vicarious liability Flashcards
definition
Vicarious liability is the liability of one person for a tort com-mitted by another. So vicarious liability is** liability without fault**
vicarious liability of employers
Three issues must be considered:
*Was a tort committed by the employee?
*By an employee (employee-employer relationship)?
*In the course of employment?
An employer’s vicarious liability applies to:
*A tort committed by an employee against some other person (for example, a customer of the business); and
*A tort committed by an employee against a fellow employee.
By an Employee?
An employer is vicariously liable for the tort of an employee committed during the course of their employment.
To determine whether someone is an employee rather than an independent contractor,various tests have developed:
a.Earlier Approaches
In earlier case law the courts relied on a test based on control: Did the employer have the right to control the method of doing the work?
The courts also developed a test based
on** integration: An employee works as an integral part** of the employer’s business, whereas an independent contractor’s
work is only accessory to the business.
b.Modern Approach – Economic RealityTest
These factors of control and integration remain relevant, but
the modern approach is to apply them as part of a wider test which looks at** the economic reality** of the relationship.
To determine the tortfeasor’s status as employee or independent contractor under the modern test, a range of factors are taken into account, including:
*Personal service – Does the employee agree, in return for a salary, to carry out the work personally?
*Control – Does the employer have the right to control how the work is done?
*Ownership of tools, etc. – Which party owns and provides work equipment? Is there a requirement to wear the employer’s uniform?
*Chance of proft and risk of loss – Which party takes the financial risk from the work being carried out?
*Contractual provisions – Are other provisions of the contract consistent with the relationship being one of
employer-employee?
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In the Course of Employment?
- The court must be satisfed that there was a close connection between the tort and the work the employ-ee was employed to do. The court will ask:
*Was the tort so closely connected with the task the employee was employed to do that it would be fair and just to hold the employer liable? - Recent authorities have formulated two questions to evaluate this test:
（1）What functions or field of activities have been entrusted by the employer to the employee?
（2）Was there a sufficient connection between the position in which they were employed and their wrongful conduct to make it right for the employer to be held vicariously liable?
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specifc situations when tortious conduct may be
regarded as within the course of employment.
1.Negligence of the Employee
2.Criminal Actions of Employees
It is not a bar to vicarious liability that the tort committed by the employee was also a criminal act. As noted above, the test depends on the closeness of connection between the wrongful act and the task which the employee was employed to do.
3.Disobedience to Instructions
Whether this takes the employee outside the course of employment depends on the effect of the prohibition. A prohibition may limit the scope of employment, so breach would put the employee outside the course of em-ployment. In contrast, a prohibition may only limit the manner in which employment is to be carried out. Breach would not put the employee outside the course of employment.
4.Deviations from an Authorised Journey
An employee driving the employer’s vehicle to do the job for which they are employed is clearly acting within the course of their employment. However, what happens if such an employee deviates from the authorised journey and commits a tort during the course of the deviation?
Case law shows that whether a deviation from the authorised route takes the employee outside the course of their employ-ment is a question of degree. The extent of the deviation in time or distance may indicate that the employee has started on a separate independent journey for a purpose of their own. In such a case, the employee is unlikely to remain within the course of employment. On the other hand, a minor deviation, not amounting to a new and separate journey, is unlikely to take the employee outside the course of employment.
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EXTENSION OF VICARIOUS LIABILITY
TO RELATIONSHIPS AKIN TO EMPLOYMENT
- Until recently the law distinguished between two types of relationship – either** a person was an employee** (under a contract of service) or they were **an independent contractor **(under a contract for service).
- Employers can be vicariously
liable for the torts of their employees, but they are not vicariously liable for torts committed by their independent contractors. - Currently the law has recognised a third category of workers: those who are not technically an employee but who have a relationship ‘akin’ to employment. This relationship is sufifciently analogous to employment to make it fair, just, and reasonable to impose vicarious liability.
factors considered
1. The tort was committed as a result of an activity undertaken by the tortfeasor on behalf of the defendant;
2. The tortfeasor’s activity is an integral part of the defendant’s business activity (rather than the tortfeasor’s own independent business); and
3. The defendant created the risk of the tort by assigning the activity to the tortfeasor.
independent contractor
breach of employer’s own duty
An employer engaging an independent contractor may
become personally liable (rather than vicariously liable) for a
tort committed by the independent contractor. This may arise when:
*The employer is in breach of their own nondelegable
duty of care; or
*The employer is in breach of their own duty to take rea-
sonable care in selecting a competent contractor.
Nondelegable Duties of Care
1.Employer’s Duty to Employees
As noted in the chapter on Employers’ Liability, the duty
of care owed by an employer to its employees is personal
and nondelegable. If an employer engages an independent
contractor to carry out activities within the scope of the
employer’s duty, the employer’s own duty is breached if the
contractor does not take reasonable care. This is because
the nondelegable duty is a duty to see that reasonable care
is taken. In this situation, the employer is not being made vi-
cariously liable for the contractor’s negligence. The employer is in breach of its own, nondelegable duty of care.
2.Other Nondelegable Duty Situations
A nondelegable duty of care is owed when an independent
contractor is engaged to carry out an extrahazardous activ-
ity, such as work on the highway or work inherently likely to
cause a nuisance. Nondelegable duties of care have also
been recognised in other situations, such as a school’s non-
delegable duty of care to pupils.
factors considered when determing a employer-employee relationship
- employee agrees personally to provide their skill and work
- employee agrees to subject to the employer’s control
- contract terms are consistent with employment
establishing course of employment
- the act is incidental to the employee’s work
- act impliedly or expressly authorized by the employer
- authrozied act carried out wrongly or negligently
