Vicarious Liability

Question 1

Introduction?

Answer 1

Vicarious liability is not an individual tort claim like negligence or nuisance, it is a way of imposing tort on someone who did not commit the tort. It is based on the idea that the employer has control over his employees and therefore should be responsible for any torts committed by the employees at work.

Question 2

What does the Salmond Test set out?

Answer 2

The two main tests for vicarious liability.

1) Was the person alleged to have committed the Tort an employee.

2) Did the employee commit the Tort during his employment.

Question 3

A) The control test: Employer had right to control?

Answer 3

Yewens v Noakes - The test was whether the employer had the right to control what the employee did.

Question 4

A) The Control test: Power to select employee?

Answer 4

Short v J W Henderson - Identified the key features of the control test to be - the power to select the employee, the right to suspend and dismiss and the right to pay wages.

Question 5

B) The Integration Test: Fully integrated?

Answer 5

Stevenson v McDonald - introduced this test and held that a worker is an employee if his work is fully integrated into the business e.g. Master of a ship or chauffer.

Question 6

B) The Integration Test: Accessory to the business?

Answer 6

If his work is only an accessory to the business, then he is not an employee, e.g. a pilot bringing a ship into the port, a taxi driver.

Question 7

C) Economic reality test: ?

Answer 7

Ready Mixed Concrete v Minister of Pensions - The employer agrees to provide work or skill in return for a wage, the employee accepts the work.

All other considerations in the contract are consistent with there being a contract of employment.

This test has been updated so all factors in the relationship should be considered. Including an independence of the the job, the ownership of tools, description of the role.

Question 8

D) Akin to Employment: Not traditionally employed?

Answer 8

Lister v Hesley - Not traditionally employed.

Question 9

D) Akin to Employment: Relationship like employment?

Answer 9

E v English Province Charity - The Court must look for a relationship like employment.

Question 10

D) Akin to Employment: Benefits the employer?

Answer 10

Cox v Ministry of Justice - The employee is doing work that benefits the employer, Lord Phillips set out the Criteria.

1) The employer is more likely to have the mean to compensate the victim.
2) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer.
3) The 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) The employee would have been under the control of the employer.

Question 11

Independent Contractors?

Answer 11

Barclays Bank PLC v Various Claimants - Employers are generally not liable for the tort of independent contractors.

Question 12

Shared Employees?

Answer 12

Viasystems LTD v Various Claimants - Where an employee is shared between two defendants both are equally liable.

Question 13

Did the employee commit the tort during the course of employment?

Answer 13

Poland v Parr - Is there tort? Tort is usually negligence or criminal act (non fatal).

Question 14

No not within course of employment: Acting against orders - Employee doing their job?

Answer 14

Twine v Beans Express - Held that if an employee gives unauthorised lifts then an employer cannot be held liable. (employer not benefiting from work).

Question 15

No not within course of employment: Employee acting on a frolic of their own - Employee not doing their job?

Answer 15

Hilton v Thomas Burton - If an employee causes injury doing something they should not be doing (acting on a frolic) then the employer will not be liable.

Question 16

No not within course of employment: Acting outside the scope of their employment - Employee not doing their job?

Answer 16

Beard v London General - If an employee causes injury by doing something outside of the scope of their employment (but still part of the business) then employer not liable.

Question 17

Yes within course of employment: Acting in an unauthorised manner - Employee doing their job?

Answer 17

Limpus v London General - If the employee is acting against orders the employer can still be liable if the employee was still doing their job.

Question 18

Yes within course of employment: Employer benefiting from the work - Employee doing their job?

Answer 18

Rose v Plenty - Employer still liable as the employer benefitted from the work even if the employee went against orders. Employee was doing their job.

Question 19

Yes within course of employment: Employee committing a negligent act - Employee doing their job?

Answer 19

Century Insurance v Northern Ireland Road Transport - If an employee does their job badly and acts in a careless manner then the employer can be held liable.

Question 20

Akin to employment - Not traditionally employed?

Answer 20

Mohamud v Morrison’s supermarket -

1) What is the nature of his job.

2) The court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice.