthorised modes of carrying out an authorised act.
Explain the case of Poland v Parr.
Man pushes thief to stop him sealing employer goods.
It was held the man had implied permission to push away the thief. The employer was therefore deemed to have authorised the tort (battery) the employee committed.
Explain the case of Warren v Henleys Ltd.
Employee who was insulted by a customer and punched him in the face was held not to be acting in the course of employment.
The retaliation was a personal act not deemed to be impliedly authorised/ connected with his employment,.
Explain the case of Century Insurance v NI road Transport Board.
Driver had cigarette whilst unloading tank of oil.
He threw match away after lighting cigarette.
This was held to be in the course of employment as he was doing an authorised act (unloading the oil) in an unauthorised way.
When might an expressly prohibited act still be deemed to be inside the employer’s employment?
Commonly accepted that, if a prohibited act is being done to further the employer’s business, this will be deemed to be in the course of employment for the purposes of VL.
give an example where it was held a prohibited act fell within the scope of employment for Vl purposes.
Milkman used 13 year old boy to help him deliver milk (using children for such work was expressly prohibited by the employer).
Boy was injured and COA held employer was vicariously liable. The act was done to further the employer’s business and therefore fell within the scope of employment.
Explain the case of Twine v Bean’s Express (a case where it was held the prohibited act did not fall within the course of employment).
D gave lift to hitchhiker whilst driving his work van.
Giving lots was expressly prohibited by employer.
They crashed and the hitchhiker was injured.
Held - this did not further the employer’s business at all and therefore there was no VL.
Explain when an employer will be liable for an intentional tort (usually always a criminal act) committed by an employee.
This involves applying the lister principle.
It must considered whether:
1) What work the employee had been employed to do and whether there was a sufficiently close connection between the position in which they were employed and the wrongful conduct; and
2) On the circumstances whether it is fair just and reasonable to hold the employer liable.
When might an employee be committing a tort on ‘a frolic of their own’?
Usually related to employees driving around.
In effect, the greater they diverge from their route/ place of employment, or from the task they have been assigned, the more likely it is a court will deem they were acting on a frolic of their won and therefore outside the course of their employment.
Explain the indemnity available to the employer.
Where employer has paid out compensation to someone (either through insurance proceeds or otherwise) after being found vicariously liable, employer has right to claim indemnity from the employee who committed the tort.
