Vicarious Liability Flashcards
What is the first step of VL?
The D (name) may be liable for C’s actions under VL. VL is where the employer is liable for the employees negligence. 2 stages to prove:
What is the first stage?
Firstly, it must be decided if the worker is an employee or an independent contractor. Use test —
Multiple test - Ready mix concrete v Minister of pensions - it was held these following conditions are the most importantly way of deciding if D is an employee or independent contractor.
1. Whether a wage, tax and national insurance is being paid.
2. Who is providing the tools/ equipment
3. Whether worker has to obey orders
4. Exercise of control over how work is done
5. Acceptance of any business risk
6. Power to hire/fire any assistance or replacements
What test should you use in doubtful cases?
Use the ‘akin to employment’ test, Christian Brothers.
1) Employer is more likely to have insurance/ compensate the V.
2) The act is committed by the employee on behalf of the employer
3) The employees activities is likely to be part of the business activity of the employer
4) The employer by employing the employee created the risk of act being committed
5) the employee will have been under the control of employer
Or what else?
They are an independent contractor and therefore D will not be vicariously liable (Barclays Bank v Various C’s)
What is stage 2?
We need to question “whether the employees acts were to closely connected with the acts the employee was authorised to do that, it may fairly and properly be regarded as being done in the ordinary course of his employment” This means that they were doing what they were supposed to do.
What else to include?
An employer will still be liable, even if employee was
- acting excessively (Vasey)
- negligently (Centuries Insurance)
- in an unauthorised way (Rose v Plenty)
- criminal act (Morrisons v mohamud)
- or abused students (Lister v Hesley Hall)
Why won’t an employer be liable?
if employee was:
- doing is whinging completely unrelated to their job (heasemans v clarity cleaning)
- commitibg a frolic of their own (Storey v Ashton)
- personal vendetta (morrisons v various c)
What is the side rule?
Travelling to and from work - normally not in the course of employment, however the employer may be liable if the employee is being paid to travel or is given travel expenses- Smith v Stages.
