Vicarious Liability

Question 1

When does vicarious liability arise?

Answer 1

It arises where an employer is liable for the torts, and sometimes crimes, of their employees, as first defined by SIR JOHN SALMOND in 1907, and recently developed from LISTER v HELSEY HALL (2002) to BARCLAYS BANK v VARIOUS CLAIMANTS (2020).

Question 2

Who is C ?

Answer 2

C is the claimant who has suffered harm.

Question 3

Who is D and who may they be vicariously liable for ?

Answer 3

D is the employer who may be vicariously liable on behalf of TF, the employee, who is the tortfeasor.

Question 4

Who is D and who may they be vicariously liable for ?

Answer 4

D is the employer who may be vicariously liable on behalf of TF, the employee, who is the tortfeasor.

Question 5

Who is D and who may they be vicariously liable for ?

Answer 5

D is the employer who may be vicariously liable on behalf of TF, the employee, who is the tortfeasor.

Question 6

What is the 1 of the 2 rules for the tortfeasor?

Answer 6

The tortfeasor must be an employee or in a position ‘akin to employment’.

Question 7

What is the 2nd rule for the tortfeasor?

Answer 7

There must be a ‘close or sufficient connection’ between the tortfeasor’s wrongdoing and their employment.

Question 8

What are the 3 traditional tests used under the Salmond Approach to determine if a tortfeasor is an employee?

Answer 8

The court would use the control test (is the employer in control of the employee?), the integration test (is the defendant’s work fully integrated into the employer’s organisation?), or the economic reality (multiple) test (regular salary, payment of tax?).

Question 9

When is the “akin to employment test” used ?

Answer 9

Now, where there is doubt as to whether the tortfeasor is an employee, the “akin to employment test” will be used as first set out in JGE v TRUSTEES OF PORTSMOUTH CATHOLIC TRUST.

Question 10

What case stated the 5 criteria which can make it fair, just and reasonable to find a relationship ‘akin to employment’ ?

Answer 10

The Christian Brothers Case, stated by Lord Phillips

Question 11

What is the 1st criteria?

Answer 11

(1) If the employer is more likely than the employee to have the means to compensate the victim and can be expected to have insurance.

Question 12

What is the 2nd criteria?

Answer 12

(2) The employee was under the control of the employer.

Question 13

What is the 3rd criteria?

Answer 13

(3) The employee’s activity was part of the employer’s business activity.

Question 14

What is the 4th criteria?

Answer 14

(4) The activity was undertaken on the employer’s behalf.

Question 15

What is the 5th criteria?

Answer 15

(5) The risk was created by the employer by employing the employee to carry out the activity.

Question 16

Which case confirmed the “akin to employment” test and which applied to it ?

Answer 16

The test was subsequently confirmed in COX v MINISTRY OF JUSTICE, which focussed on tests 3, 4 and 5, in ARMES v NOTTS CC, and in BARCLAYS BANK v VARIOUS CLAIMANTS.

Question 17

What did Lady Hale emphasise about the test in BARCLAYS BANK v VARIOUS CLAIMANTS?

Answer 17

Lady Hale clarified that each case should be judge separately on its own facts.

Question 18

(IF RELEVANT) Are employers vicariously liable for the torts of independent contractors?

Question 19

(IF RELEVANT) Can responsibility for a rot be shared between more than 1 employer ?

Question 20

What is required for the 2nd rule in determining vicariously liability?

Question 21

Why is the ‘akin to employment’ test now favoured ?