Vicarious Liability

Question 1

What are the 2 elements of vicarious liability?

Answer 1

1. Employment relationship or relationship akin to employment
2. Tort committed by employee in the course of employment

Question 2

What is the test for establishing an employment relationship?

Answer 2

The Economic Reality Test:

• Degree of control: does employer control what employee does, how they do their work?
• Remuneration in exchange for personal service and mutuality of obligations

Other factors
* Sick pay and other employment benefits
* Tax / PAYE treatment as employee
* whether tools and equipment provided by employer
* employee integrated into organisation

Question 3

What is a relationship akin to employment?

Answer 3

• Hard to establish, i.e Barclays v Claimants = described as Barclays doctor and always carried out medical checks for them however was an independent contractor.
• May be proven where fair just and reasonable to treat as analogous to employment relationship = ie carrying on activity integral to defendan’t business.
• Where an employee is on loan, presumed that original employer remains liable depending on level of control hirer has over employee.

Question 4

When is a tort considered to have been committed “in the course of employment”?

Answer 4

Close connection test: what is the closeness of the connection between the nature of employment and the tort?

• Lister v Hesley Hall: vicariously liable for house warden who abused children in boarding house.
• Mohamud v WM Morrison Supermarkets: assaulting customer as part of customer service, Morrisons vicariously liable.
• Fletcher v Chancery Lane: crossing road in uniform 40 hrs after finishing shift was not vicarious liability.

Question 5

Can the employer recover from the tortfeasor employee?

Answer 5

Yes, can recover contribution and court will allow claim if just and equitable. Employer can also claim under insurance.