Vicarious Liability

Question 1

Elements necessary to establish liability?

Answer 1

1. Are they employee?
2. Was employee acting within scope of employment?

Question 2

Relationship of employee/ employer?

Answer 2

Employer cannot be made liable for acts of independent contractor
(Chauffeur / taxi)

IC: contract for services

Employee: contract of service

Question 3

Control test?

Answer 3

Considered to be employee if:

1. What worker did
2. How he was to do it
3. When he was to do it

Performing rights society v booker 1924 (dancehall)
Adopted in Roche v Patrick Kelly

Question 4

Integration Test

Answer 4

CT became inadequate with rise of specialised jobs

Stevenson, Jordan v McDonald Denning proposed IT: if work integral to business worker is employee
If it’s ancillary they’re contractor

Strict adjerensc can deny compensation due to lack of employer control over surgical procedures

FT medical staff widely considered employees (Odonovsn v Cork CoCo)

Distincts between public/ private patients affect VL
Bolton v Blackrock clinic

Question 5

Mixed Test

Answer 5

Modern employment sole reliance on control outdated

Ready mixed concrete v minister for pensions 1968 emphasised shift

Henry Denny & Sons 1998

Phelan v Coolte Teo 1993 worker deemed employee for VL purposes underscores importance of examining individual circumstances rather than relying on strict rules

Question 6

Acting in course of employment?

Answer 6

Limitations on EL:

Temporal: outside normal work hours

Spatial: exclude actions away from Wp

Functional: employee strays from job duties

Question 7

Within scope of employment case law?

Answer 7

Williams v Morrisey (cow)

Grace v Belfast tramway (horses)

Hough v Irish base metal: employer not liable for injuries from prank

Kennedy v Taltech supervisors prank led to employer liability

Question 8

Detour & Frolic?

Answer 8

Key difference lies in extent of deviation from work duties
Assessed with common sense

O’Connell v Bateman (lorry personal use)

Mattis v Pollock

Question 9

Intentional wrongs?

Answer 9

Not liable if outside SOE

Daniel’s v Whetstone 1963
(First act within scope)

Question 10

Delahunty v south eastern health board?

Answer 10

HB not liable as had no control over HP/ school considered VL (employer responsibility for unauthorised acts)

Considered bazely v curry & jacobi v Griffith’s & lister v Hesley Hall

Higgins: couldn’t claim Hp actions closely connected to employment/ school in breach of DOC for failing to act on concerns of HP suitably

Question 11

O’keefe v Hickey?

Answer 11

Followed Delahunty

Fennely: referred Bazley & lister, argued CC between duties & wrongful acts justified EL citing cases where E liable for criminal acts

Hardiman: opposed broadening VL, argued L should only be imposed if significant control

Concluded VL requires CC between employees told & wrongful act

Question 12

Sexual abuse by teachers?

Answer 12

Canadian & Hol expanded liability to sa by teachers but only when strong connection between duties & wrongfulnsct

Ordinary relationships in day schools dont typically meet criteria

SC has not definitely addressed

Safer approach might be employers have ND DOC to victim, however has challenges with intentional wrongdoing

EC has advanced law (various claimants v catholic child) inc joint VL & relationships akin to employment

IC may follow lead focusing less on control & more on integration to business operations