Vicarious Liability Flashcards
What is meant by ‘Vicarious Liability’
term used to explain the liability of one person for the torts committed by another.
What is Vicarious Liability and what is the only situation where vicarious liability can apply?
Method of making an employer LIABLE to pay damages instead of an employee
The only situation where vicarious liability can apply is where an employee has committed a tort, such as negligence.
What defences are available to VL?
none! As it is a strict liability offence
Who are the three parties in vicarious liability
Employer, Employee, Victim -
in the scenario you need mention of three different entities - usually
1: NAME OF COMPANY
2: EMPLOYEE
3: VICTIM
What two things must be proved to establish vicarious liability?
1) The D is an employee
2) There is a sufficiently close connection between the employee’s field of activities (job) and the wrongful conduct
(element 1) What test is used to establish if someone is an employee and what case established this
Economic Reality Test
Established in Ready Mixed Concrete v Minister of Pensions
(element 1) What are the three stages of the Economic Reality Test
1) Employee provides work in return for a wage
2) The employee accepts that the work is subject to the employers control
3) All other factors are consistent with the existence of an employment contract
e.g considerations such as, method of payment, working hours and level of independence
(element 1) What is the real question when establishing if someone is an employee with case law example
We know from the scenario they are doing work for money, the question is if they are an INDEPENDENT CONTRACTOR (paid per job) or given a wage / salary regardless of work
Vicarious Claimants v Barclays - doctor found to be an IC as he got paid per medical
What is the second element of VL and how is this established
Sufficiently close connection test originated Lister v Hesley Hall
Must establish there a sufficiently close connection between the field of activities (job) and the wrongful conduct to make the employer liable under the principle of social justice
What is the term used for an employees action/ crime unrelated to the employment with case law
‘Frolic of his own’ Storey v Ashton
How do you apply a close connection with case!
(2 things)
1) Identify the job
2) Establish if what they did has anything to do with what they are employed to do
is related to the job - Mohamud v Morrisons
is not related to the job - Morisons v Various Claimants
FOR VICARIOUS
Can be justified by the idea that if someone whom an employer has a degree of control makes a mistake, then it should also be the employer shares some responsibility for this.
- Must be in the course of employment otherwise the employer will not be liable – seems fair and appropriate.
The test to establish if a person is an employee takes into account a common-sense approach by considering aspects such as, does the employer exercise a degree of control, level of independence and responsibility for providing equipment.
Perhaps vicarious liability is a fair policy as employers are potentially in a better financial position to pay compensation as opposed to the employee.
Employers are in charge of the conduct of employees and therefore it is fair that they are responsible. However, consider the position of more modern approaches to work e.g flexible working.
Is it fair that employers can be liable for the unlawful acts of employers even when
they are unaware that the employees are committing crimes? Catholic Church
Welfare Society v Institute of the Brothers of the Christian Schools 2012.
- Despite tests and case law there can still be confusion over whether a person is an employee or an independent contractor.
It is fair if there is no liability on an employer when an employee is on a frolic of his own.?
Is it fair that there are times when an employer could be liable for the acts of a contractor.
As employers take profit from the work of their employees then they should be liable.
Employers hire and fire their employees and so should not employ those who are a ‘risk.’
It is positive that an employer may be encouraged to ensure safe working practices.
