Vicarious Liability Flashcards
Define vicarious liability
when the law makes one party liable for the tort of another
What is VL usually in the con text of?
employer/employee context
What kind of tort is VL?
strict liability tort and does not require the proof of fault on the part of the employer
the tortfeasor must be an employee not an..
independent contractor
Name the four tests used to determine whether a TF is an EE or an independent contractor
- The control test
- The integration or Organisation test
- The multiple economic reality test
- Akin to employment test
What is the control test?
A worker is an employee if the employer tells them what to do and how to do it
Name the case for the control test
Walker v Crystal Palace Football Club
Main facts of Walker v Crystal Palace Football Club
A football player was an employee because his employer maintained a high degree of control over his training and procedures
What is the integration or organisation test?
Where a worker is more likely to be considered an employee the more integral they are to the business
Name the key case for integration/organisation test
Stevenson v McDonald
Who established integration test in Stevenson v McDonald/
Lord Denning
What is the multiple economic reality test?
where the court will weigh factors indicative of an employee against factors indicative of an independent contractor and decide which outweighs the other
Name the key case for multiple economic reality test
Ready Mixed Concrete v Minister of Pensions
Main facts of Ready Mixed Concrete v Minister of Pensions
Workers were considered independent contractors as they owned their own major assets and profit depended on their own decisions.
What case reinstated an ‘independent contractor’ defence?
Barclays Bank v Various Claimants
Main facts of Barclays Bank v Various Claimants
Because the doctor was paid per report, was free to refuse work and carried his own insurance he was not classed as an employee and the employers were not liable.
When is the akin to employment test used?
When there is not a ‘normal’ relationship of employment
Key case for akin to employment test?
Cox v MOJ
Main facts of Cox v MOJ
a prisoner was treated as an employee of the Ministry of Justice as the relationship between prisoner working in the kitchen and the MOJ was ‘akin to employment’.
Name the first criteria needed for akin to employment
D has the means to compensate the TF and can be expected to be insured.
Name the second criteria needed for akin to employment
the tort was committed as a result of activity being undertaken by the employee on behalf of the employer
Name the third criteria needed for akin to employment
the activity was likely part of the business of the D (even if not for profit)
Name the fourth criteria needed for akin to employment
the employer, by employing the employee to carry on the activity will have created the risk of the tort being committed.
Name the fifth criteria needed for akin to employment
the employee is, to a greater or less degree, under the control of the employer
