Vicarious liability Flashcards
Vicarious liability stage 1
- Stage one asks whether the worker is an employee or an independent contractor. For obvious cases, we use the multiple test:
Ready mix concrete vs Minister of pensions- held the following factors were important when establishing who is an IC or an employee:
1- Whether a wage, national insurance, and tax is being payed
2- who provides tools/ equipment?
3- whether the worker has to obey orders
4- The exercise of control over how work is done
5- the acceptance of any business risk.
6- The power to hire/ fire replacements
Vicarious liability stage 1 part 2
For times when it is not obvious, we use the akin to employment test established in Christian Brothers:
1- The employer is more likely to have insurance/ be able to compensate the victim
2- The act is committed by the employee on behalf of the employer.
3- The employees activity is likely to be part of the business activity of the employer
4- The employer by employing the employee created the risk of the act being committed
5- The employee will have been under the control of the employer
- or they are an IC, and the employer will not be liable
Vicarious liability stage 2
- Stage 2 questions whether the employee was acting within the course of their employment (They were doing what they were supposed to do).
- Establish whether they were acting inside the course of their employment using the factors.
Vicarious Stage 2- when will employer be liable?
An employer will still be liable even if the employee was:
1- Acting excessively (Vasey)
2- Negligently (Centuries Insurance)
3- In an unauthorised way (Rose v Plenty)
4- Criminal act (Morrisons vs Mohamud)
5- abused students (Lister vs Hesley hall)
Vicarious stage 2- when will an employer not be liable
- An employer will not be liable if the employee was:
1- Doing something completely unrelated to their job (Heasemans vs Clarity cleaning)
2- Committing a frolic of their own (Storey vs Ashton)
3- Personal vendetta (Morrisons vs various claimants)
