Vicarious liability

Question 1

Vicarious liability

Answer 1

Where one person is held legally liable for the torts committed by someone else

Question 2

Criteria to prove

Answer 2

Trustees of the Barry Congregation of Jehovahs witness v BXB

1) The tortfeasor must be an employee of the employer using the traditional tests of employment or there is a relationship akin to employment between the tortfeasor and the employer
2) The tortious actions must either fall within the course of employment or for criminal intentional torts they must be sufficiently closely connected to the employment.

Question 3

Factor 1

Answer 3

Tort committed by the tortfeasor:

There must be an actionable tort, unintentional (Negligence) or intentional (Criminal activity)

Question 4

Factor 2

Answer 4

Relationship of employment, or ‘akin to employment.

Conventional and modern tests.

Question 5

Control test

Answer 5

Has the power to select employee, control method of working, suspend or dismiss them and pays wages (mersey docks)

Question 6

Integrated test

Answer 6

Is the employee fully integrated into the business, or just an accessory? (Stevenson)

Question 7

Economic reality test

Answer 7

Work/skills provided in return for payment, terms are consistent with existence of a contract (Ready mixed concrete)

Question 8

Christian brothers criteria “akin to employment”

Answer 8

1) The employer has the means to compensate
2) Tort is committed as a result of activity taken by employee on behalf of employer
3) Employee’s activity is part of the business activity
4) Employer created risk of tort being committed
5) Employee to a degree is under the control of employer

Question 9

Employer is not vicariously liable when there is an “independent contractor”

Answer 9

(Barclays Bank)

Question 10

Factor 3

Answer 10

Occurs in the course of employment or is closely connected: (Morrisons v Various Claimants)

“Whether the wrongful conduct of the employee was so closely connected with the acts the employee was authorised to do, that it may fairly and properly be regarded as done by the employee while acting in the course of employment”

Question 11

Sufficiently close test

Answer 11

1) what is the nature of the job? What activities were entrusted by the employer to the employee?
2) is there sufficient connection between this position, and the wrongful conduct to make it right under principle of social justice?