Vicarious Liability Flashcards
What is vicarious liability
Liability of one person for acts done by another
Based on the maxim qui facit per alium facit per se he who acts through another is deemed in law as doing it himself
Common eg of such liability
1. Principal and agent
2. Partners
3. Master and servants
They are considered joint tort fesor and their liability is joint and several
Master servant
If a servant does a wrongful act in the course of his employment, the master is liable for it.The servant of course is also liable.
Based on the maxim respondeat superior the reason for the maximum seems to be the better position of the master to meet the claim because of his larger pocket and also ability to pass on the burden of liability through insurance.The liability arises even though the servant acted against the express instruction and for no benefit of his master
The following two essentials are to be present
1. The talk was committed by the servant
2. The servant committed the taught and the course of his employment.
Who is a servant and what is contract of service and and contract of service
In order to decide after who is the servant generally, the control test is invoked.A person is sad to be the servant of others, if he works under the control of such other.It implies ordering the servant what is to be done, how and when is it to be done.
According to Winfield Wikipedia’s liability arises from contract of service and not from contract for service. A servant is employed under contract of service, whereas independent contractor is employed under contract for service. A servant works under the direction and supervision of his master and have to obey his orders. On the other hand the independent contract of repairs scheme of work themselves and accomplishes the work assigned to him. The contract of service implies directing the servant, the mood and the manner in which the work is to be done, but in contract for service, a party makes his professional services, techniques and skills available to another party for accomplishment of the latter’s work.Therefore , he uses his own skill and knowledge for the completion of work.
Short v henderson 1946
The appellant, a dock labourer was accidently injured in the discharge of cement bags from
the motor vessel, and has claim for compensation under the Workmen’s Compensation
Acts from the respondent.
There are four indicia being set out by Lord Justice-Clerk was cited and approved by Lord
Thankerton in identifying contract of service.
• Firstly, the master must have the power in selecting his servant.
• He also had the power in determining the wages or other remuneration of his servant.
• Thirdly, he has the right to control the method on how the work is done.
• Lastly, the master has the right to suspend or dismiss the services provided by his worker.
As long as the contract of service’s principle requirement exists whereby the master is able control the method of work done reasonably, it does not matter if some elements does not exist. This factor of control and superintendence has often been considered as vital on the legal quality of the relationship.
Upon applying the principle above, the appellant is an employee of the company as the respondent had retained the right of supervision and control. Therefore, the respondent is liable to pay all the costs and expenses incurred to the appellant
Who is liable when an employee is hired to another employer?
Dual Vicarious Liability - Who is liable when an employee is hired to another employer?
It had traditionally been assumed that where an employee was lent by one employer to work for another, vicarious liability for the employee’s negligence had to rest with one employer or the other, but not both.
Mersey Docks and Harbour Board v Coggins and Griffiths (Liverpool) Ltd (1947)
A mobile crane and a driver had been hired out to a firm of stevedores under a contract which stipulated that the driver was to be the employee of the stevedores. In spite of this term, the employee’s original employer, the Harbour Board, paid his wages and retained the right to dismiss him.In the course of his work the driver negligently injured the plaintiff and the question to be
determined was whether the firm of stevedores or the Harbour Board were vicariously liable. In addressing the question, the court held that the control test was still important (although this might not be the case today), but said that other factors to be considered include:
•the type of machinery that had been loaned: the more complicated it is, the more likely the main employer will remain liable;
•who is the paymaster and who pays the employees’ national insurance contributions;
•the duration of the alternative service with the temporary employer;
•which employer retains the power of dismissal;
•whether the employers themselves have attempted to regulate the matter.
Applying these factors, the original employer, the Harbour Board, was held liable as it still had the immediate direction and control of how the crane was worked
Lord roster the most satisfactory test by which to acertain that who is the employer at any particular time is to ask that who is entitled to tell the employee the way in which he is to work upon which he is engaged.
Lord dennings just as with employers.Who let out the man with the machine?So also with the employer who finds out a skilled man to do the work for another.The general rule is that he remains the servant of general employer throughout
