vicarious liability Flashcards
vicarious liability
Makes a person liable for another person’s tort.
This requires some kind of legal relationship between the two.
Vicarious liability is a form of Strict Liability.
Justification:
Protects claimant
Protects the employee
stages
Stage 1: Employee must commit a tort.
N.b. if the employee would have any defences then the employer can raise these.
Stage 2: worker must be an employee not an independent contractor
Stage 3: Must be acting in the course of employment.
the control test (original test)
An independent contractor is told what to do.
An employee is told what to do and how to do it.
Walker v Crystal Palace FC (1909)
integration test
Stevenson, Jordan and Harrison v MacDonald and Evans (1952) stated that the more closely the worker is involved in the core business of the employer – the more likely he is to be an employee.
This works for doctors, lawyers and teachers in most instances
the multiple test
Ready Mixed concrete v minister of pensions (1968)
When it is unclear the court looks at a set of factors and weighs up what status is a best fit. These factors are:
-Are they paid a regular salary or commission?
-Do they payincome tax and NI as an employee or self-employed person?
-Whether the contract describes the worker as an employee or not
-Whether the worker is able to delegatehis work to another without permission
-Does he have his own equipment,premises or hire his own helpers?
multiple test- It can be unclear but it appears there must be3 things shown in order for them to be employed
1.Control-is the employer to some degree in charge of the worker and the work being carried out.
2.Personal performance -I.e. he cannot delegate to someone else. See Echo and Express Publications v Tanton
3.Mutuality of obligation -this means the employer is obliged to pay the worker and the worker has an obligation tobe available under the terms of the contract. See a Carmichaelv National Power
Stage 3The employee must be acting “in the course of employment”
This includes:
1.An authorised act
2.An authorised act carried out in an unauthorised way.
3.Anact that,while not part of the employee’s job, is nevertheless soclosely connected with the employment that it isfair and just to hold the employer liable.
Century insurance v Northern Ireland transport board (1942)
An employer will be vicariously liable where an employee is doing their job in a negligent way
road traffic accidents issues
Journeys to and from work are usually outside the course of employment.
Journeys in work hours will normally be covered.2 specific issues often arise.
1. giving unauthorised lifts -Conway v Wimpey
2. deviation from route – question is how significant the deviation is (are they “on a frolic of their own”)Storeyv Ashton
the control test- what about highly skilled workers?
One attempt to fix this was the integration test.
integration test- But what about the school accounts manager?
the multiple test
Authorised Acts
Beardv London General Omnibus-Employer not liable as act was not authorised
can be impliedly authorised- Harvey v RG O’Dell employer was liable as a day-long job would requirethe employee to travel out to get lunch.
Vicarious liability can exist when theemployee isdoing an authorised act in a careless orincorrect fashion- CenturyInsurance v Northern Ireland Road Transport Board ,employer liable
Authorised Act – Expressly forbidden method
Limpus vLondon General Omnibus
Company had exoressly told drivers not to block or race buses from other companies. Nevertheless the employeedid obstruct a bus, causing an accident.
Held: Employer liable. The driver wasdoing the employers business the fact he was doing so inforbidden way was irrelevant.
An Act “so closely connected” to the employment
Lister vHesley Hall -a warden at acare home sexually abused anumber of boys in his care.
Clearly this is an “unauthorised act” so under the traditional law the employer would not be liable.
Held:Employer liable -HoL introduced a new test. “were the acts so closely connected with his emlployment that it was fair and just to hold the employer liable?
in an exam
explain negligence first:
duty
breach
risk factors
damage
Walker v Crystal Palace FC (1909) control test
a person would be considered a contractor if they were engaged by the employer to do a particular task, but allowed discretion as to how and when you do it
