vicarious liability Flashcards
vicarious liability is
a means of imposing liability on someone other than the tortfeasor, also known as the ‘‘man of straw’’ - you cant get money for a man of straw
three elements of VL
- was a tort committed?
- was the tortfeasor an employee?
- was the tort committed during the course of employment?
was a tort committed?
Name the tart e.g. negligence
was the tortfeasor an employee?
no VL for torts committed by an independent contractor
Barclays v Various claimants
Barclays v Various claimants
Barclays hired a doctor to conduct a medical exam and received a fee per exam. 126 claimants made allegations of serious sexual assault against the doctor. SC reversed decision of C of A due to the fact the doctor was paid for each client , he had other patients, he did it in his own name and had own medical insurance
INDEPEDANT CONTRACTOR
Traditionally 3 main tests;
> control test
the ‘integration’ test
the multiple test (currently the main test)
Multiple test
a person should be considered an employee if the following statements are satisfied;
- person agrees to provide work + skill for an employer in return for payment
- he or she agrees to be subject to employer control
- the terms of the contract are consistent with the existence of an employment contract
what else is considered in the multiple test
> how is the tortfeasor paid
who pays tax and NIC
who decides working hours, responsible for sick pay and holiday pay
who provides tools and materials
Ready mixed concrete
drivers used were independent contractor due to ownership of the lorries and risk of loss even though they had to wear uniform and it had to be company colours
‘employment like’ relationships
Cox v Ministry of Justice
ministry of justice were liable as the relationship between a prisoner and prison service was similar to that of an employer and employee
prison caterer killed when a prisoner dropped a bag of rice on her back
the cox test;
- was harm wrongfully done by a person whose activities are an integral part of Ds business + for the benefit of the business?
- was the risk of harm occurring caused by D assigning that activity to that person?
sufficiently similar relationships
> church and priest
charity and volunteer worker
local council and foster parenyts `
JGE v Trustees of Plymouth
priest carried out sexual abuse of a child. Church argued there was no formal employment relationship.Court found that it was ‘‘sufficiently close to employment’’. The abuse was only possible due to his job role
Was the tort committed during the course of the employment?
Joel v Morrison if the employee is on a ‘frolic of his own’ the employer will avoid liability
Salmond test
'’in the course of employment vs frolic of his own’’
in the course of employment includes;
> a wrongful unauthorised act
>an authorised act in an unauthorised manner