Vicarious Liability Flashcards
what is vicarious liability?
when an employer is held liable for the torts of their employees committed during the course of employment
what are the ‘5 incidents’ reiterated by Lord Phillips?
-the employer is more likely to have the means to compensate the victim and can be expected to have insured against that liability
-the tort will have been committed as a result of an activity being performed by the employee on behalf of the employer
-the employees activity is likely to be part of the business activity of the employer
-the employer, by employing the employee, will have created the risk of the tort being committed
-the employee will, to a greater or lesser degree, have been under the control of the employer
what 3 questions are asked to establish liability?
1- was a tort committed?
2- was the tortfeasor an employee?
3- was the employee acting in the course of employment when the tort was committed?
what is the name of the test used to establish employment status?
the salmond test (‘a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment’)
what are the 2 situations an employer will usually be held liable for?
-wrongful acts that are actually authorised by the employer
-acts which are wrongful ways of doing something authorised by the employer, even if the acts themselves were expressly forbidden by the employer
what test is used when there is doubt about if an employer should be held liable?
the close connection test:
-what function or field of activities has been entrusted by the employer to the employee
-was there a sufficient connection between the position in which the employee was employed and the wrongful conduct, to make it right for the employer to be held liable?
what is it called when the defendant is held to be acting outside of the course of employment?
‘on a frolic of their own’
what does ‘deduction of wages’ mean in relation to vicarious liabiltiy?
the employer can recover any compensation paid out from the employee’s wages under the civil liability (contributions) act 1978
how does fault work in vicarious liability?
so long as the person committing the tort was doing so in the course of his employment, the employer will be liable without further proof.
-the employer has chosen an employee who could commit a tort
-the training for the job may be inadequate/inappropriate
-the employer should have supervised more efficiently
how does vicarious liability work in terms of independent contractors?
‘where it is clear that the tortfeasor is carrying on his own independent business, it is not necessary to consider the five incidents’ - Lady Hale
key cases on vicarious liability
-Christian Brothers case
-Mohamud v WM Morrison Supermarkets plc
-Joel v Morison
-Morrison Supermarkets v Various Claimants
