Vicarious Liability Flashcards
Complete VL
To establish VL against an employer what 3 things must a claimant show?
-That the tortfeasor has committed a tort
-Tortfeasor must be an employee or in a position akin to an employee
-The tort committed by the tortfeasor must occur in the course of employment
What is vicarious liability?
When the law makes one person liable for a tort committed by another
What two types of torts are there?
Non intentional tort - negligence
Intentional tort - criminal offences
Name three cases involving non intentional torts and what the tort was:
-Limpus v London General Omnibus - negligence
-Century Insurance v Northern Ireland Transport Board - negligence
-Rose v Plenty - negligence
What happened in Limpus v London General Omnibus and Century Insurance v Northern Ireland Transport board?
-driving in a manner explicitly told not to do (employer still liable)
-blowing up a petrol’s station due to the employee’s stupidity
Name a case involving intentional torts and what the tort was:
-Poland v Parr - trespass to the person
-Mattis v Pollock - trespass to the person
-Lister v Hesley -trespass to the person
What was the concern in Mattis v Pollock and Lister v Hesley?
-non-fatal offences (gbh)
-sexual offences
What is the definition of an employee?
An employee works under a contract OF service
What is the definition of an independent contractor?
An independent contractor works under a contract FOR services
What are the three traditional tests for establishing that the tortfeasor is an employee?
-Control test
-Integration test
-Economic reality test
What is the control test? and what two cases was this test illustrated in?
An independent contractor was someone who was told only what to do - whereas an employee was told what to do and how to do it: Walker v Crystal Palace FC and Mersey Docks v Coggins
What is the integrated test? and give a case which illustrated this:
states that the more closely a worker is involved with the core business of the employer, the more likely he is an employee: Cox v Ministry of Justice
What is the economic reality test ?
In cases where it is not clear whether the worker is an employee or independent contractor the courts weigh up the two sets of factors and decide which set of factors outweigh the other.
What factors might a court look at when weighing up the factors in the economic reality test?
-the employee agrees to provide work or skill in return for a wage
-the employee expressly or impliedly accepts that the work will be subject to the control of the employer
-whether the worker pays income tax and national insurance contributions as an employee or as a self-employed person
-whether the worker has the ability to delegate his work to another without permission
-all other considerations in the contract are consistent with there being a contract of employment rather than any other relationship between the parties
What do you do if the conventional/traditional tests are not appropriate?
You look to see if the role is one akin to employment.
In which case was the akin to employment approached addressed in?
The Catholic Child welfare Society and others v Various Claimants and The Institute of the Brothers of the Christian Schools and others
What are the 5 factors taken into account when addressing ‘akin to employment’ ?
-The organisation is more likely than the individuals to have the means to compensate victims
-The individuals committed the act as a result of activity it undertook on behalf of the organisation
-The individuals activity was likely to be part of the organisations business activity
-The organisation created the risk of the act being committed by the individual
-The individual was, to a greater or lesser degree, under the control of the organisation
What are the facts of Armes v Nottinghamshire County Council?
The foster parents abused their foster child and it was considered whether the council who placed the child with them could be vicariously liable. They were found liable for the actions of the parents
What test is used for non-intentional torts committed in the course of employment? Explain:
Salmond test - An employer will be held liable for either a wrongful act they have authorised, or a wrongful and unathourised mode of an act that was authorised
What 2 issues must be looked at when using the Salmond test?
-Circumstances where a non-intentional tort falls within the course of employment
-Circumstances where a non-intentional tort doesn’t fall within the course of employment
What 3 circumstances are where a non-intentional tort falls within the course of employment? Give a case for each:
-Expressly or implied authorised acts (Poland v Parr)
-Acting in an unathorised manner (Limpus v London General Omnibus)
-Acting in a purely careless manner (Century Insurance v NITB)
What 3 circumstances are when non-intentional tort doesn’t fall within the course of employment? Give a case for each:
-Activities not within the scope of employment (Beard v London General O)
-A frolic of his own (Storey v Ashton)
-Giving unathorised lifts (Twine v Bears Express)
What new test came from the Bazley v Curry case in Canada?
The close connection test
What question is asked when applying the close connection test?
Whether the wardens torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable
What do the courts have to do when applying the close connection test?
Establish a ‘close connection’ between what the employee was employed to do and the employee’s conduct
What are the 2 stages of the close connection test?
-Is the relationship capable of giving rise to VL?
-Was there a sufficiently close connection between the tortious act and the relationship between the defendant and the tortfeasor?
Name two cases use the close connection test:
-Lister v Hesley Hall Ltd
-Mohamud v WM Morrisons Supermarkets
-Mattis v Pollock
