vicarious liability

Question 1

vicarious liability is

Answer 1

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

Question 2

three elements of VL

Answer 2

1. was a tort committed?
2. was the tortfeasor an employee?
3. was the tort committed during the course of employment?

Question 3

was a tort committed?

Answer 3

Name the tart e.g. negligence

Question 4

was the tortfeasor an employee?

Answer 4

no VL for torts committed by an independent contractor
Barclays v Various claimants

Question 5

Barclays v Various claimants

Answer 5

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

Question 6

Traditionally 3 main tests;

Answer 6

> control test
the ‘integration’ test
the multiple test (currently the main test)

Question 7

Multiple test
a person should be considered an employee if the following statements are satisfied;

Answer 7

1. person agrees to provide work + skill for an employer in return for payment
2. he or she agrees to be subject to employer control
3. the terms of the contract are consistent with the existence of an employment contract

Question 8

what else is considered in the multiple test

Answer 8

> 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

Question 9

Ready mixed concrete

Answer 9

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

Question 10

‘employment like’ relationships
Cox v Ministry of Justice

Answer 10

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

Question 11

the cox test;

Answer 11

1. was harm wrongfully done by a person whose activities are an integral part of Ds business + for the benefit of the business?
2. was the risk of harm occurring caused by D assigning that activity to that person?

Question 12

sufficiently similar relationships

Answer 12

> church and priest
charity and volunteer worker
local council and foster parenyts `

Question 13

JGE v Trustees of Plymouth

Answer 13

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

Question 14

Was the tort committed during the course of the employment?

Answer 14

Joel v Morrison if the employee is on a ‘frolic of his own’ the employer will avoid liability

Question 15

Salmond test

Answer 15

'’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

Question 16

Poland v parr

Answer 16

employee assaulted a boy who tried to steal from his employers wagon. Employer liable as it was in the course of employment and the employer instructed them to protect the wagon at all costs.

Question 17

authorised act in an unauthorised way

Answer 17

> Limpus v London Omnibus- a bus driver instructed not to race bases but did anyway. employer LIABLE as driver was in course of employment doing what he was employed to do.

> Beard v London Omnibus -bus conductor drove the bus + injured C. Employer NOT LIABLE, on a ‘‘frolic of his own’’ due to him doing something not employed to do

Question 18

Careless/negligent employee

Answer 18

Century Insurance v NI transport - Tanker driver employed to deliver petrol, lit a cigarette and caused an explosion. Employer LIABLE, in the course of employment. He was doing his employed job, even though negligently

Question 19

unauthorised lifts

Answer 19

> Rose v Plenty - milkman used 13yr old boy to help deliver milk despite instructions not too + the boy got injured. Employer LIABLE, in the course of employment as the employer benefitted from the work done by the boy

> Twine v Beans express - hitchiker killed through negligence of a driver who had been forbidden to give lifts. Employer NOT LIABLE, ‘‘frolic of his own’’ as he was unauthorised and employer gained no benefit

Question 20

The ‘close connection’ test

Answer 20

> Lister v Hesley Hall
Mattis v Pollock
Mohamud v Morisons
N v CCof west Merseyside
Uber v Aslam

Question 21

Lister v Hesley Hall

Answer 21

the warden of a school for children with emotional difficulties sexually assaulted some of the children.Employer was LIABLE.
HL stated that a employer will be VL ‘‘provided that there is a sufficiently close connection between the acts of the employee and the employment’’

Question 22

Mattis v Pollock

Answer 22

bouncer employed to keep order outside a night club inflicted serious injuries on a customer. Nightclub VL as he was encouraged to use force + be intimidating - actions closely connected with his work

Question 23

Key questions formulated in Mohamed v Morrisons

Answer 23

a man employed at Morisons petrol station assaulted a customer, causing serious injuries
1. what is the nature of the job entrusted to the tortfeasor?
2. is there a sufficient connection between the position in which the tortfeasor is employed and their wrongful conduct to make it right for employer to be liable?

Question 24

N v CC of west merseyside

Answer 24

off duty police officer offered to take a young women home from a club ho was beloved to be on drugs. He took her back to his house + raped her. No close connection between his conduct + his employment.
D had used his uniform to gain trust and abuse it

Question 25

Uber v Aslam

Answer 25

25 über drivers claimed, to the employment tribunal, that they were workers rather than self-employed + deserved to be paid minimum wait and paid leave