Vicarious Liability Flashcards
Vicarious liability
Based on an employer being liable for the actions of employees.This is an example of strict liability. This covers torts and in limited circumstances crimes. Main remedy is compensation.
Why is it beneficial to hold an employer liable for an employee
Main reason is because employers will have insurance.
The test:
- Tortfeaser commits a tort whilst undertaking role of employer or in a position akin to employment
- Tort was committed in the course of employment (non-intentional torts) or was considered as closely conected to the employment (intentional torts)
CONFIRMED IN CASE: Trustees of Barry Congregation of Jehovah’s Witnesses V BXB
Tortfeasor must be an employee (traditional tests) or in position akin to employment (non-traditional test). TRADITIONAL TESTS:
Traditional tests:
1. control test. Determines if employer had right to control what employee did and way it was done. Includes loaned out employees and equipment.
2. Integration test. Considers if the tortfeasors work was fully for the business. If they were only accessory to the business theu are an indepedent contractor
3. Economic reality test. Known as multiple factors test - looks at various factors such as equipment, payment, role and autonomy, which may indicate that the tortfeasor is employed or self employed.
Tortfeasor must be an employee (traditional tests) or in position akin to employment (non-traditional test). NON-TRADITIONAL TEST:
- Akin to employment test. Most recent test. Employers not responsible for IC. Acts as a defence where individual was independent from business.
CASE: Barclays bank Plc V various claimants
* Held - Dr Bates was not an employee but was an IC and therefore not relationship akin to employment. Bank not liable for Drs actions.
CASE: Catholic Brothers
* Held - factors to consider it fair, just and reasonable to hold the employer VL:
C - compensation
O - on behalf of D
B - business actuvity
R - risk
A - a degree of control
Catholic Brothers factors:
- D is more likely to have a means of compensation
- tort was committed as result of activity being undertaken on behalf of D
- Tortfeasors activity likely part of D’s business activity
- D has created the risk of the tort by employing the tortfeasor.
- D maintains a degree of control over tortfeasor.
Do the actions fall within the course of employment (non-intentional torts) or is there a sufficiently close connection between the employment and the tort (intentional tort)
NON-INTENTIONAL TORT: actions within course of employment - liable
- authorised acts
where an employee is undertaking a task they have expressly or impliedly authorised to do within their employment responsibilities - authorised acts done in negligent way
where an employee carries out an act that they are forbidden to do or undertakes an act negligently but does do in the course of executing their contractual duties an employer may still be VL.
CASE: Rose V Plenty - held- liable. Plenty was doing their job in a prohibited way, the fact the employers warned Plenty did not remove liability.
Do the actions fall within the course of employment (non-intentional torts) or is there a sufficiently close connection between the employment and the tort (intentional tort)
NON-INTENTIONAL TORT: actions outside course of employment (not-liable)
- Outside the scope of employment
If an employee undertakes an act that is unauthorised and outside of an employees contractual duties it will not form the basis of a claim - frolic on their own
where the tort is committed whilst tortfeasor is doing something outside the area and time of work. This can include travelling to and from work unless nature of travel was within employees job role.
CASE: Shelbourne V CRUK - Held - not liable. Was not within field of activities entrusted by CRUK but rather a frolic of his own.
Do the actions fall within the course of employment (non-intentional torts) or is there a sufficiently close connection between the employment and the tort (intentional tort)
INTENTIONAL TORT: Liable
- criminal acts that are ‘closely connected’ employment
- CASE: Mohamud V Morrisons
Held - liable. The employee was acting within field of activities (interacting with customers), the abuse was closely connected.
Do the actions fall within the course of employment (non-intentional torts) or is there a sufficiently close connection between the employment and the tort (intentional tort)
INTENTIONAL TORT: not liable
- criminal acts that are NOT ‘closely connected’ to employment
- CASE: Wm Morrisons supermarket PLC V Various claimants
Held - not liable. The data breach was committed as a vendetta to deliberately harm them, with no benefit to the employer not closely connected.
