vicarious liability Flashcards
how to figire out if someone is an empliyer
3 tests to help distinguish this. The control test, organisation test and the economic reality test. The control test was established in Yewen V Noakens (1880) and it looks at whether the ‘employer’ has control over the work the ‘employee’ carry’s out. The organisation test looks at the difference between a contract of service and a contract for service and this is layed out in the case if Stevenson, Jordan and Harrison ltd v MacDonald and Evans (1952). In this case lord denning stated, “one feature which seems to run through the instances is that, under a contract of service, is a man who is employed as a part of the business whereas a contract for service, his work although done for the business is not integrates into it..” lastly the economic reality test looks at whether there is a contract if service. From the case of Ready Mixed Concrete ltd V minister of pensions and national insurance (1967) the high court stated that there is a contact of service if a servant agrees to a wage in return for his services to his master, he agrees that while carrying out the service he is under the others control and whether factors such as the method of payment, whether equipment is provided and working hours.
pros of vicarious liability
section of this is a ‘frolic of his own’ this describes an action an employee takes that is due to something completely unrelated to his work and as done on his own accord as a result if this happens during their employment the employer would not be liable. A case example would be Storey V Ashton (1869) ibn this case a defendant sent 2 employees on a horse and cart to deliver some wine on their way back they went and did some of their business on their own whilst doing this they hit someone with the cart and the employer was not liable due to it being a frolic of their own.
- the employer is not responsible for their actions if it happens outside the course or scope of employment. This allows there to be some restriction when it comes to who could be found liable for the actions of another. As the employer would have control over some actions the employee took during working hours however when leaving work it I completely up to them how they act and what they do and the employer has not control over it so it wouldn’t be fair to inflict liability on them for a situation and person they had no control over at that place and time. a case example would be century insurance (1942) in this case the employee was delivering petrol in a lorry when stopping of at a petrol station he lit a cigarette, and it caused an explosion.
- Allows victims to receive compensation where practically they would not be able to do so.
- Encourages employers to invest in safety and safe working practice.
- Encourages care in selecting staff.
- Encourages appropriate staff training and supervision.
- Makes it more likely the victim will receive compensation.
cons of vicarious liability
someone is to be found liable for someone else’s actions which is unfair. Although the employer has control over what times they work or the training they do they cannot control every action they do and therefore shouldn’t be liable for their mistakes.
- Based on the idea that employers have control over the employees, the premise may be flawed.
- Can make an innocent party liable for something which they have not done.
- Doesn’t take into account the new gig economy, in contemporary society there are more complex divisons of labour.
