Vicarious Liability Flashcards
What are the 3 justifications for VL?
- Protecting the C
- Protecting the employee
- Improving safety standards
What is the definition of Vicarious Liability?
A tort committed by an employee during the course of employment which makes the employer liable
After being sued, which act can the employer then sue the employee under?
Civil Liability Act 1978
What are the 3 elements to establishing VL?
- Wrongdoer has committed a tort
- Wrongdoer concerned has employee status
- During course of employment
What is the difference between a contract of service and a contract for service?
A contract of service = employment contract
A contract for service = self-employed
What are the 4 tests which can be used as methods of testing employee status?
The Control test
The Integration test
The Common Mission test
The Economic reality/ multiple test
Explain the control test
An employee is a worker who is told what to do and how to do it, whereas an independent contractor would just be told what to do. Original test. Major problem = highly-skilled workers would not be told how to do their job
What case can we use for the control test?
Dragonfly Consultancy Ltd V HMRC
What is the PoL for Dragonfly Consultancy Ltd V HMRC?
Some degree of control over the manner in which work is done will be ‘an essential ingredient of a contract of employment’. Highly-skilled workers - control will be light handed
Explain the Integration test
The more closely a worker is involved with the core business of the employer, the more likely they are to be an employee. An attempt to solve problems with the control test. But, not always certain who is integral or even what the business is
Explain the Common Mission test
Does the employer have a common mission/ purpose with the worker, so that the essential purpose of the workers activities was to further the employers objective (Child Welfare Society 2012)
Explain the Economic Reality/ multiple test
Having considered all the facts of a case, the court decides whether the overall picture of a worker is closer to an employee or independent contractor
What case can be used in relation to the Economic Reality/ multiple test?
Ready Mix Concrete V Minister of Pensions
What is the PoL for Ready Mix Concrete V Minister of Pensions?
Decided that drivers were independent contractors as they owned their own major assets and profit depended on their decisions
What are the 3 conditions for a contract of service?
- Wage or other remuneration
- Subject to other’s control to such a degree as to make that other the master
- Other provisions of the contract are consistent with it being a contract of service
What 2 other factors will the court consider?
Regular salary or commission
Whether the worker pays income tax and NI as an employee or self-employed person
What characteristics is an independent contractor likely to have?
Work from own premises, have own equipment, hire own helpers + be personally affected by investment in the business
Explain relationships ‘akin to employment’
VL extended in Child Welfare Society to cover those who were not D’s employees but with whom D had a relationship ‘akin to employment’. Uses same tests as above. Particularly relevant to wrongdoers in prison and members of religious orders
What are the 4 relevant categories held to be relationships ‘akin to employment’?
Foster parents and social services
Associate dentist and dental practice
Members of religious orders
A prisoner and owners/ operators of the prison
What case relates to ‘akin to employment’?
Cox V MoJ
What is the PoL for Cox V MoJ?
Prisoners work was ‘clearly part of the venture, enterprise or business… of the MoJ in running the prison’. The integration test was met, in addition to a degree of supervision and control exercised over the prisoner during his activities
Explain the Salmond test
An employee’s wrongful conduct is in the course of employment where it consists of either;
1. A wrongful act authorised by the employer, or
2. An authorised act carried out in an improper way
What case relates to an authorised act?
Poland v Parr
What 3 cases relate to authorised acts carried out in an improper way?
Limpus
Century Insurance
Rose v Plenty
What is the PoL for Poland v Parr?
Employer liable even though employee committed a criminal offence
What is the PoL for Limpus?
Employer liable even if they expressly prohibited the employee from doing activity
What is the PoL for Century Insurance?
Employer liable even if employee is doing the work negligently
What is the PoL for Rose v Plenty?
Employer liable even if they tell employee not to do activity
What test was introduced by Lister?
The Close Connection test
What case confirmed the Close Connection test and made it into a two part test?
Mohamund v WM Morrison Supermarkets plc
What is the 2-part test from Mohamund v WM Morrison Supermarkets plc?
Was what the employee did during field of activities )within nature of role?)
Was there a sufficient connection between the tort and role?
What is the PoL for Hilton?
When employee ‘on a frolic’ employer not liable
What is the PoL for Smith v Stages?
Travelling to and from work not usually included
